Sa v. Red Frog Events, LLC

• Decision Date: 22 October 2013
• Docket Number: No. 2:13–cv–10294.,2:13–cv–10294.
• Citation: 979 F.Supp.2d 767
• Parties: James SA, Plaintiff, v. RED FROG EVENTS, LLC, an Illinois corporation, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

979 F.Supp.2d 767

James SA, Plaintiff,

v.RED FROG EVENTS, LLC, an Illinois corporation, Defendant.

No. 2:13–cv–10294.

United States District Court,

E.D. Michigan,

Southern Division.

Oct. 22, 2013.

Michael J. Behm, Behm and Behm, Flint, MI, for Plaintiff.

Brian T. McGorisk, Plunkett & Cooney, Flint, MI, for Defendant.

OPINION AND ORDER PARTIALLY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

This action arises out of an unfortunate and tragic accident during a running race organized by Defendant Red Frog Events, resulting in Plaintiff James Sa's paralysis from his chest down. On January 23, 2013, Plaintiff filed a three-count Complaint, asserting negligence, gross negligence, and willful and wanton misconduct.¹ Defendant has now moved to dismiss Plaintiff's Complaint on the grounds that Plaintiff waived his negligence claim and that his two other claims fail to state a claim upon which relief may be granted. ² Having reviewed and considered the parties' briefs and supporting documents and the entire record of this matter, the Court has determined that the pertinent allegations and legal arguments are sufficiently addressed in these materials and that oral argument would not assist in the resolution of these motions. Accordingly, the Court will decide Defendant's motion “on the briefs.” See L.R. 7.1(f)(2). This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

In July 2011, Plaintiff participated in a two-day event known as the “Warrior Dash” in Mt. Morris, Michigan. (Plf's Compl., Dkt. # 1, at ¶¶ 5, 8). The Warrior Dash is a 5k running race with obstacles, including jumping over fire, wall climbing, and a mud pit. ( Id. at ¶ 7). Plaintiff was injured as a result of diving head first into the mud pit. ( Id. at ¶¶ 21–22).

Positioned directly across from bleachers and right before the finish line, the mud pit was the last obstacle of the race. ( Id. at ¶¶ 13–14). One of Defendant's employees or agents was stationed near the mud pit with a microphone and loudspeaker, acting as an emcee for the event. ( Id. at ¶ 15). Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. ( Id. at ¶¶ 16, 26, 27). It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged. ( Id. at ¶ 17). As an example of this “common knowledge,” bloggers commented about mud diving online. ( Id. at ¶ 18). One noted the following:

When I arrived at the Warrior Dash on Saturday morning I found out rather quickly that “mud diving” was rather popular on the last obstacle before the finish line.... A good mud dive at this point makes perfect sense since runners are tired from the grueling course yet rejuvenated as they see the last obstacle. I'm sure the spectator attention also gives a little more motivation for participants to bring their best mud dive as well.... Hopefully this joy is worth the pain they may have endured to make this happen since my brother-in-law had to go to the hospital after attempting a cannon ball.

( Id.). This same person also posted “sweet pictures of an assortment of some of the best mud dives” and requested that readers “vote” for their favorite. ( Id.).

Before Plaintiff's race wave began, he witnessed many participants dive into the mud pit, heard the emcee encourage others to dive into the mud pit, and never saw anyone tell participants not to dive into the mud pit. ( Id. at ¶¶ 19, 27). Defendant also did not post any signs instructing individuals not to dive into the mud pit. ( Id. at ¶ 20). Accordingly, Plaintiff followed the emcee's encouragement and the lead of other participants and dove into the mud pit, resulting in paralysis from the chest down. ( Id. at ¶ 22).

