United States District Court, D. South Dakota, Western Division
BRAD REED and TARA REED, individually and as Joint Limited Conservators of IR, a minor, Plaintiffs,
UNION RESORT, LLC d/b/a MYSTIC MINER, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE.
case concerns liability for an injury suffered by
plaintiffs' minor daughter, I.R., during a snow tubing
excursion. Plaintiffs allege claims of ordinary and gross
negligence against defendant, the resort at which I.R. was
injured. (Docket 16). Defendant now moves for summary
judgment on both claims. (Docket 21). It asserts plaintiffs
signed an exculpatory release barring its negligence claim,
that the gross negligence claim is insufficient as a matter
of law, and that both claims are barred because plaintiffs
assumed the risk of injury to I.R. (Docket 23). Plaintiffs
resist the motion in part, conceding that their negligence
claim is barred but arguing fact questions for a jury exist
regarding their gross negligence claim and defendant's
assumption of the risk defense. (Docket 30).
summary judgment motion was referred to Magistrate Judge
Veronica L. Duffy pursuant to the court's standing order
of October 16, 2014, and 28 U.S.C. § 636(b)(1) for a
report and recommendation (“R&R”). The
magistrate judge issued an R&R concluding summary
judgment should be granted on plaintiffs' negligence
claim and denied on their gross negligence claim. (Docket
43). Defendant timely objected to the R&R and plaintiffs
filed a response to the objections. (Dockets 46 & 47).
the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a
party files written objections to the magistrate judge's
proposed findings and recommendations, the district court is
required to “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge.” Id. For the reasons
given below, the court grants defendant's motion for
summary judgment as to plaintiffs' ordinary negligence
claim and denies it as to their gross negligence claim. The
court adopts the R&R to the extent it is consistent with
following recitation consists of the material facts developed
from the amended complaint (Docket 16), defendant's
answer (Docket 17), defendant's statement of undisputed
material facts (Docket 22), plaintiffs' response to those
facts (Docket 31), and other evidence in the record where
indicated. These facts are “viewed in the light most
favorable to the [party] opposing the motion.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The facts material to
defendant's motion for summary judgment are as follows.
and their children visited defendant's
resort near Lead, South Dakota, on March 13,
2015, “for an afternoon of recreational snow
tubing.” (Docket 31 at ¶ 1). At the time,
plaintiffs' youngest child, I.R., was seven years old.
Id. at ¶ 3. Plaintiffs signed a written release
of liability for each of their children, including I.R.,
before snow tubing. Id. at ¶¶ 8-9. By
signing the release, plaintiffs agreed that snow tubing is
“extremely hazardous” and can cause
“personal injury and/or death.” (Docket 27-2 at
p. 1). They affirmed they made the “voluntary choice to
participate in tubing” and allowed their children
“to do so despite the risks[.]” Id. They
accepted “the full responsibility for any and all . . .
damages or injury of any kind which may result[.]”
Id. Finally, they
fully release[d] [defendant] . . . from any and all liability
for personal injury . . . which results in any way from . . .
my child(ren)'s participation . . . including any caused
by negligence . . . including, but not limited to . . . lift
operations while loading or unloading, other tubers,
employees working lanes . . . or any other activities related
Id. Plaintiffs knew they agreed to release defendant
from liability by signing the document. (Docket 31 at
¶¶ 10, 12). They also knew allowing I.R. to snow
tube could result in injury. Id. at ¶ 16.
and their children each selected their own snow tubes from a
pile maintained by defendant. Id. at ¶ 23. They
would swap the tubes among themselves for each run down the
tubing slope. Id. at ¶ 25. Plaintiffs testified
during their depositions I.R. used a tube with a tear or hole
in the bottom for the run during which she was injured.
