IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SCOTT BARTH,
Plaintiff,
C.A. No. NlSC-01-197 MMJ
V.
BLUE DIAMOND, LLC (d/b/a BLUE TRIAL BY JURY OF
DIAMOND MX PARK), a Delaware TWELVE DEMANDED

corporation, THE EAST COAST
ENDURO ASSOCIATION, INC., a
New Jersey corporation, and
DELAWARE ENDURO RIDERS, INC.,
a Delaware corporation,

\/\_/\./\./\./\./\_/\./\./\/\/V\_/\_/V\_/

Defendants.

Submitted: November 17, 2017
Decided: November 29, 2017

Motions for Summary Judgment
on the Issue of Primary Assumption of Risk

GRANTED IN PART
DENIED IN PART

OPINION

Batholomew J. Dalton, Esq., Laura J. Simon, Esq., Dalton & Associates, Larry E.
Coben, Esq. (Argued), Gregory S. Spizer, Esq., Anapol Weiss, Attorneys for
Plaintiff Scott Barth

Michael J. Logullo, Esq. (Argued), Rawle & Henderson LLP Attorney for
Defendants The East Coast Enduro Association, Inc. and Delaware Enduro Riders,
Inc.

George T. Lees III, Esq., Logan & Petrone, LLC Attorney for Defendant Blue
Diamond, LLC

JOHNSTON, J.
FACTUAL AND PROCEDURAL CONTEXT

ln this Opinion, the Court considers an apparent issue of first impression in
Delaware. The question is Whether the doctrine of primary assumption of risk
applies in certain risky or dangerous sports-related activities in the absence of an
express Waiver of liability. This is a personal injury case. The plaintiff, Scott Barth,
suffered serious injuries during an off-road dirt-bike race. Barth alleges that the
race’s course Was owned by Defendant Blue Diamond, LLC (“Blue Diamond”),
co-sponsored by Defendant Delaware Enduro Riders (“DER”), and overseen by
Defendant East Coast Enduro Association, Inc. (“ECEA”). Barth alleges that the
Defendants’ negligent and reckless failure to properly mark the race’s course caused
his injuries. Prior to the race, Barth signed a release of liability form.

DER and ECEA filed a Motion for Partial Summary Judgment as to Barth’s
allegations of recklessness, Which Blue Diamond adopted. DER and ECEA also
jointly filed a Motion for Summary Judgment, While Blue Diamond separately filed
its oWn. At the hearing on the motions, this Court denied the Motion for Partial
Summary Judgment, holding that genuine issues of material fact exist regarding
recklessness, particularly as to, among others things, “the adequacy of signage” and

“the adequacy of Warnings on the course.”l The Court declined to rule from the

 

1 October 3, 2017 Tr. of Motions, 7l:12-l6.

bench as to the Motions for Summary Judgment, instead instructing the parties to
make additional submissions limited to the issue of the doctrine of primary
assumption of risk, the central grounds for the three defendants’ motions.

DER and ECEA argue they are entitled to summary judgment for two reasons.
First, Barth signed a waiver releasing them from liability. Second, Barth assumed
the risk inherent in an off-road dirt-bike race. In its separate motion, Blue Diamond
makes the same two arguments and adds a third_Barth was a member of the Blue
Diamond Riding Club, and Blue Diamond did not owe Barth the same duty it would
owe a common law business invitee.

MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is granted only if the moving party establishes that there
are no genuine issues of material fact in dispute and judgment may be granted as a
matter of law.2 All facts are viewed in a light most favorable to the non-moving
party.3 Summary judgment may not be granted if the record indicates that a material
fact is in dispute, or if there is a need to clarify the application of law to the specific
circumstances4 When the facts permit a reasonable person to draw only one

inference, the question becomes one for decision as a matter of law.5 If the non-

 

2 super. Ct. Civ. R. 56(¢).

3 Burkhart v. Davies, 602 A.2d 56, 58-59 (Del. l99l).
4 Super. Ct. Civ. R. 56(c).

5 Wooren v, Kiger, 226 A.2d 238, 239 (Del. 1967).

3

moving party bears the burden of proof at trial, yet “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case,” then
summary judgment may be granted against that party.6

ANALYSIS

Defendants argue that they are entitled to summary judgment because Barth
signed a release of liability and, separately, because Barth assumed the risk of
participating in the race. Both of these arguments are properly analyzed within the
framework of the doctrine of primary assumption of risk.

