Donahue v. Ledgends, Inc. , 331 P.3d 342 ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CLAIRE A. DONAHUE, )
) Supreme Court Nos. S-14910/14929
Appellant and )
Cross-Appellee, )
) Superior Court No. 3AN-10-07305 CI
v. )
) OPINION
LEDGENDS, INC. d/b/a ALASKA )
ROCK GYM, )
) No. 6932 - August 1, 2014
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Christine S. Schleuss, Law Office of
Christine S. Schleuss, Anchorage, for Appellant and Cross-
Appellee. Tracey L. Knutson, G irdwood, for Appellee and
Cross-Appellant.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
This case arises from an injury at a climbing gym. Claire Donahue broke
her tibia during a class at the Alaska Rock Gym after she dropped approximately three
to four-and-a-half feet from a bouldering wall onto the floor mat. Before class Donahue
had been required to read and sign a document that purported to release the Rock Gym
from any liability for participants’ injuries.
Donahue brought claims against the Rock Gym for negligence and
violations of the Uniform Trade Practices and Consumer Protection Act (UTPA). The
Rock Gym moved for summary judgment, contending that the release bars Donahue’s
negligence claim. It also moved to dismiss the UTPA claims on grounds that the act
does not apply to personal injury claims and that Donahue failed to state a prima facie
case for relief under the act. Donahue cross-moved for partial summary judgment on the
enforceability of the release as well as the merits of her UTPA claims. The superior
court granted the Rock Gym’s motion and denied Donahue’s, then awarded attorney’s
fees to the Rock Gym under Alaska Civil Rule 82.
Donahue appeals the grant of summary judgment to the Rock Gym; the
Rock Gym also appeals, contending that the superior court should have awarded fees
under Alaska Civil Rule 68 instead of Rule 82. We affirm the superior court on all
issues.
II. FACTS AND PROCEEDINGS
Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor
facility that is open to the public. Its interior walls have fixed climbing holds and routes;
for a fee, it provides classes and open gym or free climbing time. There are signs posted
around the Rock Gym warning of the dangers of climbing, including falling; at her
deposition Donahue did not dispute that the signs were there when she visited the gym.
Donahue had been thinking about trying rock climbing for several years,
and she finally decided in March 2008 to attend a class at the Rock Gym called “Rockin’
Women.” She testified that she chose the class because she thought it could be tailored
to specific skill levels, and because she “got the impression [from the advertisements]
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that that is the type of group it was, that it was a . . . safe way to learn to climb.” She also
testified she understood that the essential risk of climbing is falling.
Donahue had no rock climbing experience, but she was an occasional
runner and cyclist and had pursued other high-risk athletic activities such as kite-
boarding. She had been a river guide on the Colorado River after college. She had
engaged in physical occupations such as commercial fishing and construction. She
testified that she understood the nature of risky activities and felt competent to decide
about them for herself. In connection with other recreational activities, she had signed
releases and waivers similar to the one she signed at the Rock Gym. She testified that
she understood that parties who sign contracts generally intend to be bound by them.
When Donahue arrived at the Rock Gym for her first class, she was given
a document entitled “Participant Release of Liability, Waiver of Claims, Assumption of
Risks, and Indemnity Agreement — Alaska Rock Gym.” She was aware of the
document’s nature and general intent but testified that although she signed it voluntarily,
she did not read it closely.
The release contains nine numbered sections on two single-spaced pages.
There is also an unnumbered introductory paragraph; it defines the Rock Gym to include,
among others, its agents, owners, participants, and employees, as well as “all other
persons or entities acting in any capacity on its behalf.”
Section one of the release contains three paragraphs. The first recites the
general risks of rock climbing, including injury and death, and explains that these risks
are essential to the sport and therefore cannot be eliminated. The second paragraph lists
about a dozen specific risks inherent in rock climbing, including “falling off the climbing
wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence[,]
inexperience, . . . or fatigue.” The third paragraph asserts that the gym and its instructors
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“seek safety, but they are not infallible.” It describes some errors instructors might
make, including being ignorant of a participant’s abilities and failing to give adequate
warnings or instructions. The final sentence in the third paragraph reads, “By signing
this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE for my own
safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or
activities.”
Section two begins, “I expressly agree and promise to accept and assume
all the risks . . .”; it then highlights the voluntary nature of participation in Rock Gym
activities.
Section three is the clause that releases the Rock Gym from liability (the
releasing clause). It reads in full,
I hereby voluntarily release, forever discharge, and agree to
indemnify and hold harmless the [Rock Gym] from any and
all claims, demands, or causes of action, which are in any
way connected with my participation in these activities or my
use of [the Rock Gym’s] equipment, rentals or facilities,
including any such claims which allege negligent acts or
omissions of [the Rock Gym].
The next six sections of the release address other issues: indemnification
for attorney’s fees, certification that the participant is fit to climb, permission to provide
first aid, permission to photograph for promotional purposes, the voluntariness of
participation and signing the release, and jurisdiction for claims arising from the release.
The ultimate paragraph is printed in bold. It reads in part,
By signing this document, I acknowledge that if anyone is
hurt or killed or property is damaged during my
participation in or use of [Rock Gym] activities or
premises or facilities or rental equipment, I may be found
by a court of law to have waived my right to maintain a
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lawsuit against [the Rock Gym] on the basis of any claim
from which I have released them herein.
