Lukken v. Fleischer

• Decision Date: 30 June 2021
• Docket Number: No. 20-0343,20-0343
• Citation: 962 N.W.2d 71
• Court: Iowa Supreme Court
• Parties: Thomas LUKKEN, Appellant, v. Korby L. FLEISCHER, individually and d/b/a Mt. Crescent Ski Area ; Samantha Fleischer, individually and d/b/a Mt. Crescent Ski Area; Mt. Crescent Ski Area, an unknown business entity; Safehold Special Risk, Inc., an Illinois corporation; Challenge Quest, LLC, an Oklahoma Corporation d/b/a Challenge Quest, LLC ; and Kirk Gregory Engineering, P.C., a Texas Corporation; KG Structural Solutions, LLC, a Texas Corporation; and Atlas Engineering, LLC, a Nebraska Corporation, Appellees.

962 N.W.2d 71

Thomas LUKKEN, Appellant,

v.Korby L. FLEISCHER, individually and d/b/a Mt. Crescent Ski Area ; Samantha Fleischer, individually and d/b/a Mt. Crescent Ski Area; Mt. Crescent Ski Area, an unknown business entity; Safehold Special Risk, Inc., an Illinois corporation; Challenge Quest, LLC, an Oklahoma Corporation d/b/a Challenge Quest, LLC ; and Kirk Gregory Engineering, P.C., a Texas Corporation; KG Structural Solutions, LLC, a Texas Corporation; and Atlas Engineering, LLC, a Nebraska Corporation, Appellees.

No. 20-0343

Supreme Court of Iowa.

Submitted March 24, 2021

Filed June 30, 2021

Matthew A. Lathrop (argued) of Law Office of Mathew A. Lathrop, Omaha, Nebraska, and Robert M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs, for appellant.

Thomas Henderson (argued) and Peter J. Chalik of Whitfield & Eddy, P.L.C., Des Moines, for Mt. Crescent appellees.

Joshua S. Weiner (argued) and Robert M. Slovek of Kutak Rock LLP, Omaha, Nebraska, for appellee Challenge Quest, LLC.

McDermott, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Mansfield, McDonald, and Oxley, JJ., joined. Appel, J., filed an opinion concurring specially.

McDERMOTT, Justice.

Thomas Lukken stepped off an elevated platform and sped down a zip line at the Mt. Crescent Ski Area. An employee at the end of the zip line had failed to reset the zip line's braking system after the previous rider exited. By the time the employee realized his mistake, it was too late. Lukken slammed into a wooden pole at the base of the zip line and fractured his neck. He sued the zip line's original designer and its owner. The district court dismissed the claims against the zip line's designer primarily based on the fact that the braking system that failed to stop Lukken had been completely replaced by a different supplier before the incident. And the district court dismissed the claims against the zip line's owner based on a liability waiver that Lukken signed before riding. Lukken appeals.

I.

Double Diamond, Inc. d/b/a Mt. Crescent Ski Area (Mt. Crescent) operates a skiing and sledding business in winter months and offers other outdoor recreational activities, including zip lining, in warmer months. The zip line begins on a twenty-four-foot-high platform atop the ski hill. Harnessed riders travel down the zip line reaching speeds of up to forty miles per hour before landing on a lower thirty-three-foot-high landing platform at the bottom of the hill. The zip line extends 1576 feet from start to finish.

In April 2014, Mt. Crescent contracted with Challenge Quest, LLC, to build and install the zip line. Challenge Quest designed the zip line to have enough slack so that riders would nearly run out of momentum before reaching the landing platform. To bring riders nearing the landing platform to a complete stop, a small device with wheels that rode on top of the zip line and connected the rider's harness to the zip line (referred to as a "trolley") made contact with a padded brake block. The brake block connected to a rope-pulley system. An operator on the landing platform held onto a rope connected to the pulley and applied manual resistance to bring riders to a complete stop. This rope-braking feature slowed riders as the rope ran through the operator's hands, with operators tightening or releasing their hold as needed to apply the appropriate amount of friction. Because slack in the zip line could cause riders to slide back away from the landing platform once a rider's forward momentum stopped, the brake block also featured a capture arm that prevented riders from backsliding. The operator used the same rope-pulley system to pull stopped riders all the way onto the landing platform. After an operator unhooked a completed rider on the landing platform, the operator would use the same rope-pulley system to manually move the brake block back out for the next rider.

