Estate of Joseph R Kane et al v. Epley's, Inc.

Filing 44

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED as follows: 1) Defendant's Motion to Strike (Dkt. 26 ) is GRANTED IN PART AND DENIED IN PART as stated herein. 2) Defendant's Motion for Summary Judgment (Dkt. 16 ) is DENI ED. 3. The parties shall contact the Court to schedule a trial setting after a ruling on the pending Motion to Amend the Complaint is issued. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THE ESTATE OF JOSEPH R. KANE,
deceased; STACIE KANE, individually,
and as guardian of JOSEPH P. KANE;
and THOMAS KANE, individually,

Case No. 3:15-CV-00105-EJL
MEMORANDUM DECISION
AND ORDER

Plaintiffs,
v.
EPLEY’S INC., an Idaho corporation,
Defendant.

INTRODUCTION
Before the Court in the above-entitled matter are the Defendant’s Motion for
Summary Judgment and related Motion to Strike.1 The parties have filed their responsive
briefing and the matters are ripe for the Court’s consideration. The Court finds that the
facts and legal arguments are adequately presented in the briefs and record. Accordingly, in
the interest of avoiding further delay, and because the Court conclusively finds that the
decisional process would not be significantly aided by oral argument, this matter is decided
on the record without oral argument.

1

There are other motions relating to the Plaintiffs’ request to seek punitive damages that are
pending before Chief Magistrate Judge Ronald E. Bush.
MEMORANDUM DECISION AND ORDER - 1

FACTUAL AND PROCEDURAL BACKGROUND
The events giving rise to this case occurred during a four-day whitewater rafting
trip in June of 2014 on the Lower Salmon River in Idaho. Plaintiffs Joseph R. Kane and his
son Thomas Kane (aka “Mick”) made reservations to participate in the trip as part of a Boy
Scouts of America (“BSA”) sponsored group outing. (Dkt. 1.) There were eighteen
participants signed up for the trip.2 Defendant Epley’s, Inc. (“Epley’s”) was the rafting
company hired for the excursion. On the last day of the trip, June 27, 2014, the group
encountered the “Slide Rapid” which was the largest rapid of the trip. Mr. Kane and his son
were thrown from their raft while running through the Slide Rapid.3 Thomas Kane was
retrieved by another of the group’s rafts further downstream. Mr. Kane was unconscious
when he was pulled to shore downstream from the rapid by one of the Defendant’s guides,
Mike Cornforth, who began CPR.4 Mr. Kane was transported to a hospital in Lewiston,
Idaho where he was pronounced dead. As a result of these events, the Plaintiffs initiated
this action against the Defendant by filing a Complaint raising claims for wrongful death,
negligent infliction of emotional distress, and loss of consortium. (Dkt. 1.)5 Defendant

2

The Group consisted of nine adults and nine minors ranging in age from 14-17 years old. (Dkt.
17-14, Dec. Nicolazzo.)
3

A third person, Andrea Neault, was also thrown from another of the group’s rafts in the Slide
Rapid. Mrs. Neault eventually made it to shore further downstream and was able to rejoin her raft.
4

The guides employed by Defendant for the trip were Alex Estes, Mike Cornforth, Becca Sharp,
and Miles Ranck.

5

The Plaintiffs in this action are Joseph R. Kane and his estate, Stacie Kane, Mr. Kane’s wife, and
their two sons Thomas Kane and Joseph P. Kane. (Dkt. 1.)
MEMORANDUM DECISION AND ORDER - 2

then filed the instant Motion for Summary Judgment and Motion to Strike which the Court
now takes up.6
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of
Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). An issue is “material” if it affects the outcome of the litigation and may be
considered “genuine” if it is established by “sufficient evidence supporting the claimed
factual dispute…to require a jury or judge to resolve the parties’ differing versions of the
truth at trial.” Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank
v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)); see also British Motor Car Distrib. v.
San Francisco Auto. Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).

6

Plaintiffs also filed a Motion to Supplement Authority which the Court granted. (Dkt. 30, 43.)
MEMORANDUM DECISION AND ORDER - 3

The Supreme Court has made it clear that under Rule 56 summary judgment is
mandated if the non-moving party fails to make a showing sufficient to establish the
existence of an element which is essential to the non-moving party=s case and upon which
the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any
essential element, “there can be no ‘genuine issue of material fact,’ since a complete[]
failure of proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. at 323.
According to the Ninth Circuit, in order to withstand a motion for summary
judgment, a party
(1) must make a showing sufficient to establish a genuine issue of fact with
respect to any element for which it bears the burden of proof; (2) must show
that there is an issue that may reasonably be resolved in favor of either party;
and (3) must come forward with more persuasive evidence than would
otherwise be necessary when the factual context makes the non-moving
party=s claim implausible.
British Motor Car, 882 F.2d at 374 (citation omitted). When applying this standard, the
court views all of the evidence in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Hughes v. United States, 953
F.2d 531, 541 (9th Cir. 1992).

MEMORANDUM DECISION AND ORDER - 4

ANALYSIS
1.