Finally, centered on the second page, in bold capital letters directly above
the signature line, the release reads: “I HAVE HAD SUFFICIENT OPPORTUNITY
TO READ THIS ENTIRE DOCUMENT. I HAVE READ AND UNDERSTOOD
IT, AND I AGREE TO BE BOUND BY ITS TERMS.”
Donahue’s hand-printed name and the date appear on the first page of the
release, and her initials are at the bottom of the page; her signature appears on the second
page, along with her printed name, her contact information, and the date.
Donahue completed her first class on harnessed climbing on March 23,
2008, and returned for a second class on May 11. When class began she was told that
the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did
not express any hesitation. She climbed for almost two hours, successfully ascending
and descending a number of routes. During this time she saw other people drop from the
wall without injury. After another successful ascent near the end of the lesson, she felt
unable to climb down using the available holds. Her feet were somewhere between three
and four-and-a-half feet from the ground. Her instructor suggested that she drop to the
mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her
tibia in four places. She was attended to immediately by Rock Gym personnel and a
physician who happened to be present.
The Rock Gym had run various advertisements during the two years
preceding Donahue’s accident, using a number of different slogans. One newspaper ad,
running on at least three occasions, stated: “[T]the only safe place in town to hang out.”
Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed;
its text contained the same slogan and added, in part, “Trust us, it still exists. . . . [E]very
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child in your family will be reminded of what it’s all about — friends and fun.” A third
ad described climbing programs for everyone in the family and said, “[Y]ou have
nothing to lose and everything to gain.” In an affidavit, Donahue testified she had read
these ads.
Donahue sued the Rock Gym for negligent failure to adequately train and
supervise its instructors. She alleged that the Rock Gym was liable for its employee’s
negligent instruction to drop from the bouldering wall. She also alleged a violation of
the Unfair Trade Practices and Consumer Protection Act, contending that the Rock
Gym’s advertisements “misleadingly advertised [the gym] as a safe place where users
of its services had nothing to lose and everything to gain.”
The Rock Gym moved for summary judgment on all of Donahue’s claims.
She opposed the motion and cross-moved for partial summary judgment herself, arguing
that the Rock Gym had violated the UTPA as a matter of law and that the release she had
signed was null and void.
The superior court granted the Rock Gym’s motion and denied Donahue’s
cross-motion. It then granted the Rock Gym, as prevailing party, partial attorney’s fees
under Civil Rule 82(a)(3).
III. STANDARDS OF REVIEW
We review grants of summary judgment de novo, determining whether the
record presents any genuine issues of material fact.1 In making this determination, we
construe the facts in favor of the non-moving party.2 If the record fails to reveal a
1
Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of
Corps., Bus. & Prof’l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).
2
Id. (citing McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska
(continued...)
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genuine factual dispute and the moving party was entitled to judgment as a matter of law,
the trial court’s grant of summary judgment must be affirmed.3
We decide questions of law, including statutory interpretation, using our
independent judgment.4 We will adopt the most persuasive rule of law in light of
precedent, reason, and policy.5 This requires us, when interpreting statutes, to “look to
the meaning of the language, the legislative history, and the purpose of the statute.”6
“A superior court’s determination whether waiver occurred is a question
of fact that we review for clear error.”7
2
(...continued)
2001)).
3
Kelly v. Muncipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012).
4
Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).
5
ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley Electric
Ass’n, 267 P.3d 1151, 1157 (Alaska 2011).
6
Id.
7
Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).
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IV. DISCUSSION
A. The Release Is Enforceable And Bars Donahue’s Negligence Claims.
Three cases define Alaska law on pre-activity releases from liability.8
These cases consistently state that such releases are not per se invalid;9 in each of the
cases, however, we concluded that the release at issue did not bar the plaintiff’s claim.
Kissick v. Schmierer involved a plane crash that caused the deaths of all
four people aboard.10 The three passengers had signed a covenant not to sue before they
boarded the plane.11 They agreed in the release not to bring a claim “for any loss,
damage, or injury to [their] person or [their] property which may occur from any cause
whatsoever.”12 When the passengers’ surviving spouses filed wrongful death claims
8
Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley
Motors, Inc., 36 P.3d 628 (Alaska 2001); Kissick v. Schmierer, 816 P.2d 188 (Alaska
1991).
9
Kerr, 91 P.3d at 961-62 (noting that “under Alaska law pre-recreational
exculpatory releases are held to a very high standard of clarity”); Moore, 36 P.3d at 631
(noting that “an otherwise valid release is ineffective w hen releasing a defendant from
liability would violate public policy” (emphasis added)); Kissick, 816 P.2d at 191 (“A
promise not to sue for future damage caused by simple negligence may be valid.”
(quoting 15 SAMUEL W ILLISTON , A TREATISE ON THE LAW OF CONTRACTS § 1750A, at
143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982)
(upholding provision not to sue in settlement agreement and noting that, “[a]s a matter
of law, . . . a valid release of all claims will bar any subsequent claims covered by the
release”).
10
Kissick, 816 P.2d at 188.
11
Id. at 189.
12
Id.
