Thomas v. Allen

• Decision Date: 13 May 2022
• Docket Number: 2021-CA-0529-MR
• Parties: JAMIE E. THOMAS APPELLANT v. BRIAN ALLEN AND THE THIRSTY PEDALER, LLC APPELLEES
• Court: Kentucky Court of Appeals

JAMIE E. THOMAS APPELLANT v. BRIAN ALLEN AND THE THIRSTY PEDALER, LLC APPELLEES

No. 2021-CA-0529-MR

Court of Appeals of Kentucky

May 13, 2022

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE JUDGE ACTION NO. 19-CI-004746

BRIEFS FOR APPELLANT: Lawrence I. Young Louisville, Kentucky

BRIEF FOR APPELLEES: Bryce L. Cotton Charles M. Rutledge Louisville, Kentucky

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

OPINION

CLAYTON, CHIEF JUDGE

Jamie E. Thomas ("Thomas") seeks to overturn the Jefferson Circuit Court's grant of summary judgment in favor of Brian Allen ("Allen") and The Thirsty Pedaler, LLC ("TTP"). In granting summary judgment the trial court found no dispute that Thomas executed a legal and valid waiver of liability, which specifically applied to Thomas's negligence allegations against Allen and TTP. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

TTP operates a commercial quadricycle business. Participants who are twenty-one (21) years of age and older pay to tour a generally designated area of downtown Louisville on an electric-powered, pedal-propelled quadricycle steered and operated by a TTP employee. The quadricycle can be operated without pedaling, and it travels at slow speeds of five to six miles per hour. It has an accelerator, brakes, headlights, brake lights, turn signals, and a steering wheel, and it must follow the rules and regulations of the road.

On September 22, 2018, Thomas joined her family on one of TTP's quadricycles. When Thomas arrived at TTP's check-in area in downtown Louisville, Thomas reviewed "The Thirsty Pedaler, L.L.C. Waiver and Release of Liability" (the "Waiver") on an iPad. Additionally, Thomas fully executed the Waiver by inserting her name, date of birth, email address, and electronic signature. Thomas testified that she voluntarily executed the Waiver. Specifically, the Waiver stated:

Waiver and Release of Liability. I the undersigned user, acknowledge and understand that during my use of the Thirsty Pedaler LLC (The Thirsty Pedaler) pedal tavern/pedal pub (Vehicle) operated by The Thirsty Pedaler, I may be exposed to a variety of hazards and risks, foreseen or unforeseen, which are inherent in travelling in a vehicle, quadricycling, recreation, exercise and related activities. These inherent activities include, but are not limited to, the dangers of serious personal injury, death and property damage (Injuries and Damages) resulting from, but not limited to: (i) physical exercise and exertion; (ii) physical contact with other vehicles, other individuals and road hazards; (iii) falling or tripping due to road hazards, uneven surfaces or debris; (iv) falling from heights, including falling off the Vehicle; and (v) other hazards associated with travel in a vehicle. I further acknowledge and understand these Injuries and Damages cannot be eliminated without destroying the unique character of the Vehicle. I fully understand that The Thirsty Pedaler has not tried to contradict or minimize my understanding of these risks. I know that Injuries and Damages can occur by natural causes or activities of other persons, other users, staff of The Thirsty Pedaler or other third parties, either as a result of negligence or because of other reasons. I understand the risks of such Injuries and Damages involved in the Vehicle and I appreciate that I may have to exercise extra care for my own person and for others around me in the face of such hazards. I further understand that there may not be medical personnel or medical facilities or expertise necessary to deal with the Injuries and Damages to which I may be exposed. In consideration for my acceptance as an eligible user of the Vehicle, and the services and amenities provided by The Thirsty Pedaler in connection with the Vehicle.

I CONFIRM MY UNDERSTANDING OF THE FOLLOWING: RELEASE OF LIABILITY. To the fullest extent allowed by law, I agree to WAIVE AND DISCHARGE CLAIMS AGAINST, RELEASE FROM LIABILITY, INDEMNIFY AND HOLD HARMLESS The Thirsty Pedaler and its parents, subsidiaries and affiliates and their respective past and present officers, directors, stockholders, managers, members, partners, agents and employees (collectively, Released Parties) from and against ANY AND ALL LIABILITY on account of, or in any way resulting from, my death or personal injury relating to my use of the Vehicle, even if caused by NEGLIGENCE of the Released Parties. Such negligence could involve (a) negligent operation and supervision of the Vehicle, (b) negligent maintenance or operation of the equipment or Vehicle in general, (c) negligent manufacture of or use of equipment to be used in the Vehicle, including the Vehicle itself, and (d) the negligent provision of emergency response services. I understand and intend that the assumption of risk and release is binding upon my heirs, executors, administrators, and assigns. This Waiver and Release is intended to be as broad and inclusive as permitted by law. . . . I have read this Waiver and Release of Liability in its entirety and I freely and voluntarily choose to use the Vehicle and assume all risks of Injuries and Damages.

