Littlejohn v. Timberquest Park at Magic, LLC

• Court: U.S. District Court — District of Vermont
• Writing for the Court: GEOFFREY W. CRAWFORD, District Judge.
• Citation: Littlejohn v. Timberquest Park at Magic, LLC, 116 F.Supp.3d 422 (D. Vt. 2015)
• Decision Date: 21 July 2015
• Docket Number: Case No. 5:14–cv–200.
• Parties: Joseph P. LITTLEJOHN, Plaintiff, v. TIMBERQUEST PARK AT MAGIC, LLC, and Corporate Challenge, Inc., d/b/a Adventure Más, Defendants.

116 F.Supp.3d 422

Joseph P. LITTLEJOHN, Plaintiff,

v.TIMBERQUEST PARK AT MAGIC, LLC, and Corporate Challenge, Inc., d/b/a Adventure Más, Defendants.

Case No. 5:14–cv–200.

United States District Court, D. Vermont.

Signed July 21, 2015.

Daniel L. Burchard, Esq., Thomas E. McCormick, McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT, for Plaintiff.

Andrew A. Beerworth, Esq., Robert G. Cain, Paul Frank Collins PC, Burlington, VT, Heather Z. Cooper, Rodney Edward McPhee, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT, for Defendant.

AMENDED OPINION AND ORDER RE: DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT (Docs. 44, 46 & 52)

GEOFFREY W. CRAWFORD, District Judge.

Plaintiff Joseph Littlejohn was severely injured while participating in an adventure zip-line course at Magic Mountain Ski Area in Londonderry, Vermont on October 5, 2013. He claims that defendants negligently designed, constructed, and operated the course, leading to the accident which caused his injuries. Both Littlejohn and defendant TimberQuest Park at Magic, LLC (TimberQuest) have filed motions for summary judgment, seeking a determination regarding the enforceability of a liability waiver and arbitration provision signed by Littlejohn prior to participating in the course.

I. Facts

The following facts are undisputed for the purposes of summary judgment, except where otherwise noted. On October 5, 2013, Littlejohn was injured while traversing a self-guided aerial adventure course at Magic Mountain. At the time of his injury, Littlejohn was seventy-six years old. He had never participated in an adventure course before. Defendant TimberQuest operated the adventure course at the time of the incident. Defendant Corporate Challenge, Inc. d/b/a Adventure Más designed and constructed the course.

The adventure course consists of a series of rope bridges, ladders, cargo nets and zip lines placed between elevated platforms constructed around trees and poles. Participants gradually gain elevation by climbing and traversing a series of uphill course elements and then return to the bottom of the course by sliding down a series of zip lines. Participants wear a climbing harness equipped with a "smart belay" system that is meant to keep them attached at all times to both a safety cable and a zip line cable. The "smart belay" system is intended to ensure that the participant is always attached to at least one of the cables.

The trees and poles which support the course platforms are stabilized by guy wires. These guy wires are anchored at one end to the tree or pole where a course platform is located and at the other end to another nearby tree or the ground.

On the day he visited, Littlejohn was equipped with a climbing harness and was instructed how to use the smart belay system's dual carabiners. According to Littlejohn, he was not warned that there were guy wires on the course in addition to safety cables and zip line cables or that he should avoid clipping onto the guy wires.

Littlejohn climbed through the uphill course elements and began to descend on the zip lines. As he was preparing to descend one of the sections of the course, he mistook a guy wire for the zip line cable. He attached his smart belay to the guy wire and slid down the guy wire. At the bottom he ran into the tree which anchored the other end of the guy wire. He suffered severe injuries.

Littlejohn's friend Miki Conn had purchased their tickets for the adventure course through TimberQuest's website on September 12, 2013.

According to Littlejohn, TimberQuest's website does not alert customers that they will be required to sign a liability waiver prior to participating in the adventure course. Littlejohn alleges that neither Conn nor he was aware that they would have to sign a liability waiver until they arrived at TimberQuest three weeks later. At oral argument, counsel for both sides cleared up some confusion on this point: there is a notice on the website concerning the liability waiver, but it appears only at the point of purchase by the customer. A company other than TimberQuest provides the ticketing, reservation and credit card services. That company's website includes a warning to customers that they will be required to sign a liability waiver before they enter the course. Since Littlejohn's counsel did not actually buy a ticket, he did not encounter this information in preparing his motion for summary judgment.