Motion to Strike
Plaintiffs have designated two experts in this case – Jesse Sears and Paul Nicolazzo

– and disclosed their preliminary reports. Defendant moves to strike these experts’
opinions and testimony arguing they are not qualified and/or are unreliable. (Dkt. 26.)
Plaintiffs assert their experts are qualified and reliable and have attached the Second
Declaration of Mr. Nicolazzo to their response brief. (Dkt. 29-7.) Defendant asserts the
Second Declaration of Mr. Nicolazzo is untimely and improper. (Dkt. 32.)
A.

Plaintiffs’ Expert Opinions and Submissions

Defendant seeks to strike the portions of the Plaintiffs’ responsive filings to the
Motion for Summary Judgment that rely on their experts’ opinions and testimony as
inadmissible because they 1) rely on different standards than those contained in the statute
and regulations, 2) lack sufficient foundation, and 3) are not competent to offer such
testimony. (Dkt. 26, 32.) Plaintiffs maintain their experts are qualified to testify about the
industry standard, breach of duty, and related matters. (Dkt. 29.)7
The Court may consider expert opinion testimony in ruling on a summary judgment
motion so long as it contains facts that would be admissible at trial and the opinion is based
on the expert’s personal knowledge. In considering expert testimony, the Court has a
“gatekeeping responsibility” to objectively screen such testimony to ensure that it “is not
7

Plaintiffs also rely on these experts in their Motion to Amend Complaint to Seek Punitive
Damages. (Dkt. 17.) This Court makes no determination regarding the use of these experts with
regard to that Motion.
MEMORANDUM DECISION AND ORDER - 5

only relevant, but reliable.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993);
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42 (1999). This obligation “applies not
only to testimony based on ‘scientific knowledge,’ but also to testimony based on
‘technical’ and ‘other specialized’ knowledge.” United States v. Hankey, 203 F.3d 1160,
1167 (9th Cir. 2000) (quoting Kumho Tire supra). Prior to considering proffered expert
testimony, a trial court “must merely make a determination as to the proposed expert’s
qualifications” as well as the relevance and reliability of the testimony. Hopkins v. Dow
Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994). A court is not to attempt to determine
whether an expert’s conclusions are correct, but rather examine only “the soundness of his
methodology.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995)
(“Daubert II”). On a motion for summary judgment, the Court does not weigh the
persuasiveness or credibility of an expert but, instead, only determines whether there is a
genuine issue for trial.
i)

Expert Qualifications

Rule 702 requires that a testifying expert be “qualified as an expert by knowledge,
skill, experience, training, or education.” Fed. R. Evid. 702. Rule 702 “contemplates a
broad conception of expert qualifications” and is “intended to embrace more than a narrow
definition of qualified expert.” Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th
Cir. 1994); see also Fed. R. Evid. 702 advisory committee’s note (“In certain fields,
experience is the predominant, if not sole, basis for a great deal of reliable expert
testimony.”).
MEMORANDUM DECISION AND ORDER - 6

Defendant challenges the qualifications of both of Plaintiffs’ experts arguing they
lack sufficient foundation to testify on the industry standard. (Dkt. 26, 32.) Specifically,
Defendant points out that neither expert properly research the industry standard for a water
cut-off level for the Slide Rapid and argues their reliance on their own past experience and
other outfitters’ cut-off levels for the Slide Rapid is insufficient and speculative and should
be stricken as inadmissible. (Dkt. 26 at 6-8.) Plaintiffs argue their experts are qualified to
testify concerning the industry standard and whether the Defendant conformed to those
standards as they each possess the knowledge, skill, experience, training, and education to
offer their opinions concerning the industry standard in this case. (Dkt. 29 at 5-6.)
Moreover, Plaintiffs assert, their experts are acquainted with many in the industry; have
personally worked for many different groups and outfitters who regularly run the river; and
have reviewed publicly available information related to current industry standards which,
they contend, confirms their experience, knowledge, and understanding of the industry
standards they reference in their reports. (Dkt. 29 at 6.)
Having reviewed the qualifications of Plaintiffs’ experts, the Court concludes that,
for purposes of this Motion, their training, knowledge, experience, and education qualify
them to opine regarding the industry standards in this case and whether Defendant
conformed to those standards.
Jesse Sears worked as a full time commercial guide from 1997-2006. (Dkt. 17-6,
Ex. O.) Mr. Sears’ guided on the Lower Salmon River during that time and has rowed rafts
through the Slide Rapid at various water levels multiple times. From 2006-2008, Mr. Sears
MEMORANDUM DECISION AND ORDER - 7

worked at Boise State University as the Outdoor Program Coordinator and helped with
obtaining, operating, and managing an educational commercial permit on the Lower
Salmon River. Thereafter, Mr. Sears worked for two years as a United States Forest
Service River Ranger on the Middle Fork of the Salmon River. Mr. Sears’ last raft trip
down the Lower Salmon River was on October 6, 2015.
Paul Nicolazzo was a professional river guide and safety kayaker from 1981-2002
on seven rivers including the Lower Salmon River. (Dkt. 17-13, Ex. W.) During those
years, Mr. Nicolazzo also worked at three different outward bound schools and was a
wilderness medicine instructor. Currently, Mr. Nicolazzo is an annual presenter at outdoor
program design and management conferences, is the president/director of the Wilderness
Medicine Training Center, Inc., and has authored various publications regarding
wilderness medicine and outdoor programing. In particular as to this case, Mr. Nicolazzo
has lead over 20 trips on the Lower Salmon River and through the Slide Rapid at various
water levels including private, guide training, and commercial trips. (Dkt. 17-13, Ex. W.)
His most recent trip was in July of 2015.
Based on the foregoing, the Court finds both individuals to be knowledgeable and
experienced in commercial rafting on the Lower Salmon River and, in particular, with the
Slide Rapid. As such, they are qualified to testify as experts concerning the standard
practice for commercial whitewater outfitters and guides in Idaho.