In Delaware, “primary assumption of the risk is implicated when the plaintiff
expressly consents ‘to relieve the defendant of an obligation of conduct toward him,
and to take his chances of injury from a known risk arising from what the defendant
is to do or leave undone.”’7 When primary assumption of risk exists, “the defendant
is relieved of legal duty to the plaintiff; and being under no legal duty, he or she
cannot be charged with negligence.”8

The Waiver Form Released the Defendants from
Liabilitv for Negli,gence, not Recklessness

Defendants argue they are entitled to summary judgment under a theory of

express primary assumption of risk. Before participating in the race, Barth signed a

 

6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

7 Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1080 (Del. 2014) (quoting Fell v.
Zimath, 575 A.2d 267, 267~68 (Del. Super. 1989)).

8 ld.

release titled, “RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF
RISK AND INDEMNITY AGREEMENT.” lt states that Barth:

HEREBY RELEASES, WAIVES, DISCHARGES, AND

COVENANTS NOT TO SUE . . . racing associations, sanctioning

organizations . . . track operators, track owners . . . herein referred to as

“Releasees,” FROM ALL LIABILITY TO THE UNDERSIGNED . . .

FOR ANY AND ALL LOSS OR DAMAGE . . . ARISING OUT OF

OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE

NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

Barth asserts that the entire waiver agreement is unenforceable as an invalid
contract due to lack of consideration He further contends that even if the agreement
is enforceable, it does not release Defendants from liability for recklessness.

To be enforceable under Delaware law, releases of liability “must be crystal
clear and unequivocal” and “unambiguous, not unconscionable, and not against
public policy.”9 Barth does not (and cannot) argue that the waiver form at issue does
not meet this standard. In Lynam v. Blue Diamond LLC, this Court found a virtually

identical release form valid.]O

Barth instead argues that the form is unenforceable due to lack of

 

9 Lynam v. Blue Diamond LLC, 2016 WL 5793725, at *3 (Del. Super.).

10 See id. The release in Lynam read:
l HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . .
track owners, [and] owners and lessees of premises used to conduct the Event(s) . . .
all for the purposes herein referred to as “Releasees,” FROM ALL LIABILITY TO
ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR
ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON
ACCOUNT OF INJRY, including, but not limited to, death or damage to property,
CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR
OTHERWISE.

consideration Barth bases his argument on this Court’s finding in Devecchio v.
Delaware Enduro Riders, Inc.ll In Devecchio, this Court deemed a waiver of
liability unenforceable due to lack of consideration when the form stated that riders
agreed to inspect the course, but the defendants admitted that, under the race’s
sanctioning body’s rules, the riders were not allowed to inspect the course before the
race.'2

As in Devecchio, the release here contains an agreement that the race
participants “have or will immediately upon entering any of such RESTRICTED
AREAS, and will continuously thereafter, inspect the RESTRICTED
AREAS . . . .”13 Unlike in Devecchz'o, however, no sanctioning body’s rule barred
Defendants from performing an inspection of the course.

Instead, the rule in this case stated: “Participants are allowed to walk or

99

bicycle the course prior to the event_with the club’s permission Barth argues

that, despite this distinction, Devecchz'o should apply because Barth was never given

 

11 2004 LEXIS 444 (Del. Super.).

12 Id

13 The corresponding clause in Devecchio read:
EACH OF THE UNDERSIGNED . . . acknowledges, agrees and represents that he
has, or will immediately upon entering any of such restricted areas, and will
continuously thereafter, inspect such restricted areas and all portions thereof which
he enters and with which he come in contact, and he does further warrant that his
entry upon such restricted area or areas and his participation if any, in the event
constitutes an acknowledgment that he has inspected such restricted area and that
he finds and accepts the same as being safe and reasonably suited for the purposes
ofhisuse . . ..

permission or made aware of his responsibility to inspect the course. Notably,
however, Barth never asked for permission to inspect the course. That Barth
hypothetically may not have received permission to perform the inspection is not
dispositive. Barth cannot claim he was denied permission if he never asked for it.
Additionally, the “failure to apprise himself of, or otherwise understand the language
of a release that he is asked to sign is insufficient as a matter of law to invalidate the
release.”14 The Court finds that Barth’s own failure to perform a permissive part of
the agreement does not make the waiver invalid.