Prior to participating in the Warrior Dash, Plaintiff-as well as all other participants-signed a “Waiver and Release of Claims” (Waiver). ( Id. at ¶ 9). The Waiver provides, in no uncertain terms, that Plaintiff “agree[s] not to dive into or enter the mud pit head first.” (Ex. A. to Def's Br., Dkt. # 4–1, at ¶ 17).³ Other pertinent language includes:

1. I understand that entering Warrior Dash is a hazardous activity.

2. I understand that Warrior Dash presents extreme obstacles including, but not limited to: fire, mud pits with barbed wire, cargo climbs, junk cars, and steep hills.

* * *

7. I assume all risks associated with competing in Warrior Dash, including, but not limited to: falls, contact with other participants, negligent or wanton acts of other participants, completing all obstacles, any defects or conditions of premises, and the effects of weather including high heat and/or humidity, all such risks being known and appreciated by me.

* * *

DISCLAIMER

I understand that Red Frog Events, LLC is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard. I understand that Red Frog Events, LLC continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants' safety. I also understand, however, that participants ... registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.

* * *

WAIVER & RELEASE OF ALL CLAIMS; ASSUMPTION OF RISK

I recognize and acknowledge that there are certain risks of physical injury to participants in Warrior Dash, and voluntarily assume the full risk of any and all injuries, damages, or loss, regardless of severity, that I ... may sustain as a result of said participation.... I assume all risks and hazards incidental to such participation in Warrior Dash, and I hereby waive, release, absolve, indemnify, and agree to hold harmless ... Red Frog Events, LLC ... for any claim arising out of an injury to me ... and from any and all claims, causes of action, obligations, lawsuits, charges, complaints, contracts, controversies, covenants, agreements, promises, damages, costs, expenses, responsibilities, of whatsoever kind, nature, or description, whether direct or indirect, in law or in equity, in contract or tort, or otherwise, whether known or unknown, arising out of or connected with my ... participation in Warrior Dash.

( Id.) In accepting these terms, Plaintiff checked that he had read and fully understood the Waiver and signed with his own free act and deed. ( Id.).

III. DISCUSSION

A. Applicable Standards

1. Rule 12(b)(6) Standard

In deciding a motion brought under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to Plaintiffs and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007). To withstand a motion to dismiss, however, a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The factual allegations in the complaint, accepted as true, “must be enough to raise a right to relief above the speculative level,” and must “state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for defendant's conduct.” 16630 Southfield Limited P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir.2013).

The Sixth Circuit has emphasized that the “combined effect of Twombly and Iqbal [is to] require [a] plaintiff to have a greater knowledge ... of factual details in order to draft a ‘plausible complaint.’ ” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir.2011) (citation omitted). Put another way, complaints must contain “plausible statements as to when, where, in what or by whom,” Center for Bio–Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373 (6th Cir.2011), in order to avoid merely pleading “unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

2. Application of Michigan law

This Court applies Michigan law as enunciated by the Michigan Supreme Court because subject matter jurisdiction in the matter is premised solely on diversity jurisdiction. See, e.g., Corrigan v. U.S. Steel Corp., 478 F.3d 718, 723 (6th Cir.2007); Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995). “Where the Michigan Supreme Court has not addressed an issue, [courts] may look to opinions issued by the Michigan appellate courts and should follow their reasoning unless [they] are ‘convinced by other persuasive data that the highest court of the state would decide otherwise.’ ” Tooling, Mfg. & Technologies Ass'n v. Hartford Fire Ins. Co., 693 F.3d 665, 670 (6th Cir.2012) (quoting Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 517 (6th Cir.2001)).

B. The Waiver bars Plaintiff's negligence claim (Count I)

In Michigan, “the validity of a release turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.” Batshon v. Mar–Que Gen. Contractors, Inc., 463 Mich. 646, 650 n. 4, 624 N.W.2d 903 (2001). “The interpretation of [a] release [is] a question of law.” Cole v. Ladbroke Racing Michigan, Inc., 241 Mich.App. 1, 13, 614 N.W.2d 169 (2000).

Michigan law expressly permits “a party to contract against liability or damages caused by...