The opinion of the court was delivered by: John T. Curtin United States District Judge
By order entered September 13, 2011 (Item 39), this matter was reassigned to the undersigned for all further proceedings.
This action was commenced on July 9, 2010, by the filing of a summons and complaint in New York State Supreme Court, Erie County, seeking money damages to compensate for personal injuries allegedly sustained by plaintiff Diane Brozyna on August 5, 2009, while riding as a passenger in a whitewater excursion jet boat owned and operated by defendant Niagara Gorge Jetboating, Ltd. The case was subsequently removed to this court pursuant to 28 U.S.C. § 1441, based upon the jurisdiction conferred by 28 U.S.C. §§ 1332 (diversity of citizenship of the parties) and 1333 (admiralty or maritime jurisdiction). See Item 1-2.
Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure to dismiss the complaint in its entirety on the ground that, as a condition to their participation in the jet boat excursion, each of the plaintiffs signed a valid release and waiver of all claims against defendant. Item 18. For the reasons that follow, defendant's motion is granted.
Defendant owns and operates a commercial jet boat excursion business on the Niagara River under the d/b/a "Whirlpool Jet." The tours depart daily from May through October from locations in Niagara Falls and Niagara-on-the-Lake, Ontario, and Lewiston, New York, with each tour returning to the location from which it departed. Whirlpool Jet operates a fleet of eight diesel driven jet boats specifically designed and built to carry passengers on whitewater excursions through the "Class-5" rapids of the lower Niagara River, including the areas known as "The Whirlpool" and "Devil's Hole." Item 22 (Kinney Decl.), at ¶¶ 2-3.
As a condition to participating in the Whirlpool Jet excursion, each customer is required to sign and initial a "Participation Agreement," containing the following provisions:
YOUR SIGNATURE ON THIS FORM INDICATES YOU ACCEPT THE CONDITIONS OUTLINED BELOW AND UNDERSTAND THE RISK INHERENT IN THIS ACTIVITY. You also acknowledge that you have read this document at your leisure and have had adequate time to decide whether to participate in this activity. THIS ACTIVITY IS NOT RECOMMENDED FOR PEOPLE SUFFERING FROM MEDICAL CONDITIONS INVOLVING THE NECK, BACK OR HEART. . . ..
I, the Undersigned, on behalf of myself, my heirs, executors, administrators and assigns, in consideration of NIAGARA GORGE JET BOATING Ltd., carrying on business as WHIRLPOOL JET (the "Company"), permitting me to participate in its activity, do hereby RELEASE and forever DISCHARGE the Company, its agents, servants and employees, successors and assigns, from all manner of actions, causes of action, suits, debts, contracts, claims and demands whatsoever, which I now have, shall or may have for or by reason of any cause, matter or thing, including negligence on the part of the Company, its agents, servants and employees. I agree not to make any claim against any person or corporation who might claim contribution or indemnity against the Company, its agents or employees.
I AM AWARE that there are risks, hazards and dangers inherent in jet boating (the "Company's Activity") including bumping and jolting of the boat. Notwithstanding such risks, hazards and dangers, I request the Company to allow me to participate in its Activity, and I hereby agree to assume all risks involved in engaging in the above Activity.
I AGREE, and am aware, that as a condition of being allowed to participate in the Company's Activity, I do warrant that I am comfortable in and around the water while wearing a life jacket and that I am in good physical health. In particular, I warrant that I have no medical condition involving my neck, back or heart. I also warrant that I am NOT pregnant.
I HEARBY [sic] ACKNOWLEGE [sic] THAT I HAVE READ THIS AGREEMENT at my leisure and understand that it is a FULL AND FINAL RELEASE and waiver of all my claims for damages or injuries sustained as a result of my participation in the Company's Activity, and that I am signing this Agreement voluntarily, knowing full well that I am releasing and forever discharging the Company and its agents, servants and employees of all liability for any losses and damages which I may sustain.
In addition, as a matter of company policy, all Whirlpool Jet customers are required to attend a safety briefing prior to boarding. The briefing is conducted by Niagara Gorge employees, and is intended to provide a detailed description of the excursion as well as an express warning of the risks associated with a jet boat ride in Class 5 whitewater rapids. Specifically, customers are cautioned about participating in the excursion if they have any health concerns regarding their neck, back, or heart. They are also instructed how to best position themselves during the course of the excursion, and are warned that they could experience rougher conditions if they elect to sit in the first three rows of the boat. Item 22, ¶ 4.
On August 5, 2009, plaintiffs Diane and Zygmont Brozyna, along with
other family members, participated in a Whirlpool Jet excursion which
embarked from the Lewiston dock. Prior to the boarding the jet boat,
each plaintiff signed the Participation Agreement and attended the
safety briefing. Upon boarding, the Brozynas sat in the first row of
the boat. During the excursion, Ms. Brozyna felt "discomfort" when the
boat "came down hard" in the rapids at Devil's Hole. Item 32-4, at 2.
The excursion leader, Erin Anderson, noticed that Ms. Brozyna was in
distress, and directed the captain to return the boat to the Lewiston
dock. Ms. Brozyna was then taken by ambulance to the emergency room at
Mount St. Mary's Hospital in Lewiston. X-rays, CT scan and MRI of the
lumbosacral spine confirmed "[a]cute compression fracture of superior
endplate" of the L-1 vertebrae, with ...