The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this personal injury action filed by Alysha B. Walker and her parents, Robert H. Walker and Tami E. Walker (collectively "Plaintiffs") against Young Life Saranac Village ("Defendant"), are Plaintiffs' motion for partial summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 22), and Defendant's cross-motion to amend its Answer pursuant to Fed. R. Civ. P. 15(a) (Dkt. No. 27). For the reasons set forth below, Plaintiffs' motion is granted in part and denied in part, and Defendant's cross-motion is denied.
Generally, Plaintiffs' Amended Complaint alleges that Plaintiff Alysha (a citizen of Virginia) was injured at a summer camp owned and operated by Defendant (a not-for-profit New York corporation) in Saranac, New York, when, despite representing that it would "keep [Plaintiff] safe," Defendant allowed and encouraged Plaintiff Alysha to use a water slide carelessly located and maintained at a shallow portion of the lake at approximately 10:00 p.m. on July 26, 2009, without instructing Plaintiff how to use that water slide, causing her to sustain damages in excess of $75,000. (See generally Dkt. No. 7 [Plfs.' Am. Compl.].) Based on these factual allegations, Plaintiffs' Complaint, when liberally construed, asserts the following five claims against Defendant: (1) negligence; (2) gross negligence; (3) fraud; (4) breach of warranty; and (5) negligent misrepresentation. (Id.) Familiarity with the particular nature of these claims, and the factual allegations supporting them, in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
In its Answer, Defendant asserted the following two affirmative defenses, among others:
(1) an affirmative defense of assumption of risk; and (2) an affirmative defense of waiver. (Dkt. No. 10, at ¶¶ 22, 24.)
C. Undisputed Material Facts
Unless otherwise supported by citations to the record, the following material facts have been asserted and supported by Plaintiffs in their Local Rule 7.1 Statement of Undisputed Material Facts, and either admitted or denied without a supporting record citation by Defendant in its Local Rule 7.1 Response. (Compare Dkt. No. 22, Attach. 15 [Plfs.' Rule 7.1 Statement] with Dkt. No. 27, Attach. 7 [Def.'s Rule 7.1 Response].)
Defendant operates a camp for members of Young Life at Saranac Village, New York. Young Life is a national religious not-for-profit organization. Defendant's website states, among other things, that "Young Life is committed to making an impact on the lives of kids and preparing them for the future by sharing with them the gospel of Jesus Christ. With 15 outreach camps in the United States, thousands of high school and middle school students' lives are impacted every summer at these camps."*fn1 Defendant's website also states, among other things, that, at Saranac Village, students can "[r]elax and [p]lay on the [w]aterfront," and that, "[w]ith a core background of adventure and fun [students] will get to ask the tough questions of life and begin to piece together the answers."*fn2 The camp is not open to the general public as an amusement or recreational facility.*fn3
Alysha was a YoungLife member in her home state of Virginia. Over the course of a year, during weekly meetings, she learned about the camp.*fn4 For example, her Young Life group leader in Virginia told her the "different things that [she] could do during the day [at Saranac Village]," including "water sports[,] . . . volleyball, a hot tub, [and] a slide . . . ."*fn5 During the summer of 2009, Alysha decided to attend Saranac Village with other members of her group and Young Life chaperones. Alysha was seventeen years old at the time.