MEMORANDUM DECISION AND ORDER - 8

ii)

Relevant and Reliable

In addition to being qualified, the “[e]xpert testimony [must] be both relevant and
reliable.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014)
(citations and quotations omitted). Relevancy “simply requires that the evidence...logically
advance a material aspect of the party’s case.” Id. at 463 (citation and marks omitted). Rule
702 allows admission of “scientific, technical, or other specialized knowledge” by a
qualified expert if it will “assist the trier of fact to understand the evidence or to determine
a fact in issue.” Fed. R. Evid. 702. To be admissible, evidence must also be relevant under
Rule 402 and its probative value must not be substantially outweighed by the danger of
unfair prejudice under Rule 403.
The reliability prong of Rule 702 requires that expert testimony be based on sound
principles and methodology. Reliability requires the court to assess “whether an expert’s
testimony has a ‘reliable basis in the knowledge and experience of the relevant
discipline.’” Estate of Barabin, 740 F.3d at 4683 (quoting Kumho Tire, 526 U.S. at 149
(citations and alterations omitted)). The Supreme Court has suggested several factors that
courts can use in determining reliability of scientific testimony: 1) whether a theory or
technique can be tested; 2) whether it has been subjected to peer review and publication; 3)
the known or potential error rate of the theory or technique; and 4) whether the theory or
technique enjoys general acceptance within the relevant scientific community. See
Daubert, 509 U.S. at 592–94. When considering the reliability of non-scientific testimony,
however, the “Daubert factors (peer review, publication, potential error rate, etc.) simply
MEMORANDUM DECISION AND ORDER - 9

are not applicable to this kind of testimony, whose reliability depends heavily on the
knowledge and experience of the expert, rather than the methodology or theory behind it.”
Hankey, 203 F.3d at 1169; see also Kumho Tire, 526 U.S. at 150 (“Engineering testimony
rests upon scientific foundations, the reliability of which will be at issue in some cases.... In
other cases, the relevant reliability concerns may focus upon personal knowledge or
experience.”).
Courts are afforded “broad discretion” when determining whether an expert’s
testimony is reliable. Hankey, 203 F.3d at 1167-68. In making this determination, the court
must rule not on the correctness of the expert’s conclusions but on the soundness of the
methodology, Estate of Barabin, 740 F.3d at 463 (citation omitted), and the analytical
connection between the data, the methodology, and the expert’s conclusions, Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997). See also Cooper v. Brown, 510 F.3d 870, 942 (9th
Cir. 2007) (“Rule 702 demands that expert testimony relate to scientific, technical or other
specialized knowledge, which does not include unsubstantiated speculation and subjective
beliefs.”); Fed. R. Evid. 702 advisory committee’s notes to 2000 amendments (“[T]he
testimony must be the product of reliable principles and methods that are reliably applied
to the facts of the case.”). The “proponent of the expert...has the burden of proving
admissibility.” Cooper, 510 F.3d at 942; see also Daubert II, 43 F.3d at 1316.
Here, Defendant challenges the reliability of the Plaintiffs’ experts arguing they do
not have the requisite knowledge and have not properly reviewed/researched the industry
standards applicable to this case. (Dkt. 16, 32.) Defendant further argues the Idaho Code
MEMORANDUM DECISION AND ORDER - 10

and implementing regulations sets forth the standard of care for outfitters and the testimony
of these experts is inconsistent with that standard and lacks foundation. (Dkt. 26 at 3.)
Plaintiffs argue the statutes and regulations do not establish a singular standard of care for
commercial river guides but, instead, require outfitters and guides to conform to the
standard of care expected of members of the profession in addition to satisfying the
licensing requirements. (Dkt. 29 at 8-9.) Having considered these arguments and the
record, the Court finds the testimony of Mr. Sears and Mr. Nicolazzo to be relevant and
reliable for purposes of this Motion.
Mr. Sears’ opinion is based upon his knowledge and experience from when he
worked in the industry and his review of materials related to this case. (Dkt. 17-6, Ex. N, O)
(Dkt. 21-3, Ex. C, Depo. Sears.) Defendant contends that Mr. Sears did no research on the
industry standard for the Slide Rapid. (Dkt. 26 at 5.) Although Mr. Sears testified he had
not contacted any outfitter in Riggins, Idaho with respect to the local standard of care in the
formation of his opinions for this case, in his report Sears refers to having done some
industry research stating he could not “find a current company that has a 25,000 cfs cut off
on the Lower Salmon [River].” (Dkt. 17-6, Ex. O, Sears Report.) Similarly, during his
deposition Mr. Sears refers to documents he printed off the internet from other rafting
companies showing they do not offer June trips on the Lower Salmon River. (Dkt. 21-3,
Ex. C, Depo. Sears at 140-41.) Mr. Nicolazzo’s testimony is also reliable based on his
overall knowledge and experience in outfitting and river guiding and his particular
experience rafting the Lower Salmon River.
MEMORANDUM DECISION AND ORDER - 11

