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Reed v. Union Resort, LLC

United States District Court, D. South Dakota, Western Division

March 25, 2019

BRAD REED and TARA REED, individually and as Joint Limited Conservators of IR, a minor, Plaintiffs,
v.
UNION RESORT, LLC d/b/a MYSTIC MINER, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         This 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).

         Defendant's 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).

         Under 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 this order.

         ANALYSIS

         I. Facts

         The 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.

         Plaintiffs and their children visited defendant's resort[1] 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 to tubing[.]

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.

         Plaintiffs 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).

         Plaintiffs 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.

         I.R., 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.

         Plaintiffs, pointing to deposition testimony by resort employees, assert the resort was “chronically understaffed.”[2] (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).

         Defendant 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 incidents.[3] Id.

         II. Defendant's Objections

         Defendant 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. 4-5.
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 pp. 6-7.
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 ...

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