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against the pilot, their claims were allowed to proceed despite the release.13 We ruled
that “[i]ntent to release a party from liability for future negligence must be conspicuously
and unequivocally expressed.”14 We also held that a release must use the word
“negligence” to establish the required degree of clarity, something the release in Kissick
did not do.15 Further, since liability for “death” was not specifically disclaimed and the
term “injury” was ambiguous, we held that the release did not apply to claims for
wrongful death, construing it against the drafter.16
The second case, Moore v. Hartley Motors, involved an injury during a
class on driving all-terrain vehicles (ATVs).17 We first addressed whether the plaintiff’s
signed release violated public policy.18 We noted that the type of service involved was
neither essential nor regulated by statute;19 these factors, along with the voluntariness of
the plaintiff’s participation, persuaded us that the defendants20 had no “decisive
13
Id.
14
Id. at 191 (citations omitted).
15
Id. (citing W. PAGE K EETON , ET AL., PROSSER AND K EETON ON THE LAW OF
TORTS § 68, at 483-84 (5th ed.1984) (footnotes omitted)).
16
Id. at 191-92.
17
36 P.3d 628, 629 (Alaska 2001).
18
Id. at 631-32.
19
Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking,
and scuba diving, for which releases have been upheld in other jurisdictions).
20
The defendants included the dealer that sold the plaintiff the ATV and
referred her to the safety course, the ATV Safety Institute that developed the curriculum,
and the individual instructor. Id. at 629.
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advantage in bargaining strength.”21 We therefore held that the release did not violate
public policy.22
We did decide, however, that the release did not conspicuously and
unequivocally express an intent to release the defendants from liability for the cause of
the exact injury that occurred — a rollover when the plaintiff drove over a big rock
hidden in tall grass.23 The release covered the inherent risks of ATV riding, but we
found that it also included “an implied and reasonable presumption that the course [was]
not unreasonably dangerous.”24 We found there to be fact questions about whether “the
course posed a risk beyond ordinary negligence related to the inherent risks of off-road
ATV riding assumed by the release,” and we held that summary judgment for the
defendants on the basis of the release was therefore improper.25
The third case, Ledgends, Inc. v. Kerr, involved the same rock gym as this
case.26 It involved a similar injury as well, sustained when the plaintiff fell from a
bouldering wall.27 Unlike Donahue, however, who landed squarely on the floor mat, the
plaintiff in Kerr was allegedly injured when her foot slipped through the space between
21
Id. at 631-32.
22
Id.
23
Id. at 632.
24
Id.
25
Id. at 633-34.
26
91 P.3d 960 (Alaska 2004).
27
Id. at 961.
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two floor mats.28 The plaintiff alleged the gym knew of the defect in the landing area but
had failed to fix it.29
The superior court, whose order we approved and attached as an appendix
to our opinion, cited Kissick for the notion that a pre-activity release for tortious conduct
must be “clear, explicit, and comprehensible in each of its essential details.”30 The
superior court also noted the requirement that “such an agreement, read as a whole, must
clearly notify the prospective releasor or indemnitor of the effect of signing the
release.”31 With these principles in mind, the superior court pointed to language in the
release that was problematic because it was internally inconsistent: the release stated that
the gym would try to keep its facilities safe and its equipment in good condition, but it
simultaneously disclaimed liability for actions that failed to meet such standards.32 The
superior court construed this ambiguity against the drafter and held that the release was
not valid as a bar to the plaintiff’s negligence claims, a holding we affirmed.33
In this case, the superior court concluded that Kissick, Moore, and Kerr,
considered together, meant that “an effective liability release requires six characteristics.”
We agree with the superior court’s formulation of the list:
28
Id.
29
Id.
30
Id. at 961-62 (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska
1991)) (internal quotation marks omitted).
31
Id. at 962 (quoting Kissick, 816 P.2d at 191) (internal quotation marks
omitted).
32
Id. at 963.
33
Id.
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(1) the risk being waived must be specifically and clearly set
forth (e.g. death, bodily injury, and property damage); (2) a
waiver of negligence must be specifically set forth using the
word “negligence”; (3) these factors must be brought home
to the releasor in clear, emphasized language by using simple
words and capital letters; (4) the release must not violate
public policy; (5) if a release seeks to exculpate a defendant
from liability for acts of negligence unrelated to inherent
risks, the release must suggest an intent to do so; and (6) the
release agreement must not represent or insinuate standards
of safety or maintenance.
The superior court found that each of these characteristics was satisfied in this case, and
again we agree.34
34
Donahue does not challenge the release on public policy grounds, so the
fourth characteristic of a valid release is satisfied here. Alaska recognizes that
recreational releases from liability for negligence are not void as a matter of public
policy, because to hold otherwise would impose unreasonable burdens on businesses
whose patrons want to engage in high-risk physical activities. Kissick, 816 P.2d at 191
(“A promise not to sue for future damage caused by simple negligence may be valid.”
(internal citations and quotation marks omitted)). The New Jersey Supreme Court, in a
case involving claims against a health club, held that liability releases in gym cases do
not violate public policy in part because gyms remain liable for their gross negligence
or recklessness — levels of culpability not alleged in this case. Stelluti v. Casapenn
Enters., 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 161
P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that “[m]ost, but
not all” hold that releases of ordinary negligence in recreational activities do not violate
public policy but “the vast majority of decisions state or hold that such agreements
generally are void” if they attempt to release “aggravated misconduct” such as gross
negligence).
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1. The risks being waived (falling and instructor negligence) are
specifically and clearly set forth.