The fact that both of Plaintiffs’ experts were guides on the Lower Salmon River
some time ago and whether or not they researched the industry standard in forming their
opinions are both questions that go to their credibility, which may be subject to
cross-examination at trial. The witnesses will not be allowed to testify contrary to the
statutory and regulatory licensing requirements for outfitters in Idaho. The Court finds,
however, that those licensing requirements do not set the standard of care at issue in this
case. As discussed more below, the standard of care for outfitters and guides in Idaho is the
ordinary standard of care owed by professionals to their customers. Because the Industry
standards for outfitters and guides applicable in this case is not clearly established, the
Court further finds the experts’ testimony is relevant as it provides specialized knowledge
and expertise concerning the standards applicable to whitewater outfitters that will assist
the trier of fact. Fed. R. Evid. 402, 403, and 702. The Motion to Strike is denied in this
regard.
B.

Second Declaration of Nicolazzo

On November 16, 2015, Mr. Nicolazzo prepared a written statement (i.e. expert
report) of his opinion in this case. (Dkt. 17-13, Ex. W, Nicolazzo Report.) Defendant
deposed Mr. Nicolazzo on January 6, 2016. (Dkt. 17-4, Ex. J and Dkt. 29-6, Ex. 10, Depo.
Nicolazzo.) On January 30, 2016, Plaintiffs filed the Declaration of Mr. Nicolazzo in
support of their Motion for Leave to Amend Complaint and Assert Punitive Damage
Claims. (Dkt. 17-14, Dec. Nicolazzo.) Thereafter, on March 31, 2016, Plaintiffs filed a

MEMORANDUM DECISION AND ORDER - 12

Second Declaration of Mr. Nicolazzo in response to the Defendant’s Motion to Strike.
(Dkt. 29-7, 2nd Dec. Nicolazzo.)
The Defendant challenges Mr. Nicolazzo’s Second Declaration arguing it differs
from his prior deposition testimony and improperly adds new information. (Dkt. 29 at 2.)
For purposes of this Motion for Summary Judgment, the Court agrees that the Second
Declaration contains new information regarding the foundation for Mr. Nicolazzo’s
opinions; i.e., that he reviewed particular websites, blogs, and other information that
support his opinion. (Dkt. 29-7, 2nd Dec. Nicolazzo.) Prior to his Second Declaration,
there was no indication Mr. Nicolazzo had reviewed such information in formulating his
opinion.
Mr. Nicolazzo’s written report references the Defendant’s website and the
deposition of the Defendant’s manager taken in this case with regard to the policy and
description of the Slide Rapid and flow rates but no other indication is given as to what
materials Mr. Nicolazzo relied upon or used in formulating his opinion aside from his own
experience. (Dkt. 17-13, Ex. W, Nicolazzo Report.) Mr. Nicolazzo’s first Declaration
attached to the Motion to Amend refers to other materials in the record: a promotional
brochure from the Boy Scouts of America; statements from Andrew House, Christian Li,
and David Nault; the GoPro video exhibit; water level reports; and the report of
Defendant’s expert. (Dkt. 17-14.) This first Declaration makes reference to the practice of
“most outfitters” with regard to running the Slide Rapid during June and above 20,000 cfs.
(Dkt. 17-14 at 2, ¶ 4.) The first Declaration, however, does not reveal which outfitters, if
MEMORANDUM DECISION AND ORDER - 13

any, Mr. Nicolazzo contacted or relied upon in forming his opinion. In his deposition, Mr.
Nicolazzo testified that he did not contact any of the Riggins-based outfitters who regularly
go down the Lower Salmon River but that he had spoken with Jesse Sears and Mike
Armstrong regarding his work in this case. (Dkt. 29-6, Ex. 10, Depo. Nicolazzo at 50.)8
In his Second Declaration, however, Mr. Nicolazzo now states he reviewed
particular websites, blogs, and policies from various outfitter and industry participants
relating to their policies associated with and comments about the Slide Rapid. (Dkt. 29-7,
2nd Dec. Nicolazzo at ¶ 2.) The Second Declaration does not say when Mr. Nicolazzo
reviewed these materials or expressly state whether he relied on those in formulating his
opinion. Instead, the Second Declaration states those materials “are consistent with and
bolster my opinion that this trip should not have launched at the water level present and that
defendant certainly should not have run the Slide [Rapid] at those flows with the clientele
involved.” (Dkt. 29-7, 2nd Dec. Nicolazzo at ¶ 5.)
The Second Declaration also refers to conversations from 2000 with other outfitters
on the Lower Salmon River, river managers, guides, and the Bureau of Land Management
manager regarding running the Slide Rapid over 20,000 cfs and a 2015 conversation with a
program manager for an outward bound school regarding when they schedule raft trips on
the Lower Salmon River. (Dkt. 29-7, 2nd Dec. Nicolazzo at ¶ 4.) These conversations go to
Mr. Nicolazzo’s experience and knowledge of the Slide Rapid at that time and his