When they arrived at TimberQuest on October 5, Littlejohn and Conn were each presented with a document entitled "Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement." The agreement was presented to them in digital format on an electronic device and they were instructed to read and sign it electronically.

The agreement stated that the participant agreed to "waive all claims" and "assume all risks" arising from participating in programs at the adventure course, including claims arising from negligent acts or conduct of TimberQuest, and further agreed to release and indemnify TimberQuest from liability for any injury suffered by the participant while using the course. (Doc. 44–3 at 2.) Under the heading "Arbitration," the agreement stated that:

The Participant ... hereby agrees to submit any dispute arising from participation in the Programs, for which Participant intends to seek damages in excess of $75,000.00, to binding arbitration .... In the event that Participant ... files a lawsuit in any court relating to, and/or arising from, Participant's participation in the Programs, Participant ... by signing this document, stipulate[s] to a cap on Participant's damages of $75,000.00, exclusive of interest and costs. As a threshold matter, the Panel, or the Court (if a lawsuit is filed), shall confirm whether the Waiver and Release contained in this Agreement are enforceable under applicable law. (Id. )

The agreement contains a severability clause stating that if any provision is invalidated, the remainder of the agreement will continue to be binding. Littlejohn signed the agreement prior to participating in the course.

II. Analysis

On March 27, 2015, TimberQuest filed a motion for partial summary judgment seeking a declaration that the $75,000 damages cap contained in the arbitration clause is enforceable against Littlejohn. (Doc. 44.) Littlejohn opposed the motion on the grounds that the damages cap violates public policy and is procedurally and substantively unconscionable. (Doc. 45.) Littlejohn filed a cross-motion for summary judgment seeking to have the waiver, assumption of risk, release and indemnity provisions of the agreement declared void and unenforceable as well. (Doc. 46.) In response, TimberQuest filed a cross-motion for summary judgment arguing that the agreement is enforceable and all of Littlejohn's claims should be dismissed because he released TimberQuest from liability for negligence by signing the agreement. (Doc. 52.)

A. Standard of Review

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Enforceability of Provisions Regarding Waiver of Claims, Release, Assumption of Risks from Negligence, and Indemnity

The enforceability of a contract provision providing for the waiver of a customer's claims for negligence arising out of recreational activities is a matter of Vermont law. It is governed by four Vermont Supreme Court cases which seek to define the circumstances under which a business may contract out of liability for its own negligent conduct.

The leading case remains Dalury v. S–K–I, Ltd., 164 Vt. 329, 670 A.2d 795 (1995), in which the Vermont Supreme Court rejected the exculpatory language in ski tickets issued by the Killington ski resort to its customers. The court reviewed the criteria announced by the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963),¹ and identified the longstanding rule that business owners are responsible for the safety of their premises as the basis on which to strike the exculpatory provisions in the ticket. Dalury, 670 A.2d at 799. The decision recognized that the ski area—and not the skiers—had the expertise and opportunity to foresee and control hazards and to reduce negligent conduct by its employees.

The Dalury decision did not depend upon a determination that skiing was an essential industry or service. "Whether or not [the ski resort] provide[s] an essential public service does not resolve the public policy question in the recreational sports context." Id. Skiing is not like taking a cab or visiting the hospital—services for which there may be no substitute and which are necessary to everyday life. Rather, the decision rests upon two related principles: the business is open to the general public without regard to special training or ability and the premises owner is in the best position to assure the safety of visitors. These principles have remained unchanged in the cases which have followed Dalury.

The first was Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35, 37 (1997), in which the exculpatory language used as a condition for entering an amateur ski race was not enforced for the same reasons the court had expressed two years before in Dalury. The dissent identified the fault line in the doctrine:

There is a significant difference between the expectations of the general public, which has a right to assume reasonable care on the part of the ski area operator, and a ski racer who consciously undertakes risks that he or she knows may strain or exceed the tolerance of any safety system.

Id. at 38 (Allen, C.J., dissenting). Over...