A conspicuous and unequivocal statement of the risk waived is the keystone
of a valid release.35 Here, the release clearly and repeatedly disclosed the risk of the
specific injury at issue: injury from falling while climbing. The following are excerpts
from the Rock Gym’s release:
I specifically acknowledge that the inherent risks associated
with rock climbing . . . include[], but [are] not limited to:
falling off of the climbing wall, . . . impacting the
ground . . . , general slips/trips/falls or painful crashes while
using any of the equipment or walls or bouldering areas or
landing pits or work-out areas or the climbing structures or
the premises at large, climbing out of control or beyond my
or another participant’s limits, . . . my own negligence or
inexperience, dehydration or exhaustion or cramps or fatigue
....
To the extent that the risk at issue is the risk of hitting the ground after falling (or
dropping in what is essentially an intentional fall), the first characteristic of a valid
release is satisfied by this language.
Rather than focusing on her injury, however, Donahue focuses on its
alleged cause, which she argues was the negligent training and supervision of Rock Gym
instructors and the consequently negligent instructions she was given. She claims that
the release did not specifically and clearly set forth this risk, and that she was therefore
unaware that she was waiving the right to sue for instructor negligence.
But the release did cover this risk. The first paragraph expressly
incorporates “employees” into the definition of the entity being released. The release
further warns that Rock Gym “instructors, employees, volunteers, agents or others . . .
35
Kerr, 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632
(Alaska 2001); Kissick, 816 P.2d at 191.
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are not infallible” and that “[t]hey may give inadequate warnings or instructions.” In its
on-site interactions with the public, the Rock Gym necessarily acts through its instructors
and other employees; Donahue knew she would be taking a class and that classes require
instructors. It would not be reasonable to conclude that the Rock Gym sought a release
only of those claims against it that did not involve the acts or omissions of any of its
employees, and we cannot construe the release in that way.36 We agree with the superior
court’s conclusion that “the Release clearly expresses that it is a release of liability for
the negligence of the releasor-participant, other participants, climbers, spotters or
visitors, as well as [the Rock Gym’s] negligence, including [Rock Gym] employees.”
Donahue also argues that she could not understand the risks involved due
to the release’s appearance and presentation. However, even viewing the facts in the
light most favorable to her, the record does not support her argument. Although
Donahue did not carefully read the release before signing it,37 she was aware she was
signing a liability release. She has signed a number of such documents in the past and
was familiar with their general purpose. When asked to read the release at her
deposition, she testified that she understood the pertinent risks it described. There is no
reason to believe that she would have found it less comprehensible had she read it at the
time she signed it.
36
See Kahn v. E. Side Union High Sch. Dist., 75 P.3d 30, 40 (Cal. 2003)
(holding that “the risks associated with learning a sport may themselves be inherent risks
of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor
asked the student to take action beyond what, with hindsight, is found to have been the
student’s abilities” (internal citations and quotation marks omitted)).
37
Failure to read a contract in detail before signing it is no defense to its
enforceability. Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991).
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2. The waiver of negligence is specifically set forth using the word
“negligence.”
Kissick and Kerr both emphasize that a valid release from liability for
negligence claims requires use of the word “negligence.”38 This requirement is met here.
The Rock Gym’s release first lists negligence among the inherent risks of
climbing (“the negligence of other climbers or spotters or visitors or participants” and
“my own negligence”). It then provides: “I hereby voluntarily release, forever
discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all
claims, demands, or causes of action, . . . including any such claims which allege
negligent acts or omissions of [the Rock Gym].” (Emphasis added.) The phrase “any
and all claims” is thus expressly defined to include claims for negligence.
Cases from other jurisdictions support the conclusion that the language in
the Rock Gym’s release covers all of Donahue’s negligence claims. In Rosencrans v.
Dover Images, Ltd., the plaintiff was injured on a motocross track after falling from his
bike and being struck by two other riders.39 A California Court of Appeal concluded that
the signed waiver releasing the track from liability for “any losses or damages . . .
whether caused by the negligence of [the Releasees] or otherwise” precluded the
plaintiff’s claim “for ordinary negligence as well as negligent hiring and supervision” of
employees at the racetrack (though it did not release the track from liability for gross
negligence — a claim not made here).40
38
Kerr, 91 P.3d at 961; Kissick, 816 P.2d at 191.
39
122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).
40
Id. at 30. See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.
App. 2002) (“Negligent hiring, retention, and supervision claims are all simple
negligence causes of action based on an employer’s direct negligence rather than on
(continued...)
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In short, the requirement that a waiver of negligence be specifically set out
using the word “negligence” is satisfied by the Rock Gym’s release.
3. The important factors are brought home to the releasor in clear,
emphasized language with simple words and capital letters.
Donahue argues that although “negligence” is expressly mentioned and
disclaimed in the release, its placement at the end of long sentences written in small font
rendered its presence meaningless to her. Quoting a California case, she argues that
when the risk of negligence is shifted, a layperson “should not be required to muddle
through complex language to know that valuable, legal rights are being relinquished.”41
Donahue also cites New Hampshire and Washington cases in which the structure and
organization of releases obscured the language that purported to shield the defendants
from claims.42 These cases considered factors such as “whether the waiver is set apart
or hidden within other provisions, whether the heading is clear, [and] whether the waiver
is set off in capital letters or in bold type.”43 In one Washington case, a release was
invalidated because the releasing language was in the middle of a paragraph.44
Fundamentally, Donahue argues that the Rock Gym’s release was so
ambiguous and laden with legalese that she lacked any real ability to understand that she
40
(...continued)
vicarious liability.” (citations omitted)).