8

Mike Armstrong is the Director of the Northwest Outward Bound School which runs
commercial trips down the Lower Salmon River. (Dkt. 29-6, Depo. Nicolazzo at 50.)
MEMORANDUM DECISION AND ORDER - 14

“understanding that the Slide Rapid was rarely run over 20,000 cfs” and appear to be
offered to support the conclusions in his written report. (Dkt. 29-7, 2nd Dec. Nicolazzo at
¶¶ 3, 4.) The identity of the people in these other conversations, however, is not disclosed.
The Court finds this is new information revealed for the first time in Mr.
Nicolazzo’s Second Declaration and is improper for purposes of this Motion for Summary
Judgment. Federal Rule of Civil Procedure 26(a)(2)(B) governs the disclosures of expert
testimony and what must be contained in their written reports. Specifically, the rule
requires “a complete statement of all opinions the witness will express and the basis and
reasons for them” and “the facts or data considered by the witness in forming them.” Fed.
R. Civ. P. 26(a)(2)(B)(i), (ii). Parties are required to timely supplement their expert
disclosures in accordance with Rule 26(e)(2). Fed. R. Civ. P. 26(a)(2)(E) and 26(e)(2); see
also (Dkt. 13.) In this case, disclosing additional basis and materials considered by Mr.
Nicolazzo after discovery has closed and in response to the Motion to Strike is untimely.
Furthermore, it is prejudicial to the Defendant for the Court to consider this newly
disclosed information offered to “bolster” Mr. Nicolazzo’s opinion at least for purposes of
the Motion for Summary Judgment. (Dkt. 13.) For these reasons, the Court will grant the
Motion to Strike as to the Second Declaration of Mr. Nicolazzo. This ruling is limited to
the Court’s consideration of this material in ruling on the Motion for Summary Judgment.
2.

Motion for Summary Judgment
The claims in this case derive from common law negligence, the elements of which

are: 1) a duty recognized by law requiring the defendant to conform to a certain standard of
MEMORANDUM DECISION AND ORDER - 15

conduct; 2) a breach of that duty; 3) a causal connection between the defendant’s conduct
and the plaintiff’s injury; and 4) actual loss or damage suffered by plaintiff. See Johnson v.
McPhee, 210 P.3d 563, 574 (Idaho Ct. App. 2009); Obendorf v. Terra Hug Spray Co., Inc.,
188 P.3d 834, 840 (Idaho 2008).9
Plaintiffs allege 1) Defendant had a duty of care as a licensed outfitter under Idaho
Code § 6-1206 to conform to the standard of care for outfitters, 2) Defendant’s conduct on
June 24, 2014 was wrongful and breached the standard of care, 3) Mr. Kane died as a direct
and proximate result of that conduct, and 4) Plaintiffs suffered and continue to suffer
damages as a result. (Dkt. 1.) In its Motion for Summary Judgment, Defendant argues 1) it
is statutorily immune from liability pursuant to Idaho Code § 6-1206, 2) there is no
evidence the Defendant breached its statutory duties, 3) Mr. Kane assumed the risk and/or
waived any claims against Defendant for his death, and 4) there is no evidence establishing
the Defendant’s conduct was the proximate cause of Mr. Kane’s death. (Dkt. 16.)
A.

Duty: Defining the Standard of Care

The parties dispute what the applicable standard of care is in this case. Plaintiffs
offer their expert witnesses as well as other industry materials to define the standard of
care. Defendant challenges the admissibility and reliability of those witnesses and other
materials and maintain they are statutorily immune from liability.

9

Federal courts sitting in diversity actions apply the forum state’s substantive law to negligence
actions. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78. Immunity statutes are substantive and,
therefore, Idaho’s law will be applied here. See Kohlrautz v. Oilmen Participation Corp., 441 F.3d
827, 830–33 (9th Cir. 2005).
MEMORANDUM DECISION AND ORDER - 16

“The Idaho Legislature has recognized both the value to the state’s economy and the
risky nature of outdoor recreation by enacting several different laws aimed at promoting
outdoor recreation, while also attempting to delineate and limit the circumstances under
which providers of these activities may be liable for the injuries that inevitably happen in
the outdoors.” Brent Wilson, Lee v. Sun Valley Company: Public Duty or Abdication of
Free Will and Personal Responsibility?, 41 Idaho L. Rev. 429, 431 (2005); see also Idaho
Code § 6-1201 and § 36-2101. Idaho’s Responsibilities and Liabilities of Recreational
Participants and Outfitters and Guides (“Outfitter’s Law”) delineates the legislative
purpose, respective duties, and outfitters’ liabilities in Idaho. Idaho Code § 6-1201 et seq.
Idaho Code § 6-1206 states:
(a) No licensed outfitter or guide acting in the course of his employment shall
be liable to a participant for damages or injuries to such participant unless
such damage or injury was directly or proximately caused by failure of the
outfitter or guide to comply with the duties placed on him by chapter 21, title
36, Idaho Code, or by the rules of the Idaho outfitters and guides board, or by
the duties placed on such outfitter or guide by the provisions of this chapter.10
The duties of an outfitter are specified as:
All outfitters offering professional services in this state shall provide
facilities, equipment, and services as advertised or as agreed upon between
the outfitter and the participant. All services, facilities, and equipment
provided by outfitters in this state shall conform to safety and other
requirements set forth in chapter 21, title 36, Idaho Code, and by the rules
promulgated by the Idaho outfitters and guides board created by chapter 21,
title 36, Idaho Code.
Idaho Code § 6-1203. The duties of a guide are:
10