Before Alysha arrived at camp, her parents gave her permission to attend the camp, and filled out the necessary paper work. Part of this paper work was a "CAMPING HEALTH, CONSENT AND RELEASE FORM" (emphasis in original). The form contained a "WAIVER AND RELEASE" provision (emphasis in original), which stated as follows:
IF I AM UNDER AGE 18, MY PARENT OR GUARDIAN, BY SIGNING BELOW, ALSO CONSENTS TO MY RELEASE AND HE OR SHE AGREES THAT THIS RELEASE SHALL BE BINDING UPON HIM OR HER AS MY PARENT OR GUARDIAN AS TO ME AND MY ESTATE, HEIRS, PERSONAL REPRESENTATIVES AND ASSIGNS. MY PARENT OR GUARDIAN ALSO PROMISES, BY SIGNING BELOW, TO DEFEND, INDEMNIFY AND HOLD YOUNG LIFE HARMLESS FROM ANY CLAIM ASSERTED BY ME AGAINST YOUNG LIFE, INCLUDING ITS TRUSTEES, EMPLOYEES AND AGENTS IF I SHOULD REPUDIATE THIS RELEASE AFTER OBTAINING ADULTHOOD.*fn6 The form also contained an "ACKNOWLEDGMENT OF INHERENT RISK" provision (emphasis in original), which was initialed by Alysha's mother, and which stated as follows:
I ACKNOWLEDGE AND UNDERSTAND THERE ARE INHERENT RISKS ASSOCIATED WITH MANY CAMP ACTIVITIES. I WILL ASSUME THE RISK ASSOCIATED THEREWITH KNOWN OR UNKNOWN TO ME AT THIS TIME. I RECOGNIZE THAT MY ATTENDANCE AT A YOUNG LIFE CAMP IS A PRIVILEGE AND AS A CONSIDERATION FOR THIS PRIVILEGE, I RELEASE YOUNG LIFE, INCLUDING ITS EMPLOYEES, AGENTS AND TRUSTEES, FROM RESPONSIBILITY FOR MY ACCIDENTAL PHYSICAL INJURY, INCLUDING DEATH OR ILLNESS, AND LOSS OF PERSONAL PROPERTY WHILE AT CAMP OR DURING YOUNG LIFE SPONSORED TRAVEL TO AND FROM CAMP. THIS RELEASE IS ALSO INTENDED TO INCLUDE ALL CLAIMS MADE BY MY FAMILY, ESTATE, HEIRS, PERSONAL REPRESENTATIVE OR ASSIGNS.*fn7 Alysha, with the other members and chaperones, traveled by bus from Virginia to Saranac Village, arriving late in the afternoon on Sunday, July 26, 2009. Upon arrival, Alysha and her group were gathered for a 30-minute meeting, during which they were told about, among other things, the activities and rules at the camp.*fn8
At that time, they were instructed on the rules relating to
the slide, including the rule "to lift [their] feet up while [they]
went down the slide . . . so [they] would . . . land kind of on their
bottom."*fn9 Then they stored their belongings in
their assigned cabins, and were given free time before dinner. During
free time that evening, Alysha and some of her friends went to the
lake, where for an hour or two they went tubing and sat on the dock
and watched other kids swim and use the water slide.*fn10
At the time, Alysha had been down a water slide only once
before, at a pool.
The water slide was first installed in the 1970s. The portion of the slide installed on land is stationary. The portion of the slide installed over the water is anchored on pedestals and is taken out of the water each winter (and reinstalled every season by camp employees or volunteers). Depending on the water level of the lake, the pedestals of the slide must be raised or lowered throughout the season. While both a waterfront manual and Department of Health written plan existed at the time which might have contained procedures regarding the water slide (among other things), no record is maintained as to when the level of the slide is changed, what the level is after the change is complete, or what the level of the slide was on July 26, 2009.*fn11
Similarly, there are no written requirements stating where the pedestals of the slide should be installed from one year to the next.*fn12 Rather, Defendant's waterfront staff or maintenance staff decide where to install the slide and when adjustments need to be made to it. Typically, it was the waterfront director who made the decision to change the elevation of the slide from time to time during the course of a season.*fn13
While watching other campers use the water slide on July 29, 2006,
Alysha saw that the bottom of the slide was in the water.*fn14
While at the time no one told Alysha that the water was
shallow where the slide ended, she saw other campers land in the
water,*fn15 and heard them complaining that the slide
hurt their bottom.*fn16 In addition, Alysha heard that
another camper was injured using the slide earlier that day (although,
at the time, Alysha did not hear how that girl was
injured).*fn17 Alysha did not use the slide during her
free time, because she was too scared to go down it.
