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Milne v. USA Cycling Inc., 489 F. Supp. 2d 1283, (D.Utah 2007)
United States District Court,
D. Utah,
Central Division.
MILNE, et al., Plaintiffs,
v.
USA CYCLING INC., et al., Defendants.
No. 2:05–CV–675 TS.
June 13, 2007.
Background: Participants in mountain bike race brought negligence action against truck driver and race organizers, seeking to recover damages for injuries participants sustained in a collision with truck. Defendants moved to strike second affidavit of participant’s expert, and for summary judgment.
Holdings: The District Court, Stewart, J., held that:
(1) striking affidavit and deposition testimony of participants’ expert was warranted;
(2) participants waived any and all negligence claims against race organizers;
(3) organizers did not engage in conduct that showed an unreasonable risk of physical harm to another that was substantially greater than that which was necessary to make their conduct negligent, as would amount to gross negligence; and
(4) release agreement executed by participants barred wrongful death claim.
Motions granted.
West Headnotes
[1] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol170A Federal Civil Procedure
Key Number Symbol170AXVII Judgment
Key Number Symbol170AXVII(C) Summary Judgment
Key Number Symbol170AXVII(C)3 Proceedings
Key Number Symbol170Ak2536 Affidavits
Key Number Symbol170Ak2539 k. Sufficiency of showing. Most Cited Cases
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Key Number Symbol170Ak2541 k. Depositions and interrogatories. Most Cited Cases
In negligence action brought by participants in mountain bike race against truck driver and race organizers, seeking to recover damages for injuries participants sustained in a collision with truck, striking affidavit and deposition testimony of participants’ expert was warranted, where expert was not sufficiently qualified to render expert testimony on the applicable standards of care for mountain bike racing, such testimony would be speculative and not sufficiently reliable, as required by Daubert, and, therefore, the testimony would not be useful to a jury under rule governing admission of expert testimony. Fed.Rules Evid.Rule 702, 28 U.S.C.A.
[2] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol315T Public Amusement and Entertainment
Key Number Symbol315TIII Personal Injuries
Key Number Symbol315TIII(B) Defenses, Mitigating Circumstances and Statutory Limitations of Liability
Key Number Symbol315Tk129 Pre-Injury Releases
Key Number Symbol315Tk130 k. In general. Most Cited Cases
Under Utah law, participants in mountain bike race waived any and all negligence claims against race organizers, including those arising from organizers’ own negligence, and released organizers from all liability for injuries or death suffered while competing in the race, where participants knowingly and voluntarily executed a release agreement which showed a clear and unequivocal expression of an intent to release.
[3] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol95 Contracts
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Key Number Symbol95I(F) Legality of Object and of Consideration
Key Number Symbol95k114 k. Exemption from liability. Most Cited Cases
Under Utah law, a party may obtain contractual releases from liability for negligent action where a party agrees to release the other from liability for future injuries; such contracts need only show a clear and unequivocal expression of an intent to release.
[4] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol170B Federal Courts
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In a diversity action, where state law controls, federal courts must apply the most recent statement of state law by the state’s highest court.
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In absence of authoritative precedent from the state’s highest court, a federal court sitting in diversity must predict how that court would rule, and state supreme court dicta, which represents that court’s own comment on the development of the law, is an appropriate source from which this prediction may be made.
[6] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol95 Contracts
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Under Utah law, as predicted by the District Court, releases are invalid against claims of gross negligence.
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Key Number Symbol315T Public Amusement and Entertainment
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Key Number Symbol315TIII(B) Defenses, Mitigating Circumstances and Statutory Limitations of Liability
Key Number Symbol315Tk129 Pre-Injury Releases
Key Number Symbol315Tk130 k. In general. Most Cited Cases
Under Utah law, organizers of mountain bike race did not engage in conduct that showed an unreasonable risk of physical harm to another that was substantially greater than that which was necessary to make their conduct negligent, as would amount to gross negligence, for purposes of race participants’ claim seeking to recover damages for injuries they sustained when they collided with truck during “open-course” race, where organizers placed a sign on course before the race to advise motorists of the event, and notified at least three potential motorists in the area of the race. Restatement (Second) of Torts § 500.
[8] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
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Key Number Symbol272k273 k. Gross negligence. Most Cited Cases
Under Utah law, gross negligence falls on that line of culpability somewhere between simple negligence and clearly intentional conduct and involves elements of both.
[9] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
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Key Number Symbol272k273 k. Gross negligence. Most Cited Cases
Under Utah law, gross negligence may be characterized as a gross deviation from the standard of care that an ordinary person would exercise in the given circumstances.