Chapter 21, title 36 of the Idaho Code sets forth the Idaho State Department of Fish and Game’s
requirements for outfitters and guides. See Idaho Code § 36-2100 et seq.
MEMORANDUM DECISION AND ORDER - 17

Any guide providing personal services for an outfitter in this state shall
conform to the standard of care expected of members of his profession and
he shall comply with all duties and requirements placed on him by chapter
21, title 36, Idaho Code, and by the rules promulgated by the Idaho outfitters
and guides board created by chapter 21, title 36, Idaho Code.
Idaho Code § 6-1204.
It is undisputed that these provisions of the Outfitter’s Law are implicated in this
case. The Defendant is, and at all material times was, a licensed outfitter under Idaho Code
§ 6-1202(a) and § 6-1206; Defendant’s guides were licensed and employed as guides by
the Defendant; Defendant and its guides were providing professional services and acting in
the course of their employment at the time of the events in question; and Mr. Kane and
Thomas Kane were participants as defined under Idaho Code § 6-1202(c). (Dkt. 1.) Under
Idaho Code § 6-1206, the Defendant is not liable to Plaintiffs unless the claimed damage or
injury was directly or proximately caused by failure of the Defendant or Defendant’s
guides to comply with the duties placed on it as stated in the Outfitter’s Law.
For purposes of this Motion, there is no dispute that Defendant and its guides were
properly licensed in accordance with Idaho’s statutory and regulatory requirements. (Dkt.
16, 21, 25.) Thus, the Defendant is not liable for having failed to comply with the statutory
licensing regulations. The only duty alleged here arises from the statute’s language
requiring the Defendant to “conform to the standard of care expected of members of his
profession ....” Idaho Code § 6-1204. (Dkt. 16, 21, 25.)
That statutory duty of care essentially codifies Idaho’s common law duty of care
owed by professionals to their customers. Wilson, Lee v. Sun Valley Company: Public
MEMORANDUM DECISION AND ORDER - 18

Duty or Abdication of Free Will and Personal Responsibility?, 41 Idaho L. Rev. at 455.
That is to say, Defendant had a duty to exercise ordinary care to “prevent unreasonable,
foreseeable risks of harm to others.” Hanks v. Sawtelle Rentals, Inc., 984 P.2d 122, 126
(Idaho 1999) (quoting Sharp v. W.H. Moore Inc., 796 P.2d 506, 509 (Idaho 1990)). This
standard of care, or duty, applies to anyone engaging in the business of guiding. See Idaho
Code § 36–2102. For these reasons, the Court finds the Defendant had a duty to exercise
ordinary care to “prevent unreasonable, foreseeable risks of harm to others.” Hanks, 984
P.2d at 126.
A question of fact exists, however, concerning what that standard of care is in this
case; i.e. what ordinary care Epley’s, as an outfitter, owed to Plaintiffs, as its
customers/participants. The parties dispute the testimony of the expert witnesses offered to
opine regarding the standards of the profession and the use/relevance of certain public
information and industry publications to define the standard of care – in particular the
standard of care in the profession for outfitters running the Slide Rapid above 20,000 cfs.
(Dkt. 21 at 1-3) (Dkt. 25 at 2.)
Each sides’ expert witnesses offer differing opinions concerning the standard of
care applicable to the circumstances presented in this case. In his report, the Defendant’s
expert, Gary Lane, states that he used a 25,000 cfs cut-off for running commercial trips at
the Slide Rapid but that “it has long been the standard practice and is the practice today for
commercial outfitters on the Lower Salmon River to take commercial trips down the
Lower Salmon, including the Slide rapid, at flows up to and exceeding 25,000 cfs” and
MEMORANDUM DECISION AND ORDER - 19

concludes that Epley’s conformed to the standard of care expected of outfitters and guides
rafting the Lower Salmon at the Slide Rapid with this group, gear, and at water levels
higher than 20,000 cfs. (Dkt. 17-4, Ex. I at 4, 7.) Plaintiffs’ experts, on the other hand,
conclude the Defendant violated the standard of care with regard to running the Slide
Rapid above 20,000 cfs under the circumstances of this case. (Dkt. 17-6, Ex. O) (Dkt.
17-13, Ex. W.) Resolving the disputed questions presented by the experts’ testimonies
requires the weighing of evidence and credibility determinations which must be done at
trial.
Likewise, the public information and industry publications show genuine issues of
material fact exist in this case regarding the standard of care for Idaho outfitters running
commercial trips on the Lower Salmon River; particularly with regard to the Slide Rapid at
high flows.
Both sides in this case refer to the BLM’s Lower Salmon River Boater’s Guide
(“BLM Guide”) which provides maps and general descriptions of the rapids on the river.
(Dkt. 16-5, Ex. 14) (Dkt. 17-2, Ex. B.)11 With regard to the Slide Rapid, the BLM Guide
notes that at flows of 20,000 cfs and higher the rapid is a Class V-VI but it does not purport
to set the standard of care for outfitters running this rapid. (Dkt. 16-5, Ex. 14 at Map 15)
(Dkt. 17-2, Ex. B.) Plaintiffs cite to the American Whitewater Safety Code which describes
the International Scale of River Difficulty. (Dkt. 17-2, Ex. A.) Defendant points out,