41
Conservatorship of the Estate of Link v. Nat’l Ass’n for Stock Car Auto
Racing, Inc., 205 Cal. Rptr. 513, 515 (Cal. App. 1984).
42
See Wright v. Loon Mtn. Recreation Corp., 663 A.2d 1340, 1342 (N.H.
1995); Johnson v. UBAR, LLC, 210 P.3d 1021, 1023 (Wash. App. 2009).
43
Johnson, 210 P.3d at 1023 (citing Baker v. City of Seattle, 484 P.2d 405
(Wash. 1971)).
44
Baker, 484 P.2d at 407.
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was agreeing to release the Rock Gym from the negligence of its instructors. She
complains of the release’s “lengthy, small-printed, and convoluted” language which
required a “magnifying glass and lexicon” to decipher. She points out that the clause
purporting to release the Rock Gym from liability is not obvious or emphasized through
bold print or capital letters. She testified at her deposition that she believed the waiver
shielded the gym only “from frivolous lawsuits, from people blaming them for something
that’s not their fault.”
It is true that the release’s text is small and the releasing clause is in the
middle of the document toward the bottom of the first page. But the clauses addressing
negligence do not appear to be “calculated to conceal,” as Donahue argues. Though not
highlighted, they are in a logical place where they cannot be missed by someone who
reads the release. The clause releasing the Rock Gym from liability is a single sentence
set out as its own numbered paragraph, and it is not confusing or needlessly wordy.45
The inherent risks of climbing are enumerated in great detail but using ordinary
descriptive language that is easy to understand.46 Several sentences are devoted to the
45
Paragraph 3 of the release reads: “I hereby voluntarily release, forever
discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all
claims, demands, or causes of action, which are in any way connected with my
participation in these activities or my use of [the Rock Gym’s] equipment, rentals or
facilities, including any such claims which allege negligent acts or omissions of [the
Rock Gym].”
46
Paragraph 1 of the release lists the inherent risks of climbing as including
“but . . . not limited to”:
falling off of the climbing wall, being fallen on or impacted
by other participants, poor or improper belaying, the
possibility that I will be jolted or jarred or bounced or thrown
to and fro or shaken about while climbing or belaying,
entanglement in ropes, impacting the ground and/or climbing
(continued...)
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role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they
“have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and
that they may “be ignorant of mine or another participant’s fitness or abilities” and “may
give inadequate warnings or instructions.”
Because releases should be read “as a whole” in order to decide whether
they “clearly notify the prospective releasor or indemnitor of the effect of signing the
agreement,”47 we consider these provisions in the context of the entire document. Three
other sections of emphasized text mitigate Donahue’s complaints about ambiguity and
incomprehensibility. First, section one reads in part, “I AM ULTIMATELY
RESPONSIBLE for my own safety during my use of or participation in [Rock Gym]
facilities, equipment, rentals or activities” (bold in original). This alone makes it clear
to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift
46
(...continued)
wall, loose or dropped or damaged ropes or holds, equipment
failure, improperly maintained equipment which I may or
may not be renting from [the Rock Gym], displaced pads or
safety equipment, belay or anchor or harness failure, general
slips/trips/falls or painful crashes while using any of the
equipment or walls or bouldering areas or landing pits or
work-out areas or the climbing structures or the premises at
large, climbing out of control or beyond my or another
participant[’s] limits, the negligence of other climbers or
spotters or visitors or participants who may be present,
participants giving or following inappropriate “Beta” or
climbing advice or move sequences, mine or others’ failure
to follow the rules of the [Rock Gym], my own negligence or
inexperience, dehydration or exhaustion or cramps or fatigue
— some or all of which may diminish my or the other
participants’ ability to react or respond.
47
Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).
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responsibility to the climber regardless of the actions of anyone else. Second, a final
unnumbered paragraph, set out in bold letters, reads in part: “By signing this document,
I acknowledge that if anyone is hurt or killed or property is damaged during my
participation in or use of [Rock Gym] activities or premises or facilities or rental
equipment, I may be found by a court of law to have waived my right to maintain
a lawsuit against [the Rock Gym] on the basis of any claim from which I have
released them herein.” And finally, directly above the lines where Donahue entered her
signature, her printed name, her contact information, and the date, the release reads, in
bold and capital letters, “I HAVE READ AND UNDERSTOOD [THE RELEASE],
AND I AGREE TO BE BOUND BY ITS TERMS.” If Donahue had read the release
and found herself genuinely confused about any of its terms, she was prominently
notified that she should inquire about it before signing.
The New Hampshire case on which Donahue relies, Wright v. Loon
Mountain Recreation Corp., examined the release in question to determine whether “a
reasonable person in the position of the plaintiff would have understood that the
agreement clearly and specifically indicated the intent to release the defendant from
liability for its own negligence.”48 Applying that test here, we conclude that a reasonable
person in Donahue’s position could not have overlooked or misunderstood the release’s
intent to disclaim liability. Our case law’s third characteristic of a valid release is
therefore satisfied.