[10] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol272 Negligence
Key Number Symbol272V Heightened Degrees of Negligence
Key Number Symbol272k273 k. Gross negligence. Most Cited Cases
Under Utah law, gross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.
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Granting summary judgment on the issues of negligence or gross negligence is generally disfavored due to the unique role of the jury in these types of cases.
[12] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol315T Public Amusement and Entertainment
Key Number Symbol315TIII Personal Injuries
Key Number Symbol315TIII(B) Defenses, Mitigating Circumstances and Statutory Limitations of Liability
Key Number Symbol315Tk129 Pre-Injury Releases
Key Number Symbol315Tk130 k. In general. Most Cited Cases
Under Utah law, as predicted by the District Court, release agreement executed by participant in mountain bike race barred wrongful death claim against race organizer.
*1284 Jeffrey D. Eisenberg, J. Stephen Russell, Eisenberg Gilchrist & Morton, Salt Lake City, UT, for Plaintiffs.
Allan L. Larson, Richard A. Vazquez, Snow Christensen & Martineau, Harold L. Petersen, Petersen & Associates, Salt Lake City, UT, for Defendants.
*1285 MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE AND FOR SUMMARY JUDGMENT
STEWART, District Judge.
This matter is before the Court on the Motion for Summary Judgment FN1 and Motion to Strike the Second Affidavit, Expert Report, and Deposition Testimony of Sean Collinsworth FN2 by Defendants USA Cycling, Inc. (d.b.a.NORBA), Cycle Cyndicate, Inc., and Eric Jean (“Race Defendants” or “Defendants”).FN3
FN1. Docket No. 45.
FN2. Docket No. 62.
FN3. The Court notes that Defendant Konitshek has filed both a Response to the Race Defendants’ Motion (Docket No. 50), and an Opposition to Defendants Motion to Strike Affidavit (Docket No. 73). The filing of these motions is entirely appropriate where, as here, Konitshek has filed a cross-claim against the Race Defendants. See Nat. Serv. Indus., Inc. v. B.W. Norton Mfg. Co. Inc., 937 P.2d 551, 556 n. 2 (Utah Ct.App.1997). However, in Docket No. 50, Defendant generally requests that, should any part of the case go to trial, Race Defendants be included on a jury special verdict form for apportionment of fault under Utah Code Ann. § 78–27–37, et seq. This procedure would normally be followed as a matter of course. Nat. Serv. Indus., 937 P.2d at 556 n. 2. As to the other issues relevant to the current motions, Defendant Konitshek’s arguments are either duplicative or inapposite to the determinations that this Court must make. Accordingly, the Court’s reasoning, as set forth below, applies to all Defendants.
I. INTRODUCTION
The facts in this matter are more fully set forth by the parties in the pleadings and memoranda. In short, this action stems from injuries sustained by Plaintiff Robert Milne, and fatal injuries sustained by Ben Hall, represented by Plaintiff Timothy Sorrow, participants in the 2004 Tour of Canyonlands (“TOC”) mountain bike race, near Moab, Utah, as a result of a collision with a truck/trailer driven by Defendant Konitshek. Race Defendants organized, promoted, and conducted the race. Plaintiffs bring the following claims: (1) Negligence—Tim Konitshek, (2) Negligence—Eric Jean, (3) Gross Negligence—Eric Jean, (4) Negligence—Cycle Cyndicate, (5) Gross Negligence—Cycle Cyndicate, (6) Negligence—NORBA, (7) Gross Negligence—NORBA, and (8) Wrongful Death (by Timothy Sorrow, on behalf of Mr. Hall)—NORBA, Cycle Cyndicate, Eric Jean, and Tim Konitshek.
The TOC is an “open-course” race, meaning that racers share the course with regular vehicle traffic. Plaintiffs have stipulated that Mr. Hall and Mr. Milne knowingly and voluntarily executed a release agreement wherein they agreed to waive any and all claims, including those arising from Race Defendants’ own negligence, and release Defendants from all liability for injuries or death suffered while competing in the TOC race.FN4
FN4. Docket No. 39.
The undisputed facts further show that Race Defendants put up a sign before the race for the purpose of advising passersby of the event. Also, marshals and parking attendants were present at the start location of the race. Moreover, Dan Thomas, a race official for Race Defendants, warned all race participants at the starting line, as they were released, to use caution because the course was open and because traffic would be encountered. Finally, Race Defendants placed at least one person on the course, Defendant Jean, for the purpose of traffic control during the race. Defendant Jean patrolled the area during the race and at least three individuals who were camping in the area testified that Defendant Jean warned them of the race as it was taking place.
