United States District Court, D. Hawaii
For Kimberly Mohler, Plaintiff: Jared A. Washkowitz, LEAD ATTORNEY, JAW Legal, Honolulu, HI; Steven H. Schultz, LEAD ATTORNEY, PRO HAC VICE, Sacramento, CA.
For Kipu Ranch Adventures, LLC, Defendant: Jonathan L. Ortiz, LEAD ATTORNEY, Ortiz & Katano, Honolulu, HI.
ORDER DENYING DEFENDANT KIPU RANCH ADVENTURES, LLC'S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS, DOC. NO. 42
J. Michael Seabright, United States District Judge.
On November 13, 2013, Plaintiff Kimberly Mohler (" Plaintiff") filed this action alleging state law claims for negligence, failure to warn, and premises liability against Defendant Kipu Ranch Adventures, LLC (" Defendant") stemming from injuries she sustained while operating an all-terrain vehicle (" ATV") during a paid scenic tour offered by Defendant at its ranch.
Currently before the court is Defendant's Motion for Summary Judgment, arguing that (1) Plaintiff's claims are barred by the Acknowledgment of Risk and Release of Liability form Plaintiff signed prior to taking the ATV tour; (2) Plaintiff's claims are barred by Hawaii's Recreational Use Statute, Hawaii Revised Statutes (" HRS") Ch. 520, which affords landowners immunity from negligence liability where the property is used for " recreational purposes; " and (3) Plaintiff's premises liability claim fails because the ATV trail did not present an unreasonable risk of harm. Based on the following, the court DENIES Defendant's Motion for Summary Judgment.
A. Factual Background
On November 15, 2011, Plaintiff traveled to Kauai with her partner Deborah Barnes (" Barnes") for a vacation. See Doc. No. 42-9, Def.'s Ex. 1, at 27. Plaintiff thought that an ATV trip " sounded interesting and fun and something different that [they] hadn't done before, " id. at 29, and as a result, on November 17, 2011, Plaintiff purchased a guided ATV tour from Defendant, who was engaged in a recreation tour business. Doc. No. 43, Def.'s Concise Statement of Fact (" CSF") ¶ ¶ 1-2.
1. Plaintiff's Release
Plaintiff arrived for the 1:30 p.m. tour between 1:00 p.m. and 1:15 p.m. Doc. No. 42-9, Def.'s Ex. 1 at 42. Plaintiff checked in, and was provided an Acknowledgment of Risk and Release of Liability form (the " Release"), id. at 43-44, which Plaintiff and Barnes both signed. Doc. No. 43, Def.'s CSF ¶ ¶ 3-4. The Release provides, in relevant part:
I hereby RELEASE AND DISCHARGE Kipu Ranch Adventures, L.L.C., their guides, agents, and employees, and William Hyde Rice, Limited, a Hawaii corporation, from any and all liability, claims, demands, or causes of action that I may have for injuries or damages arising out of my participation in four-wheel all terrain vehicles, guided routes, by Kipu Ranch Adventures, L.L.C.. I understand that this release of liability applies to any accident or occurrence of any kind which could occur as a result of using or riding on equipment or vehicles furnished by Kipu Ranch Adventures, L.L.C., whether or not Kipu Ranch Adventures, L.L.C., including it's [sic] agents and employees are negligent.
I further acknowledge that full disclosure of all inherent risks associated with this guided tour have been disclosed to me. I hereby knowingly and willingly ASSUME ALL RISKS associated with this recreational activity.
I further declare . . . that I am voluntarily assuming all risks, including but not limited to . . . my inability to properly control any equipment furnished to me. I understand and acknowledge that four-wheel all terrain vehicle [sic], or activities have inherent dangers that no amount of care, caution, instruction, or expertise can eliminate, and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF INJURY OR HARM WHILE PARTICIPATING IN THIS RECREATIONAL ACTIVITY.
I further agree that I WILL NOT SUE OR MAKE A CLAIM FOR NEGLIGENCE AGAINST KIPU RANCH ADVENTURES, LLC, OR WILLIAM HYDE RICE, LIMITED, FOR DAMAGES OR OTHER LOSSES SUSTAINED AS A RESULT OF MY PARTICIPATION IN THIS RECREATIONAL ACTIVITY. I further agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgment and costs, including attorney's fees, incurred in connection with an action for negligence brought as a result of my participation in this recreational activity.
. . .
I have read this agreement and release of liability, understand it's [sic] contents, and freely sign of my own free will.
Doc. No. 42-5, Def.'s Ex. A.
According to Plaintiff, she did not read the Release, although she signed and initialed it. Doc. No. 42-9, Def.'s Ex. 1 at 101. Plaintiff, who has a Bachelor's degree in physical education and a Master's degree in organizational development, has signed waivers of liability on previous occasions and has a general custom and practice to not read and/or read thoroughly waivers she is given. Doc. No. 43, Def.'s CSF ¶ ¶ 11, 13-14.
2. Information Provided to Plaintiff Regarding the ATV
After signing the Release, Plaintiff and Barnes proceeded to a small building where they were fitted for helmets and goggles, and then went to an outside arena for a fifteen-minute orientation. Doc. No. 42-9, Def.'s Ex. 1 at 45-47, 56. In total, there were eight customers and two guides. Id. at 46. The lead guide, Rebekah Albano (" Albano"), explained that the faster the group is able to ride their ATVs, the more scenery they would be able to see. Id. at 47. The customers were then led to their vehicles, which for Plaintiff and Barnes was a two-person Outlander Max 400 ATV. Id. at 48-49; Doc. No. 47-5, Pl.'s Ex. 3.
Plaintiff was given instructions on how to start, steer, accelerate, and brake the ATV. Doc. No. 42-9, Def.'s Ex. 1 at 50-52. Plaintiff then drove the ATV twice around the perimeter of the arena to familiarize herself with the ATV. Id. at 49-50. At the time, Plaintiff thought that driving the ATV was more ...