48
663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson, 210 P.3d at 1021
(holding reasonable persons could disagree about the conspicuousness of the release
provision in the waiver, and remanding for trial).
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4. Regardless of whether falling and instructor negligence are
inherent risks of rock climbing, the release specifically disclaims
liability for them.
The fifth characteristic set forth by the superior court49 is that “if a release
seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent
risks, the release must suggest an intent to do so.”50 This requirement stems from the
release’s ill-defined scope in Moore; the injury that occurred — arguably caused by an
unreasonably dangerous ATV training course — was not obviously included in the
inherent risks of riding ATVs, which the signed release did intend to cover.51 Here, in
contrast, the injury and its alleged causes are all expressly covered by the release, as
explained above. Negligence claims are specifically contemplated, as are “falls,”
“impact” with the ground, and “inadequate warnings or instructions” from Rock Gym
instructors. Regardless of whether these are inherent risks of climbing, they are
specifically covered by the release. This characteristic of a valid release is therefore
satisfied.
5. The release does not represent or imply standards of safety or
maintenance that conflict with an intent to release negligence
claims.
The sixth characteristic of a valid release is that it does not imply standards
of safety or maintenance that conflict with an intent to waive claims for negligence.52 The
Rock Gym argues that nothing in the release confuses its purpose, unlike the release at
49
As noted above, the fourth characteristic of a valid release — that it not
violate public policy — is not at issue on this appeal. See supra note 34.
50
See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).
51
Id.
52
See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).
- 20 - 6932
issue in Kerr, which at least implicitly promised that equipment would be kept “in good
condition.”53 We agree. In fact, far from providing assurances of safety, the release
highlights the fallibility of the Rock Gym’s employees, equipment, and facilities,
explicitly stating that the equipment may “fail,” “malfunction[,] or be poorly maintained”
and that the staff is “not infallible,” may be ignorant of a climber’s “fitness or abilities,”
and “may give inadequate warnings or instructions.”
Donahue agrees that the release is not internally inconsistent, but she argues
that the advertisements run by the Rock Gym had the same confounding impact on her
understanding of it as the release’s language about equipment maintenance had in Kerr.
She contends that she relied on the ads’ assurances that the gym was “a safe place” and
the class “would be a safe way to learn to climb” when she enrolled in the climbing class.
She argues that these assurances created ambiguity that, as in Kerr, requires that the
release be interpreted in a less exculpatory way.
Although extrinsic evidence may be admissible as an aid to contract
interpretation,54 the release here clearly defines climbing as an inherently risky activity.
And we have said that
where one section deals with a subject in general terms and
another deals with a part of the same subject in a more
detailed way, the two should be harmonized if possible; but if
there is a conflict, the specific section will control over the
general.[55]
53
Id. at 963.
54
Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004)
(citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).
55
Id. (quoting Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).
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Were we to give the Rock Gym’s advertisements any weight in our analysis of the release,
we would not find that their use of the word “safe” overrode the release’s very clear
warnings about the specific risks of climbing.
Because the advertisements cannot reasonably be considered as
modifications to the release, and because the release does not otherwise contain implicit
guarantees of safety or maintenance that could confuse its purpose, we find the final
requirement of a valid release to be satisfied. The release thus satisfies all characteristics
of a valid release identified by our case law, and we affirm the superior court’s grant of
summary judgment to the Rock Gym on this issue.
B. The UTPA Does Not Apply To Personal Injury Claims.
Under the UTPA, “[a] person who suffers an ascertainable loss of money or
property as a result of another person’s act or practice declared unlawful by AS 45.50.471
may bring a civil action to recover for each unlawful act or practice three times the actual
damages . . . .”56 Donahue alleges that, by publishing ads that gave the impression the
Rock Gym was safe, the Rock Gym engaged in “unfair methods of competition and unfair
or deceptive acts or practices in the conduct of trade or commerce” which are unlawful
under the statute.57 We have not yet decided whether the statutory phrase “loss of money
or property” includes personal injury claims. We now hold that it does not.
The UTPA was “designed to meet the increasing need in Alaska for the
protection of consumers as well as honest businessmen from the depredations of those
persons employing unfair or deceptive trade practices.”58 The act protects the consumer
56
AS 45.50.531(a) (emphasis added).
57
AS 45.50.471(a).
58
W. Star Trucks, Inc. v. Big Iron Equip. Servs., Inc., 101 P.3d 1047, 1052
(continued...)
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from deceptive sales and advertising practices,59 and it protects honest businesses from
their unethical competitors.60 Donahue concedes that we have limited the UTPA to
“regulating practices relating to transactions involving consumer goods and services.”61
She contends, however, that because we have never restricted the types of damages
available for conduct within the UTPA’s reach, damages for personal injury should be
recoverable.
The superior court observed that there is nothing in the UTPA’s legislative
history to support Donahue’s contention that the Alaska Legislature intended the act “to
expand liability for personal injury or wrongful death or to supplant negligence as the
basis for such liability.” The superior court identified “significant incongruities between
58
(...continued)
(Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352,
House Journal Supp. No. 10 at 1, 1970 House Journal 744) (court’s emphasis and
internal quotation marks omitted).
59
See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45
(Alaska 2007) (affirming superior court’s award of treble damages against a car dealer
for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc., 2 P.3d
618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer’s warranty in
favor of buyers).