*1286 II. DISCUSSION
A. Defendants’ Motion to Strike
[1] Headnote Citing References Defendants move to strike the second affidavit of Plaintiffs’ expert Sean Collinsworth,FN5 upon the grounds that portions of it contain impermissible legal conclusions, attempt to create a sham fact issue, and are unreliable under Daubert.FN6 Plaintiffs oppose Defendants’ Motion in all respects.
FN5. Docket No. 55, Ex. M or 16.
FN6. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
The Court finds that the affidavit in question is largely irrelevant to the Court’s evaluation of the issues in question. Nevertheless, the Court will grant Defendants’ Motion to Strike. Specifically, the Court determines that: partly by his own admission in deposition, Mr. Collinsworth is not sufficiently qualified to render expert testimony on the applicable standards of care for mountain bike racing, particularly regarding the TOC; that any such testimony would be speculative and not sufficiently reliable as per the factors set forth by Daubert v. Merrell Dow Pharmaceuticals, Inc.FN7; and that, therefore, the testimony would not be useful to a jury under Fed.R.Evid. 702.
FN7. Id.
B. Defendants’ Motion for Summary Judgment
1. The Summary Judgment Standard
Summary judgment is proper if the moving party can demonstrate that there is no genuine issue of material fact and it is entitled to judgment as a matter of law.FN8 In considering whether genuine issues of material fact exist, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.FN9
FN8. Fed.R.Civ.P. 56(c).
FN9. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Clifton v. Craig, 924 F.2d 182, 183 (10th Cir.1991).
2. Negligence Causes of Action
i. Negligence
[2] Headnote Citing References Defendants argue that the release agreement bars Plaintiffs’ claims of negligence. Plaintiffs do not dispute Defendants’ assertion.
[3] Headnote Citing References Under Utah law, a party may obtain contractual releases from liability for negligent action where a party agrees to release the other from liability for future injuries.FN10 Such contracts need only show a clear and unequivocal expression of an intent to release.FN11 As mentioned above, Plaintiffs have stipulated that Mr. Hall and Mr. Milne knowingly and voluntarily executed a release agreement wherein they agreed to waive any and all claims, including those arising from Race Defendants’ own negligence, and release Defendants from all liability for injuries or death suffered while competing in the TOC race.FN12 The Court finds the release to show a clear and unequivocal expression of an intent to release. There being no genuine issues of material fact, the Court finds that Race Defendants are entitled to judgment as a matter of law on Plaintiffs’ negligence claims.
FN10. Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062, 1064 (Utah 2001).
FN11. Id.
FN12. Docket No. 39.
ii. Gross Negligence
Defendants argue that the release agreement bars Plaintiffs’ claims of gross negligence. Plaintiffs dispute Defendants *1287 position. Defendants further argue that even if the release does not bar Plaintiffs’ claims, Plaintiffs’ claims must fail because there are no genuine issues of material fact and Defendants are entitled to judgment as a matter of law because the facts pleaded by Plaintiffs do not show gross negligence.
a. Effect of Release on Gross Negligence Claims
[4] Headnote Citing References[5] Headnote Citing References[6] Headnote Citing References In a diversity action like this one, where state law controls, “ ‘we must apply the most recent statement of state law by the state’s highest court.’ ” FN13 The Utah Supreme Court has not directly held that releases are invalid with respect to claims of gross negligence. However, “our job is to predict how that court would rule,” and state supreme court “dicta, which represents that court’s own comment on the development of [the] law, is an appropriate source from which this prediction may be made.” FN14 The Utah Supreme Court has repeated, in dicta, that releases are invalid against claims of gross negligence:
FN13. Cooper v. Cent. & Sw. Serv., 271 F.3d 1247, 1251 (10th Cir.2001) (quoting Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994)).
FN14. Carl v. City of Overland Park, Kansas, 65 F.3d 866, 872 (10th Cir.1995).
[T]hose who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in the performance of a contractual duty; but such an exemption is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence.FN15
FN15. Hawkins, 37 P.3d at 1065 (quotation omitted); see also Russ v. Woodside Homes, Inc., 905 P.2d 901, 904 (Utah Ct.App.1995) (same).
Accordingly, the Court finds that the releases, in and of themselves, do not preclude Plaintiffs’ claims for gross negligence.
b. Substance of Gross Negligence Claims
[7] Headnote Citing References Defendants argue that the undisputed facts are sufficient to demonstrate that they were not grossly negligent. The parties also generally dispute whether the determination of gross negligence in this case is properly one for the jury.