After her free time was over, Alysha had dinner and then went with the other campers to a big auditorium where they sang songs and had a Bible lesson.*fn18 They were told they would be participating in a surprise activity and had to return to their rooms to change into clothes that they would not mind getting dirty and retrieve their flashlights.*fn19 After they did so and returned to the auditorium, they were divided into groups to participate in an obstacle course as a part of a team building activity.*fn20 At that time it was dusk or dark.*fn21 Alysha and her group left the auditorium and completed about five obstacles, working together as they were instructed to do by leaders.*fn22 Then Alysha and her group arrived at the water slide obstacle.
Alysha was the first one in her group to go down the slide. She gave her flashlight to her team leader and climbed the ladder to the top of the slide.At the top of the slide, Alysha could not see where she was going; it was totally dark and the area was surrounded by trees. A camp leader at the top of the slide had a flashlight, as did another camp leader and other campers below; but Alysha does not remember any of them directing their flashlights toward the slide.*fn23
Nor does Alysha remember seeing any lights on the dock in front of the slide, although they may have existed.*fn24 She was told by a camp leader at the top of the slide to lean back, cross her arms over her chest and keep her legs up.*fn25 As Alysha slid down the slide, she lay back flat with her arms around her chest; and she tried to lift her legs up but had difficulty doing so.*fn26 She suspects that, when she landed in the water, her feet went straight to the lakebed.*fn27 She cannot remember if her bottom landed on the lakebed.*fn28 But she knew she was hurt.*fn29 She was taken to the hospital and diagnosed with a fractured ankle.*fn30
Familiarity with the remaining undisputed (and disputed) material facts on Plaintiffs' motion is assumed in this Decision and Order, which (again) is intended primarily for the review of the parties.
D. Parties' Briefing on Plaintiffs' Motion for Partial Summary Judgment
Generally, in support of their motion for partial summary judgment, Plaintiffs assert the following two arguments: (1) the affirmative defense of waiver asserted in Defendants' Answer should be dismissed because, based on the current record, no genuine dispute of material fact exists that (a) the purpose of Defendant's youth camp is recreational in nature, rendering the defense unenforceable under N.Y. General Obligations Law § 5-326, and (b) in any event, the relevant portion of the Consent and Release Form in this case was not explicit in its terms, rendering it invalid as a matter of law; and (2) the affirmative defense of assumption of risk asserted in Defendants' Answer should be dismissed because, based on the current record, no genuine dispute of material fact exists that (a) the "Acknowledgment of Inherent Risk" provision contained in the Consent and Release Form does not mention the water slide and asks the signatory to assume "unknown" risks, rendering that provision ineffective, (b) Plaintiff Alysha was not aware of risks the water slide presented, did not appreciate the nature of the risk, and did not voluntarily assume the risk, rendering the defense unavailable, and (c) in any event, even if Plaintiff Alysha assumed the risk inherent in the activity in question, Defendant still had, but breached, a duty to exercise care to make the conditions as safe as they appeared to be. (See generally Dkt. No. 22, Attach. 16 [Plfs.' Memo. of Law].)
Generally, in response to Plaintiffs' motion for partial summary judgment, Defendant asserts the following three arguments: (1) pursuant to the correct choice-of-law analysis, Defendant's assumption-of-risk defense is governed by Virginia law (which holds that assumption of risk is an absolute defense that employs a subjective test), rendering the defense available to Defendant; (2) in any event, even if Defendant's assumption-of-risk defense were governed by New York law (which holds that assumption of risk is a partial defense that employs an objective test), the defense would be available to Defendant, in part because Plaintiffs signed a Consent and Release form, and Plaintiff Alysha observed others going down the water slide before her injury and knew she was supposed to land on her bottom, not her feet; and (3) with regard to Defendant's waiver defense, in the event the Court determines that New York law governs that defense after conducting the correct choice-of-law analysis, the Court should find that, based on the current record, a genuine dispute of material fact exists as to whether Defendant's property is a place of recreation or a place of instruction for purposes of Gen. Oblig. Law § 5-326, whether Defendant "receives a fee or other compensation for the ...