Pursuant to Lynam, however, the form exculpates the Defendants’ negligence,
not recklessness As in Lynam, the form here provides for a release of liability
caused by “THE NEGLIGENCE OF THE ‘RELEASEES’ OR OTHERWISE.” As
this Court determined in Lynam, “such [exculpatory] agreements [that expressly
exempt defendants from liability for their negligent conduct] generally are not
construed to cover the more extreme forms of negligence, described as willful,
wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”15

The Court finds that the waiver form releases the defendants from their

liability for negligence, but not for recklessness

 

14 la'. This principle also dispenses with the argument that Barth did not have sufficient time to
understand the release that he chose to sign

15 Ia'. (quoting W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483_84 (5th ed.
1984)).

lmplied Primarv ASsLllnption of` Risl<
Does Not Bar a Claim of Recklessness

It is undisputed that primary assumption of risk applies when the plaintiff
signs a valid release of liability form.16 But because Defendants argue that primary
assumption of risk exists in addition to and independent of the waiver form, the Court
must determine whether_and if so, how_to apply the defense beyond an express
written agreement to waive liability.

Delaware courts have noted, paradoxically, that “depending upon the situation
at hand, express consent may be manifested by circumstantial words or conduct.”17
The illogic of “express consent” being “manifested by circumstantial words or
conduct” can be resolved with the conclusion that Delaware recognizes an implied

primary assumption of risk doctrine.18

 

16 See Lafate v. New Caslle Ciy., 1999 WL 1241074 (Del. Super.) (analyzing whether a signed
waiver constitutes primary assumption of risk).

17 Storm v. NSL Rocklana' Place, LLC, 898 A.2d 874, 882 (Del. Super. 2005) (citing Croom v.
Pressley, 1994 WL 466013, at *5 (Del. Super. 1994)).

18 See id. at 882 n.30 (“‘Primary assumption of risk is akin to express or implied consent . . . .’
(quoting 57B Am. Jur. 2d. Negligence § 1010)). Storm also quoted the Restatement (Second) of
Torts at length to explain assumption of risk generally. Id. at 881. That passage described a
form of assumption of risk “closely related to” that acquired through “express consent” as one in

which:

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the plaintiff has entered voluntarily into some relation With the defendant which he
knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to
relieve the defendant of responsibility, and to take his own chances. Thus a
spectator entering a baseball park may be regarded as consenting that the players
may proceed with the game without taking precautions to protect him from being
hit by the ball. Again the legal result is that the defendant is relieved of his duty to
the plaintiff.

Id.; see also McCormick v. Hoda’inott, 865 A.2d 523, 529 (Del. Super. 2004) (“ln the

instant case there appears to be no evidence to support a claim that minor Plaintiff expressly

8

Case law suggests that courts should find an implied primary assumption of
risk only with respect to certain activities. Delaware cases have noted that primary
assumption of risk commonly applies to “sports-related activities that ‘involv[e]
physical skill and challenges posing significant risk of injury to participants in such
activities, and as to which the absence of such a defense would chill vigorous
participation in the sporting activity and have a deleterious effect on the nature of
the sport as a whole.”’19 Examples of such sports-related activities include:

(1) being a spectator at a sporting event such as a baseball or hockey

game or tennis match where projectiles may be launched into the

audience; (2) participating in a contact sporting event; (3) bungee

jumping or bungee bouncing; (4) operating a jet-ski, or engaging in

other noncompetitive water sports such as water-skiing, tubing, or

white-water rafting; (5) drag racing; and (6) skydiving.20

The nature of the activity is pertinent to an analysis of primary assumption of

risk. Otherwise, in the absence of a waiver of liability, the dangerousness of the

activity would be irrelevant. The case law therefore suggests that the doctrine of

 

or impliedly assumed any risk; therefore, an affirmative defense of assumption of risk based

on primary assumption of risk cannot stand.”) (emphasis added).