[8] Headnote Citing References[9] Headnote Citing References[10] Headnote Citing References “Terms such as … gross negligence … fall on that line of culpability somewhere between simple negligence and clearly intentional conduct and involve elements of both.” FN16 Gross negligence may be characterized as “a gross deviation from the standard of care that an ordinary person would exercise in the given circumstances.” FN17 “ ‘Gross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.’ ” FN18
FN16. Strange v. Ostlund, 594 P.2d 877, 881 (Utah 1979).
FN17. Utah State Tax Comm’n v. Stevenson, 2006 UT 84, ¶ 29, 150 P.3d 521 (quotation and citation omitted).
FN18. Moon Lake Elec. Ass’n, Inc. v. Ultrasystems Western Constructors, Inc., 767 P.2d 125 (Utah Ct.App.1988) (quoting Atkin v. Wright & Miles Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985)).
[11] Headnote Citing References The Court will grant summary judgment for Defendants. While, as a practical matter, granting summary judgment on the issues of negligence or gross negligence is generally disfavored due to the unique role of the jury in these types of cases,FN19 to carry a claim of gross negligence,*1288 Plaintiffs here are required to show conduct that not only demonstrates “an unreasonable risk of physical harm to another” but also that “such risk is substantially greater than that which is necessary to make his conduct negligent.” FN20 Indeed, as mentioned above, Utah’s formulation of gross negligence necessarily requires the absence of even slight care.FN21
FN19. E.g., 10A Wright and Miller, Federal Practice and Procedure § 2729; V. Woerner, Annotation, Propriety of granting summary judgment in case involving issue of gross or wanton negligence, 50 A.L.R.2d 1309 (1956).
FN20. Restatement (Second) of Torts § 500 (1965) (emphasis added).
FN21. Because the second affidavit of Sean Collinsworth does not account for or address this standard, the Court does not consider it sufficiently relevant in addressing the issue of gross negligence here.
Even accepting Plaintiffs’ version of the facts, the undisputed facts preclude a showing of conduct by the Race Defendants indicative of a risk substantially greater than that which would be negligent. Defendants placed a sign on the course before the race to advise passersby of the event. Defendant Jean notified at least three potential motorists in the area of the race, and thereby conducted minimal traffic control, even if the manner in which he did so could be characterized as deficient, and therefore, negligent. Defendants also warned the race participants both orally and in writing of the dangers posed by vehicle traffic on the course. More specifically, Race Defendants first warned Plaintiff Milne and Hall of the inherent dangers of the race, including collision with vehicular traffic, in the release which they signed. Plaintiff Milne and Hall were warned again by Dan Thomas at the starting line, who, according to the undisputed facts, warned all race participants to use caution because the course was open and because traffic would be encountered. Finally, Defendants placed marshals and parking attendants at the start location of the race, presumably for purposes of traffic control.
The Court cannot find from the facts set forth in the memoranda or accompanying affidavits—either those which are undisputed, or those which are disputed, viewing them in the light most favorable to Plaintiffs—that a reasonable jury could conclude that Defendants did not exercise even slight care. Accordingly, the Court will grant Race Defendants’ Motion as it relates to Plaintiffs’ claims of gross negligence.
3. Wrongful Death Claims
[12] Headnote Citing References Defendants argue that the release agreement bars the wrongful death claim of Plaintiff Sorrow. Defendants cite to the 1997 Utah Supreme court case of Hirpa v. IHC Hospitals, Inc.,FN22 for the proposition that “Utah law is clear that a plaintiff in a wrongful death action is subject to defenses which could have been asserted against the decedent had he lived and prosecuted the suit.” FN23
FN22. 948 P.2d 785 (Utah 1997).
FN23. Id. at 794.
Plaintiff Sorrow disputes that a wrongful death action is subject to such defenses, and cites Hull v. Silver,FN24 a 1978 Utah Supreme Court decision which held that a wrongful death action is not subject to the defense of interspousal tort immunity.FN25
FN24. 577 P.2d 103 (Utah 1978).
FN25. Id. at 104.
The Court finds that the most recent pronouncements of the Utah Supreme Court support that the Race Defendants are entitled to judgment as a matter of law. It is clear that the Utah Supreme Court has held that a wrongful death action is not subject to a defense of interspousal immunity,FN26 and has appeared, on occasion in the past and through dicta, to *1289 leave room for rejection of more defenses, including waiver by release. For example, in Hull the Utah Supreme Court, in reaching its decision to reject interspousal immunity, noted that, unlike the Plaintiff in the 1947 Tenth Circuit case of Francis v. Southern Pacific Co.,FN27 a plaintiff bringing a wrongful death claim could recover under Utah law even though the decedent had waived his right to bring a claim.FN28 Moreover, in its 1997 decision of Jensen v. IHC Hospitals, Inc.,FN29 the court accepted a statute of limitations defense under the Utah Health Care Malpractice Act, but noted that a “wrongful death cause of action … may only proceed subject to at least some of the defenses that would have been available against the decedent had she lived to maintain her own action.” FN30
FN26. Hull, 577 P.2d at 106.