60
See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001)
(holding suit to be frivolous where real estate buyer’s agents sued competitors, alleging
false and misleading advertising); Odom v. Fairbanks Mem’l Hosp., 999 P.2d 123, 127,
131-32 (Alaska 2000) (holding viable physician’s claims against hospital for retaliatory
and anticompetitive behavior).
61
See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062
(Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha
Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA
does not apply to the sale of standing timber because it is real property rather than a
consumer good)).
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the elements of common law personal injury claims and the UTPA, which suggest that
the two claims cannot be reconciled.” The court explained:
For most of the past twenty years the Alaska Legislature has
enacted and amended, in various forms, multiple iterations of
tort reform aimed at reducing, not expanding, the scope of
civil liability for personal injury and wrongful death.
Expanding UTPA liability to personal injury and wrongful
death would contradict many of the tort reform provisions
enacted by the legislature in AS 09.17.010-080. For example,
AS 09.17.020 allows punitive damages only if the plaintiff
proves defendant’s conduct was outrageous, including acts
done with malice or bad motives, or with reckless indifference
to the interest of another person. The UTPA, on the other
hand, does not require such a culpable mental state and almost
as a matter of course allows a person to receive trebled actual
damages. AS 09.17.060 limits a claimant’s recovery by the
amount attributable to the claimant’s contributory fault; the
UTPA, in contrast, does not provide a contributory fault
defense. Moreover, AS 09.17.080 apportions damages
between multiple tortfeasors whereas the UTPA does not
permit apportionment of damages. A UTPA cause of action
for personal injury or wrongful death would sidestep all of
these civil damages protections.
We agree with the superior court that the private cause of action available
under the UTPA conflicts in too many ways with the traditional claim for personal injury
or wrongful death for us to assume, without clear legislative direction, that the legislature
intended the act to provide an alternative vehicle for such suits. The language of AS
45.50.531(a) — “ascertainable loss of money or property” — does not provide that clear
direction. The legislature is well aware of how to identify causes of action involving
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personal injury and wrongful death, does so in other contexts,62 and declined to do so in
this statute.
Other states have similar laws, and their courts’ interpretations are helpful.
Section 531(a) has a counterpart in Oregon’s UTPA, which likewise allows private
actions by those who suffer a “loss of money or property.”63 The Oregon Court of
Appeals, considering an action for personal injuries occurring after a mechanic allegedly
misrepresented the state of a car’s brakes, held that the UTPA was not a vehicle for the
pursuit of personal injury claims.64 It held that the Act plainly had a restitutionary
purpose — “i.e., restitution for economic loss suffered by a consumer as the result of a
deceptive trade practice.”65 It noted the lack of any legislative history “to the effect that
by the adoption of that provision the legislature intended to confer upon private
individuals a new cause of action for personal injuries, including punitive damages and
attorney fees,” or of “any decisions to that effect by the courts of any of the many other
states which have adopted similar statutes.”66 It emphasized the availability of common
law remedies, which provided a range of possible causes of action for personal injury —
62
See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability
of persons providing alcoholic beverages, “ ‘civil damages’ includes damages for
personal injury, death, or injury to property of a person”); AS 05.45.200(4) (in statutes
governing liability of ski resorts, “‘injury’ means property damage, personal injury, or
death”); AS 09.10.070(a) (providing general statute of limitations for “personal injury
or death”); AS 09.17.010 (limiting noneconomic damages recoverable “for personal
injury or wrongful death”); AS 46.03.825(b)(1) (providing that limitations on oil spill
damages do not apply to “an action for personal injury or death”).
63
ORS 646.638(1); ORS 646.608.
64
Gross-Haentjens v. Leckenby, 589 P.2d 1209, 1210-11 (Or. App. 1979).
65
Id. at 1210; see also Fowler v. Cooley, 245 P.3d 155, 161 (Or. App. 2010).
66
Gross-Haentjens, 589 P.2d at 1210-11.
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negligence, breach of warranty, and strict products liability — and noted that these
remedies provide for a more expansive range of damages, such as pain and suffering, not
available under the UTPA.67
We agree with the reasoning of the Oregon court and conclude that Alaska’s
UTPA does not provide the basis for a claim for personal injury.
C. The Superior Court Did Not Clearly Err In Finding That The
Rock Gym Waived Any Claim For Rule 68 Attorney’s Fees.
The superior court granted the Rock Gym, as the prevailing party, 20 percent
of its reasonable, actual attorney’s fees under Civil Rule 82(b)(2). Twenty percent of
“actual attorney’s fees which were necessarily incurred” is the presumptively reasonable
award for a party who prevails in a case resolved short of trial but who does not recover
a money judgment.68
The Rock Gym contends that it should have been awarded fees under Civil
Rule 68 instead. Rule 68 provides that (a) where an adverse party makes an offer to allow
judgment entered against it in complete satisfaction of the claim, and (b) the judgment
finally entered is at least five percent less favorable to the offeree than the offer, the
67
Id. at 1211. Other courts have reached similar conclusions. See Beerman
v. Toro Mfg. Corp., 615 P.2d 749, 754 (Haw. App. 1980) (“[T]hough individual actions
based on damage to a consumer’s property may be within the purview of [the Hawaii
consumer protection act], the scope of the statutes does not extend to personal injury
actions.”); Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990) (“We
must hold that the General Assembly intended for the Consumer Protection Act to be
used by a person claiming damages for an ascertainable loss of money or property due
to an unfair or deceptive act or practice and not in a wrongful death action.”); Stevens v.