At the time of the injury claimed herein, Allen was the TTP employee operating one of the four quadricycles owned by TTP. Thomas contended that Allen lost control of the quadricycle and struck a telephone pole, which resulted in Thomas's falling from the quadricycle. Specifically, Thomas alleged that she fell backward into the street, lost consciousness, and an ambulance took her to the hospital. Thomas further alleged that the fall led her to sustain a concussion and other injuries. Additionally, since the incident, Thomas claims she has had memory and hearing loss, had to have a pacemaker installed, and has continued to suffer pain.

On August 5, 2019, Thomas filed a lawsuit to recover damages for such injuries on a theory of negligence. On February 4, 2020, Allen and TTP moved for summary judgment, arguing that the Waiver barred Thomas's negligence claims as a matter of law. Thomas responded on February 27, 2020. Thereafter, the parties agreed to an extended briefing schedule to allow for further discovery before submitting the summary judgment motion to the trial court for a ruling. Following a seven (7)-month period for additional discovery, on October 1, 2020, Allen and TTP filed their reply, and on October 21, 2020, Thomas filed a sur-reply.

Particularly, Thomas claimed that Allen had stated in his deposition that there were no seatbelts or seatbacks in the quadricycle on the day of the incident. Thomas pointed to the following exchange at Allen's deposition:

Q. On this Thirsty Pedaler, did the seats have backs?

A. No.

Q. On this Thirsty Pedaler, did the seats have seatbelts?

A. No.

TTP's reply contained an affidavit from Allen clarifying his deposition testimony that he "understood the question to ask whether all of the seats have backs," which was why he answered "no." Similarly, he "understood the question to ask whether all of the seats have seatbelts," again explaining why he answered in the negative. Further, Allen stated in his affidavit that "[e]ach passenger seat on each Quadricycle operated by The Thirsty Pedaler L.L.C. has either a back or a seatbelt and did so on September 22, 2018." He further averred that the seat on which Thomas was sitting had a seatbelt.

In addition to Allen's affidavit, TTP produced an affidavit from Detective Dereck Jeffers, an Alcoholic Beverage Control (the "ABC") enforcement division officer. One of his job duties was to inspect quadricycles for compliance with Louisville Metro Ordinance 115.583 (the "Ordinance"). The Ordinance requires quadricycles to have either a seatback or a seatbelt. Jeffers stated in his affidavit that he had inspected all four of the quadricycles owned and operated by The Thirsty Pedaler and at all times had found them to be compliant with the Ordinance. Further, TTP's four quadricycles had valid permits as of September 22, 2018, and they had received additional valid permits since that date. Had they not had a seatback or seatbelt, Jeffers testified that TTP would not have been issued permits and the ABC would have cited TTP for non-compliance with the Ordinance.

On January 5, 2021, the trial court held a hearing on the motion for summary judgment. At the hearing, Lieutenant Bradley Silvera of the ABC testified that the ABC regularly inspected TTP's quadricycles and that the ABC would not have issued TTP permits if the seats on its quadricycles did not have either a seatback or seatbelt. Silvera further testified that TTP had never been cited for violating the Ordinance. Moreover, Silvera testified that he had independent knowledge of TTP's quadricycles having either one seatbelt per seat or a seatback and provided pictures of the quadricycles. At the conclusion of the hearing, the parties submitted the summary judgment motion for the court's ruling with no objection from Thomas.

On February 10, 2021, the trial court entered an opinion and order granting summary judgment in favor of Allen and TTP on multiple grounds. Thomas then moved the trial court to alter, amend, or vacate the summary judgment, which the trial court denied. This appeal followed.

ANALYSIS

a Standard of Review

This appeal arises from a grant of summary judgment in favor of Allen and TTP. In such matters, the appellate court "determine[s] whether the record supports the trial court's conclusion that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Foreman v. Auto Club Property-Casualty Insurance Company, 617 S.W.3d 345, 349 (Ky. 2021) (internal quotation marks and footnote omitted). Summary judgment "expedite[s] the...