FN27. 162 F.2d 813, 816 (10th Cir.1947) (holding recovery via Utah wrongful death action barred by release).
FN28. Hull, 577 P.2d at 106 (noting that Francis was pre- Erie, and implying Tenth Circuit’s decision would not have reached conclusion it did otherwise).
FN29. 944 P.2d 327, 332 (Utah 1997).
FN30. Id. at 332 (emphasis added).
Despite this, the Court finds several reasons for adopting Defendants’ position. The Court notes that the Utah Supreme Court has not explicitly rejected any defense besides interspousal immunity. To the contrary, the Court has accepted the defense of comparative negligence in the Kelson v. Salt Lake County case,FN31 and defenses under Utah’s Good Samaritan FN32 and Health Care Malpractice Acts FN33 in the Hirpa and Jensen cases, respectively. In fact, the most recent pronouncements by the court are indicative of a much broader acceptance of defenses which would have been available to a defendant had the decedent brought suit.FN34 Notably, the court has not deemed it necessary to set forth a framework for evaluating or distinguishing defenses, or indicated that any analysis need be conducted when the issue of applying a defense in this context is presented.FN35 Accordingly, the Court, finds that the current state of the law is that “[A] plaintiff in a wrongful death action is subject to [all] defenses [except interspousal immunity] which could have been asserted against the decedent had he lived and prosecuted the suit.” FN36 Under this rule, Plaintiff’s wrongful death claims here would be barred.
FN31. 784 P.2d 1152, 1155 (Utah 1989).
FN32. 948 P.2d at 794.
FN33. 944 P.2d at 332
FN34. See, e.g., Hirpa, 948 P.2d at 794 (“[D]efense can be asserted against a malpractice claim by a living plaintiff …. [;]same defense should be allowable in a wrongful death action by the deceased patient’s heirs.”).
FN35. Indeed, the recent pronouncements of the court appear to indicate that no specific analysis need be made. See, e.g., Hirpa, 948 P.2d at 794 (“[D]efense can be asserted against a malpractice claim by a living plaintiff…. [;]same defense should be allowable in a wrongful death action by the deceased patient’s heirs.”).
FN36. Id.
Even if the Utah Supreme Court would not state the rule so broadly, the Court predicts that the Court would specifically accept the defense of waiver of liability through release. Significantly, “while an action for wrongful death is an independent action accruing in the heirs of the deceased[, it] is based on the underlying wrong done to the decedent.” FN37 Here, because the decedent released Defendants of liability as to negligence claims, and because, as a matter of law, Defendants’ conduct cannot be characterized as grossly negligent, no legally identifiable wrong *1290 was done to him. FN38 Accordingly, this Court finds that Race Defendants are entitled to judgment as a matter of law on Plaintiff’s wrongful death claims.
FN37. Jensen, 944 P.2d at 332.
FN38. Accord Russ, 905 P.2d at 905–06 (holding that release barred wrongful death claim).
III. CONCLUSION
For the foregoing reasons, it is therefore
ORDERED that Defendants’ Motion to Strike (Docket No. 62) is GRANTED. It is further
ORDERED that Defendants’ Motion for Summary Judgment (Docket No. 45) is GRANTED. It is further
ORDERED that judgment shall be entered in favor of Race Defendants and against Plaintiffs on all claims.
SO ORDERED.
D.Utah,2007.
Milne v. USA Cycling Inc.
489 F.Supp.2d 1283
Motions, Pleadings and Filings (Back to top)
• 2007 WL 1453357 (Expert Report and Affidavit) Second Affidavit of Sean Collinsworth (Feb. 5, 2007) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 2006 WL 4047524 (Trial Motion, Memorandum and Affidavit) Memorandum in Support of Motion for Summary Judgment (Dec. 29, 2006) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
• 2005 WL 2918371 (Trial Pleading) Answer and Demand for Jury Trial and Crossclaim (Sep. 29, 2005)
• 2005 WL 2918361 (Trial Pleading) Complaint and Jury Demand (Aug. 11, 2005)
• 2:05cv00675 (Docket) (Aug. 11, 2005)
• 2005 WL 5453636 (Partial Expert Testimony) Deposition of: Sean Collinsworth (2005) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