11

The Court has reviewed the materials filed with the Plaintiffs’ Motion to Amend (Dkt. 17) that
were referenced in Plaintiffs’ response to the Motion for Summary Judgment (Dkt. 21).
MEMORANDUM DECISION AND ORDER - 20

however, that this document expressly states “[t]his code is not intended to serve as a
standard of care for commercial outfitters or guides.” (Dkt. 25-2, Ex. 3.)
In response to the Motion for Summary Judgment and Motion to Strike, Plaintiffs
point to several outfitter websites. Mountain River Outfitter, Riggins, Idaho. (Dkt. 21-3,
Ex. A) (describing the whitewater rating scale on its website but does not specifically limit
its commercial trips to under 20,000 cfs for the Lower Salmon River.) Northstar River
Expeditions, McCall, Idaho (“Because of the Slide, when the river is running 20,000 cfs
and higher, we do not run commercial trips on this section of the river.”); Flow Adventures,
Spokane, Washington (“Most outfitters do not run the Salmon if it is above 20,000
cfs….”); Winding Waters River Expeditions, Joseph, Oregon (“The Slide Rapid on the
Lower Salmon, which is a mild mannered nerd at low water but gets angry, tears it’s shirt
off and transforms into a fearsome beast around, say, 20,000 cfs.”); Holiday Rivers
Expeditions, Grangeville, Idaho (“Running the Lower Salmon anywhere between
2,000-20,000 CFS…can make for the perfect trip, depending on what you’re looking
for.”); Wapiti River Guides, Riggins, Idaho (discussing the importance of experience when
choosing a river guide, the difference between a dory and a raft, and the classification of
rapids). (Dkt. 29-1, Dec. Buck, Exs. 1-4, 7-8.) Plaintiff also cites blogs from “River Time
with Nature’s Apprentice” by Gary Lane, owner of Wapiti River Guides and Defendant’s
expert, discussing the Slide Rapid (“My personal level, as an outfitter [for running the

MEMORANDUM DECISION AND ORDER - 21

Slide Rapid] is now 25000 cfs” and experience, rules, and regulations for river guides and
the Slide Rapid.) (Dkt. 29-1, Dec. Buck, Exs. 5, 6.)12
While these materials do not, in and of themselves, define the standard of care, and
their admissibility and/or use at trial is not decided here, the materials do show a genuine
issue of material fact is present in this case concerning the applicable standard of care.
Based on all of the foregoing, the Court finds genuine issues of material fact exist
that preclude entering summary judgment.
B.

Breach of Duty

The parties also disagree about whether Defendant breached any duty it owed to
Plaintiffs. Plaintiffs claim the Defendant’s conduct was wrongful and otherwise breached
the standard of care in five ways:
(1)

(2)

by taking Mr. Kane and Thomas Kane through the Slide Rapid when
they knew or should have known the river’s flow was in excess of
23,500 cfs producing extreme conditions and dangerous Class V or
Class VI rapids and a significant risk to Mr. Kane and Thomas Kane
who did not know of the risk;

(3)

by not using proper techniques to rescue Mr. Kane;

(4)

12

by taking Mr. Kane and Thomas Kane down the Lower Salmon River
on June 24, 2014 knowing both individuals were inexperienced and
knowing the river flow was in excess of 23,500 cfs. (Dkt. 1 at 6);

by not having an appropriate rescue plan in place to recover ejected
riders before entering the Slide Rapid; and

In reviewing these materials, the Court has not considered the Second Declaration of Paul
Nicolazzo as discussed previously with regard to the Defendant’s Motion to Strike.
MEMORANDUM DECISION AND ORDER - 22

(5)

by not having adequate equipment to operate under the then existing
conditions on the Lower Salmon River.

(Dkt. 1 at 6-7.) Defendant disputes these allegations and maintains the Plaintiffs have
failed to present evidence of the applicable standard of care either by expert testimony or
with industry/public materials and, therefore, have failed to show a genuine issue of
material fact exists. (Dkt. 25 at 3-4.) Defendant further argues it did not breach the
applicable standard of care which is set by statute and administrative regulations all of
which, Defendant maintains, it complied with. (Dkt. 25 at 5.)
For the same reasons discussed above with regard to duty, the Court finds a genuine
issue of material fact exists as to whether Defendant breached the standard of care
applicable in this case. This case presents the classic example of a battle of experts where
both sides have presented contradicting testimony from experts concerning whether the
Defendant breached a duty of care owed to Plaintiffs. Further, the facts surrounding events
in question relevant to the breach issue are in dispute. For instance, the conditions
presented on the day in question; what the guides knew regarding the water flow level of
the Slide Rapid; whether there was a rescue plan and if that plan was followed; and any
safety procedures in place and used by the guides. The jury, as the finder of fact, must
consider all of the disputed facts, the credibility of the witnesses, and the weight the
evidence in order to determine whether Defendant breached its duty. Therefore, summary
judgment is denied on this question.