19 Helm, 107 A.3d at 1080 (quoting Storm, 898 A.2d at 883).

20 Storm, 898 A.2d at 883 (citations omitted). Siorm noted, however, that a “common theme” of
these activities is that they frequently involve the signing of consent forms, suggesting the Court
may have only meant to invoke them as another example of where express consent may apply. Id.
However, a “common theme” is not a “common requirement”-spectators at sporting events do
not sign releases of liability to view an event. Moreover, courts have found waiver of liability
forms enforceable in contexts dissimilar to those listed above. See, e.g., Ketler v. PFPA, LLC,
2015 WL 3540187, at *2 (Del. Super. 2015) (finding a waiver form sufficient to invoke primary
assumption of risk when the plaintiff snapped a cable on a rowing machine at the defendant’s
gym). The Storm Court would have had no occasion to comment on the nature of the activity if it
were not independently meaningful in the analysis.

9

primary assumption of risk applies to certain sports-related activities, even in the
absence of an express waiver form. However, though Delaware seems to allow for
the application of implied assumption of risk in certain sporting events, no Delaware
case has provided a framework for applying the doctrine. This precise issue appears
to be one of first impression

The California case Peart v. Ferr0,21 which this Court cited in support of its
observations on the prevalence of primary assumption of risk in dangerous sporting
events, 22 provides a means of analysis. Under the Peart framework, courts must
examine two things to determine whether an implied primary assumption of risk
exists: the nature of the activity and the relationship between the parties.23

When examining the nature of the activity, courts consider:

what conditions, conduct or risks that might be viewed as dangerous in

other contexts are so integral to or inherent in the activity itself that

imposing a duty of care would either require that an essential aspect of

the sport be abandoned, or else discourage vigorous participation

therein In such cases, defendants generally do not have a duty to

protect a plaintiff from the inherent risks of the sport, or to eliminate all

risk from the sport.24

In examining the relationship of the parties, the court bears in mind that “the

general duty of due care to avoid injury to others does not apply to coparticipants in

 

21 13 Cal. Rptr. 3d 885, 894 (Cal. App. 4 Dist. 2004).

22 See Storm, 898 A.2d at 883 (citing Peart to define the sort of sports-related activities that
typically raise the issue of primary assumption of risk).

23 Peart, 13 Cal. Rptr. 3d at 894 (citations omitted).

241d

10

sporting activities with respect to conditions and conduct that might otherwise be
viewed as dangerous but upon examination are seen to be an integral part of the sport
itself.”25

When analyzed within this framework, implied primary assumption of risk
remains distinct from secondary assumption of risk. Secondary assumption of risk
has been subsumed by Delaware’s contributory negligence statute.26 lt is therefore
no longer available as a complete defense. Secondary assumption of risk exists when
“the plaintiff’ s conduct in encountering a known risk may itself be unreasonable,
because the danger is out of proportion to the advantage which he is seeking to
obtain.”27 ln contrast, the focus for implied primary assumption of risk remains on
the nature of the activity the plaintiff has consented to participate in and the actions
of the defendants_not how the conduct of the plaintiff may have contributed to his
injuries. Commentators also have noted that implied primary assumption of risk is

distinct from secondary assumption of risk.28

 

25 Id. at 894~95.

26 Helm, 107 A.3d at 1080 (“[I]t is now accepted in Delaware that the concept of secondary
assumption of risk is completely subsumed by the principles of comparative negligence.”).

27 Fell v. Zimath, 575 A.2d 267, 268 (Del. Super. 1989).

28 See Restatement (Second) of Torts § 496A (1979) (distinguishing a description of implied
primary assumption of risk from a secondary assumption of risk, “in which the plaintiff’ s conduct
in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory
negligence”); 57B Am. Jur. 2d Negligence § 1010 (“Primary assumption of risk is akin to express
or implied consent, and relieves the defendant of any obligation to exercise care for the injured
person’s protection, including situations where an injured person, having knowledge of a hazard,
continued voluntarily to encounter it. Secondary assumption of risk is akin to contributory
negligence . . . .”).