Hyde Athletic Indus., Inc., 773 P.2d 871, 873 (Wash. App. 1989) (“We hold actions for
personal injury do not fall within the coverage of the [Washington consumer protection
act].”).
68
See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) (“Awards made
pursuant to the schedule of Civil Rule 82(b) are presumptively correct.”).
- 26 - 6932
offeree shall pay a percentage of the reasonable actual attorney’s fees incurred by the
offeror from the date of the offer, the percentage depending on how close the parties are
to trial when the offer is made. The Rock Gym made a Rule 68 offer of judgment on
February 7, 2012, over two months before the April trial date. Donahue rejected the offer.
Under these facts, once judgment was granted in the Rock Gym’s favor, the conditions
for an award of 30 percent of “the offeror’s reasonable actual attorney’s fees” under the
Rule 68 schedule were satisfied.69
The question presented here, however, is whether the Rock Gym waived any
request for Rule 68 fees. The Rock Gym initially argued to the superior court that it
should be awarded full fees because of express language in the release, which reads:
Should [the Rock Gym] or anyone acting on their behalf, be
required to incur attorney’s fees and costs to enforce this
agreement, I agree to indemnify and hold them harmless for
all such fees and costs.
While arguing this point, the Rock Gym noted in a footnote that it was eligible for full
fees under AS 09.30.65 (the statute authorizing the Rule 68 procedure). But it made that
observation only in support of its argument for full fees under the release. Its motion did
not otherwise mention Rule 68; rather, as an alternative to fees under the indemnity
clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of
its fees under Rule 82 — far more than the scheduled award of 20 percent — in light of
Donahue’s “vexatious” behavior, particularly having complicated the case with claims
under the UTPA.
69
Alaska R. Civ. P. 68(b)(3). We note that the award of fees under Rule 68
was likely to be only nominally greater than that under Rule 82. Rule 68 affects only
fees incurred after the date the offer is made, here February 7, 2012. The parties had
already completed their summary judgment briefing by that time, and summary judgment
was entered a month later.
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The superior court denied the Rock Gym’s request for full fees based on the
release and ordered it to submit an affidavit detailing its counsel’s billings. The order also
stated, “Plaintiff should address the effect, if any, of defendant’s Rule 68 offer on the
amount of fees that may be awarded.” The Rock Gym submitted the required fee affidavit
and also moved for reconsideration, again arguing that full fees should be awarded under
the release’s indemnity clause; again relying on Rule 82 as an alternative; and failing to
mention Rule 68 at all. Donahue submitted no response.
The superior court again rejected the Rock Gym’s argument based on the
release’s indemnity clause and ordered the Rock Gym to submit a more detailed fee
affidavit. The Rock Gym filed another affidavit which did not address the offer of
judgment.
In its third order, the superior court again rejected the Rock Gym’s request
for full attorney’s fees and awarded 20 percent of its fees under Rule 82(b)(2). The Rock
Gym again moved for reconsideration. This time the Rock Gym argued that it was
entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion
to contend that the argument was not waived.70
The superior court then issued its fourth order on fees. It reaffirmed its Rule
82 award, finding that the Rock Gym had not adequately or timely made a claim under
Rule 68. The court observed that the Rock Gym’s failure to make the claim earlier was
likely a “tactical decision, initially, to pursue full attorney fees based on indemnity rather
70
As noted above, the increased percentage of attorney’s fees would only
apply to those fees incurred after the date the offer of judgment was made; the amount
at issue thus appears to be minimal.
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than present all of its alternative fee award theories at once.”
The superior court’s finding that the Rock Gym waived a request for fees
under Rule 68 is reviewed for clear error.71 We see no clear error here. The Rock Gym’s
reference to its offer of judgment in its motion for attorney’s fees was made only to
support its request for full fees under the indemnity provision of the release; the only
alternative it expressly requested was an award of enhanced fees under Rule 82. As the
superior court observed, it was not the court’s duty in this context “to solicit additional
arguments for a moving party.”72 Nor was the superior court obliged to consider the
Rule 68 argument when it was raised for the first time in motions for reconsideration.73
And under the circumstances of this case, including the modest difference between fee
awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself,74
we cannot see plain error.75
71
See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).
72
See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).
73
See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the
plaintiff’s submission of evidence only when she moved for reconsideration forecloses
her claim that the court abused its discretion by failing to rely on that evidence); Koller
v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged
to consider documents presented for the first time with a motion for reconsideration).
74
The offer did not encompass the Rock Gym’s counterclaim against
Donahue for contractual indemnity. See Progressive Corp. v. Peter ex rel. Peter, 195
P.3d 1083, 1089 (Alaska 2008) (“Both Rule 68 and AS 09.03.065 . . . implicitly require
that an offer of judgment include all claims between the parties and be capable of
completely resolving the case by way of a final judgment if accepted.”).
75
The plain error doctrine requires a party to prove that the error waived
below was “so prejudicial that failure to correct it will perpetuate a manifest injustice.”
Forshee, 145 P.3d at 500 n.36 (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska
(continued...)
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V. CONCLUSION
The judgment of the superior court is AFFIRMED.
75
(...continued)
App. 2000)) (internal quotation marks omitted).
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