(Dockets 27-1 at p. 15 & 27-4 at p. 4). Employees
testified they left torn tubes in the resort's inventory
because they believed the torn tubes provided a safer ride
for children, due to the tubes' tendency to move slowly
down the slope. (Docket 31 at ¶ 54). They knew torn
tubes could sometimes come to a stop mid-slope. (Dockets 33-1
at pp. 6-7 & 27-11 at p. 3).
recall seeing a resort employee on the top of the hill used
for tubing on two occasions before the accident. (Docket 31
at ¶ 27). However, neither that employee nor any other
managed the flow of tubers down the slope. Id. at
¶ 20. The management process is referred to as
“staging.” (Docket 43 at p. 4). Because no
employee was staging the tube runs, some tubers were going
down the slope before the previous tuber had completed their
run. (Docket 27-5 at p. 7). Plaintiff Brad Reed described the
slope as a “free-for-all.” Id.
using the torn tube, came to a stop during her final run
approximately three-fourths of the way down the slope.
(Docket 31 at ¶ 37). Another tuber in plaintiffs'
party, a social worker from the Philippines named Alex, began
her run down the same lane as I.R. while I.R. was stopped on
the slope. Id. at ¶¶ 4, 38. No. resort
employee directed Alex to begin her run while I.R. was still
on the slope. Id. at ¶ 40. Alex collided with
I.R., causing I.R. serious head injuries. Id. at
¶ 39; Docket 16 at ¶¶ 13-14. Plaintiff Tara
Reed testified she found I.R.'s tube was “full of
snow” after the accident. (Docket 27-1 at pp. 15-16).
She believed the snow in the tube caused I.R. to stop
mid-slope. Id. at p. 16.
pointing to deposition testimony by resort employees, assert
the resort was “chronically
understaffed.” (Docket 31 at p. 17) (citing Dockets 33-8
at p. 2, 33-5 at p. 4 & 33-4 at pp. 2-3). An employee
testified that a manager would assign the resort's
limited staff to different locations each day as justified by
staff availability. (Docket 33-5 at p. 5). The tubing hill
generally required three employees: one at the bottom of the
hill who would hook the tubes onto a lift mechanism that
transported them up the hill, and two at the top of the hill,
one for staging and one for unloading tubes from the lift
mechanism. Id. at pp. 5-6; Docket 33-4 at pp. 2-3.
An employee testified resort management prioritized
stationing an employee at the bottom of the tubing slope.
(Docket 33-4 at p. 5).
provided incident reports from the winter seasons between
2010 and 2015 (except for the 2013-2014 season, for which
records were not available) to its expert, James Engle.
(Docket 26-2 at pp. 7-8). The records showed 72 tubing
incidents during those seasons, with 17 recording a collision
between tubers. Id. at p. 7; Docket 31 at ¶ 55.
Only one incident involved a mid-slope collision.
Id. Plaintiffs note the incident reports show five
tuber collisions within a few weeks of I.R.'s accident.
(Docket 31 at ¶ 31). The magistrate judge astutely noted
neither party contextualized the incident report evidence.
(Docket 43 at pp. 13-14). The record does not show how many
tubers in total used the slope during the time documented by
the incident reports, what criteria defendant used to
determine the types of incidents necessitating a report, or
whether defendant diligently documented all
raises six objections to the R&R. (Docket 46). Five of
the objections relate to the magistrate judge's
recommendation that summary judgment should be denied as to
plaintiffs' gross negligence claim. Id. at pp.
1-10. As summarized by the court, the objections contend the
magistrate judge erred by:
1. Concluding plaintiffs established a genuine issue of fact
as to whether defendant knew injury to I.R. was probable.
Id. at pp. 2-3.
2. Concluding plaintiffs established a genuine issue of fact
as to whether the risk of harm posed by defendant's
negligence was of a sufficient magnitude. Id. at pp.
3. Failing to address the lack of evidence regarding
“the probability of the precise result”-i.e.,
I.R.'s injury. Id. at p. 5.
4. Concluding plaintiffs established a genuine issue of fact
as to whether I.R.'s injury was probable. Id. at
5. Concluding lack of a staging employee is sufficient
evidence to support plaintiffs' gross negligence claim.
Id. at pp. 8-10.
6. Failing to conclude deposition evidence establish
plaintiffs assumed the risk of I.R.'s ...