11

The Court finds that implied primary assumption of risk is a valid affirmative
defense to negligence Because Barth signed a valid release of liability for
Defendants’ negligence, the remaining issue in this case is whether implied primary
assumption of risk is a valid affirmative defense to allegations of recklessness as
well.

Though defendants do not owe a duty to protect a plaintiff from the risks
inherent in an activity to which the doctrine of implied primary assumption of risk
applies, “defendants do have a duty not to increase the risk of harm beyond what is
inherent in the sport through intentional or reckless behavior that is completely
outside the range of the ordinary activity in the sport.”29

Here, the Court has ruled as a matter of law that a genuine issue of material
fact exists as to whether Defendants recklessly marked the course with inadequate

signage. The Court finds there is a genuine issue of material fact as to whether the

Defendants committed reckless conduct which increased the race’s risk of harm.30

 

29 Peart, 13 Cal. Rptr. 3d at 894.

30 This conclusion is in line with Delaware decisions that applied similar logic under framework
of a different name. See Farrell v. Universizy ofDelaware, 2009 WL 3309288, at *3 (Del. Super.)
(finding persuasive the New York Supreme Court’s rationale that “[a]lthough [a] rink could not
be liable for harms caused by the inherent dangers of skating or by unpreventable events, the court
considered assumption of risk inapplicable to injuries resulting from ‘the reckless actions of
another skater which the defendant, by adequate supervision, could have prevented.”’(quoting
Shorten v. Cily of White Plains, 637 N.Y.S.2d 791, 796 (N.Y. App. Div.1996)); Lafate v. New
Castle Cty., 1999 WL 1241074, at *4 (Del. Super. 1999) (denying summary judgment, in part
because “it would not be within the normal expectation of the health risk of playing basketball that
a supervising employee would place a metal bar within normal head range between two basketball
courts” in spite of an express release of liability).

12

Further, the Court holds that the doctrine of implied primary assumption of risk does
not insulate a tortfeasor from liability for intentional or reckless conduct. The
Defendants’ Motions for Summary Judgment on this issue are denied.

Barth was a Business Invitee for the Race
Despite his Blue Diamond l\/[embership

Because Barth’s primary express and implied assumption of risk bar his
claims of negligence, the Court need not reach this issue. However, for the sake of
completeness, the Court finds that because Barth paid a fee to participate in the race,
his relationship with Blue Diamond for the purposes of that event was that of a
business invitee. His membership With the Blue Diamond Riding Club had no
bearing on his participation in the race.

This fact distinguishes this case from Ketler v. PFPA, LLC, 31 upon which
Blue Diamond relies. There, the plaintiff was a member of a fitness center and was
injured while using a rowing machine. Because the fitness center was a
“private-membership based business,” the Court found the fitness center did not owe
the plaintiff the same duty it “would owe to a common law business invitee or to the
public at large.”32

ln this case, participation in the race was not restricted to members of the Blue

Diamond Riding Club. The race was open to any “American Motorcyclist

 

21 2015 WL 3540187 (Del. Super 2015).
32 Id. at *l.

13

Association Member.” Unlike the fitness center, Blue Diamond invited
non-members to the race, and therefore owed participants the duties owed to
business invitees.

CONCLUSION

The doctrine of implied primary assumption of risk does not insulate
tortfeasors from liability for intentional or reckless conduct.

DER and ECEA’s Motion for Summary Judgment is hereby GRANTED IN
PART and DENIED IN PART. The Court finds that the allegations of negligence
against these defendants are barred under the doctrine of primary assumption of risk.
There remains a genuine issue of material fact as to the allegations of recklessness
against these defendants.

Blue Diamond’s Motion for Summary Judgment is hereby GRANTED IN
PART and DENIED IN PART. The Court finds that the allegations of negligence
against this defendant are barred under the doctrine of primary assumption of risk.
There remains a genuine issue of material fact as to the allegations of recklessness
against this defendant. With the dismissal of the negligence allegations, the question

of Blue Diamond’s status as a business invitee is moot.

ITIS SO ORDERED. % §§ § § § ;

y The l-Wd.rable.¢l@faryl\/I Johnston

14