Challenge Quest completed construction of the zip line in August 2014. It then provided, as contemplated by the parties’ contract, a four day "site specific high technical training for full time staff," including training on the braking system, after which it turned full control of the zip line over to Mt. Crescent. After the zip line opened to the public, Mt. Crescent's operators in several instances failed to sufficiently slow riders using grip friction on the rope to control the brake block. Riders arrived at the landing platform at speeds in excess of six miles per hour, the maximum recommended by a trade association called the Association for Challenge Course Technology (ACCT), which develops safety standards for zip line courses. In some cases, these riders collided with the Mt. Crescent employees engaged in stopping them. A handful of injuries resulted, the most serious apparently being an injured ankle

.

Mt. Crescent decided to consult with a different contractor about a different braking system than the original one Challenge Quest had installed. This new contractor, Sky Line, inspected Mt. Crescent's zip line and recommended a "zipSTOP" braking system. Mt. Crescent had initially considered a zipSTOP braking system as part of the zip line that Challenge Quest designed but decided against it. Mt. Crescent agreed with Sky Line's recommendation and hired Sky Line to install the zipSTOP system on its existing zip line. Sky Line completed the installation in July 2016. Mt. Crescent informed Challenge Quest of none of this.

Like the original braking system, the zipSTOP braking system also uses a brake block to bring riders to a complete stop. But instead of rope pulleys controlling the brake block using an operator's hand resistance, the brake block uses a magnetic-resistance wheel to bring riders to a complete stop. The brake block automatically moves back to the correct position on the zip line in preparation for the next rider, but an operator must manually redeploy it before it will move.

Lukken rode Mt. Crescent's zip line in October 2016 with the zipSTOP braking system in place. The Mt. Crescent employee on the landing platform forgot to redeploy the brake block after the rider ahead of Lukken finished. Lukken was already whizzing down the zip line toward the landing platform by the time the operator realized his mistake. The operator's tardy redeployment of the zipSTOP braking system didn't permit enough time for it to stop Lukken, and he crashed into a wooden pole at the base of the zip line and suffered a neck fracture.

Before riding on the zip line, Lukken signed a release and waiver-of-liability agreement in favor of Mt. Crescent. It stated in relevant part:

I am aware and fully understand that these activities are very dangerous. They involve the risk of damage, serious injury and death, both to myself and to others.

I understand that there are many potential causes for property damage, serious injury and death at Mt Crescent Ski Area including the negligence of Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, and equipment as well as my own negligence and the negligence of others.

In consideration of being permitted to participate in the activities offered at Mt Crescent Ski Area I hereby agree to release, waive, discharge, and covenant not to sue Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, or rescue personnel as well as any equipment manufacturers and distributors involved with the Mt Crescent Ski Area facilities from any and all liability from any and all loss or damage I may have and any claims or demands I may have on account of injury to my person and property or the person and property of others, including death, arising out of or related to the activities offered at Mt Crescent Ski Area whether caused by the negligence of Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, equipment manufacturers, or distributors or otherwise.

....

In consideration of being permitted to participate in the activities offered at Mt Crescent Ski Area, I agree that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to any and all acts of negligence by Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, and equipment manufacturers, and distributors, including negligent rescue operations and is intended to be as broad and inclusive as permitted by Iowa law and that if any portion is held invalid, it is agreed that the balance shall continue in full legal force and effect.

He filed suit against Mt. Crescent (and related individuals and entities alleged to own it) and Challenge Quest (and related entities alleged to have participated in the zip line's design and construction), pleading causes of action for negligence and strict liability, and requesting punitive damages.

The district court granted summary judgment in favor of Challenge Quest, holding that it breached no duty to Lukken and that it didn't cause Lukken's injuries. The district court reasoned that Challenge Quest owed no duty to Lukken because it had completed its work under its contract and transferred control of the zip line to Mt. Crescent by the time of the incident, and, further, that its actions were not the "cause" of Lukken's injuries because it didn't install the allegedly defective braking system in place when Lukken was injured.

The district court also granted summary judgment in favor of Mt. Crescent, holding the waiver dispositive of the claims. The district court reasoned that Iowa courts consistently uphold exculpatory agreements and that the waiver at issue contained language sufficiently "clear and unequivocal" to demonstrate that Lukken understood he was waiving future claims of negligence. The court held that the express language of waiving "any and all negligence" waived all of Lukken's negligence claims, including his claim for gross negligence. The district court declined to hold the waiver unenforceable based on...