CLAIRE A. DONAHUE, Appellant and Cross-Appellee,
LEDGENDS, INC. d/b/a ALASKA ROCK GYM, Appellee and Cross-Appellant
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-07305 CI.
Christine S. Schleuss, Law Office of Christine S. Schleuss, Anchorage, for Appellant and Cross-Appellee.
Tracey L. Knutson, Girdwood, for Appellee and Cross-Appellant.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
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] 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 " 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 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 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 ...