MEMORANDUM DECISION AND ORDER - 23

C.

Assumption of the Risk and Waiver of Claims

Before embarking on the whitewater trip, Mr. Kane signed a BSA Informed
Consent, Release Agreement, and Authorization (“BSA Release”) and both Mr. Kane and
Thomas Kane signed Epley’s Participant Agreement, Release, and Acknowledgement of
Risks (“Epley’s Release”).13
The BSA Release, for “high-adventure base participants” states:
I understand that participation in Scouting activities involves the risk of
personal injury, including death, due to the physical, mental, and emotional
challenges in the activities offered.
With appreciation of the dangers and risks associated with programs and
activities, on my own behalf and/or on behalf of my child, I hereby fully and
completely release and waive any and all claims for personal injury, death, or
loss that may arise against the Boy Scouts of America, the local council, the
activity coordinators, and all employees, volunteers, related parties, or other
organizations associated with any program or activity.
(Dkt. 16-3, Ex. 2.)14 Epley’s Release states:
I, hereby agree to release, indemnify, and discharge [Epley’s], on behalf of
myself, my children, my parents, my heirs, assigns, personal representative
and estate as follows:
1. I acknowledge that my participation in a guided raft trip entails known and
unanticipated risks, that could result in physical or emotional injury,
paralysis, death, or damage to myself, to property, or to third parties…I
understand that such risks simply cannot be eliminated without jeopardizing
the essential qualities of the activity.
13

14

Plaintiff Stacie Kane signed Epley’s Release on behalf of Thomas Kane. (Dkt. 16-3, Ex. 5.)

The BSA also required Mr. Kane to provide a Pre-Participation Physical. (Dkt. 16-3, Ex. 3.)
MEMORANDUM DECISION AND ORDER - 24

The risks include, among other things: whitewater rapids will be
encountered. I can be jolted, jarred, bounced, thrown and shaken about
during rides through some of these rapids…I could be “washed”
overboard…Also prolonged exposure to cold water can result in
hypothermia, and in extreme cases death and accidental drowning is also a
possibility.
Furthermore, [Epley’s employees] might be unaware of a participant’s
fitness or abilities. They might misjudge the weather or other environmental
conditions. They may give incomplete warnings or instructions, and the
equipment being used might malfunction.
2. I expressly agree and promise to accept and assume all of the risks existing
in this activity. My participation is purely voluntary, and I elect to participate
in spite of the risks.
3. I hereby voluntarily release, forever discharge, and agree to indemnify and
hold harmless [Epley’s] from any and all claims, demands, or causes of
action, which are in any way connected with my participation in this activity
or my use of [Epley’s] equipment or facilities, including any such claims
which allege negligent acts or omissions of [Epley’s].
…
By signing this document, I acknowledge that if anyone is hurt or
property is damaged during my participation in this activity, I may be
found by a court of law to have waived my right to maintain a lawsuit
against [Epley’s] on the basis of any claim from which I have released
them herein.
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.
(Dkt. 16-3, Ex. 4, 5) (emphasis in original). Defendant argues these documents limit or
eliminate its liability in this case because Mr. Kane and Thomas Kane assumed the risk
and/or waived their claims. Plaintiffs counter that these releases do not limit their claims in
light of the public duty placed on the Defendant under Idaho law. (Dkt. 21.)

MEMORANDUM DECISION AND ORDER - 25

As determined above, Idaho’s Outfitter’s Law imposes a statutory duty, i.e. a public
duty, upon Defendant to conform to the standard of care expected of members of the
profession. Because each of Plaintiffs claims in this case allege the Defendant’s conduct
violated its statutory public duty, neither written release absolves Defendant from liability
if Defendant is found to have breached that public duty. Morrison v. Northwest Nazarene
Univ., 278 P.3d 1253, 1254 (Idaho 2012) (citing Lee. Sun Valley Co., 695 P.2d 361, 363
(1984) (“Agreements exempting a party from liability for negligence will be upheld unless
the party owes to the other party a public duty created by statute or the other party is at an
obvious disadvantage in bargaining power.”); see also Jesse v. Lindsley, 233 P.3d 1, 6
(Idaho 2008).15 The outcome of each of the Plaintiffs’ tort claims is instead dependent
upon resolving the genuine issues of material fact that exist on those claims; not on the
written releases.
The Complaint raises claims for wrongful death, loss of consortium, and negligent
infliction of emotional distress. (Dkt. 1.) At trial, the Plaintiff must prove each of the
elements of each of the claims in order to prevail.
As to the wrongful death claim, Mr. Kane’s estate must prove two elements: (1) that
an actionable wrong was committed by the defendant against the decedent, and (2) that the
same actionable wrong caused the decedent’s death. Castorena v. General Elec., 238 P.3d
15

Plaintiffs do not argue they had an obvious disadvantage in bargaining power. Jesse, 233 P.3d at
6 (quoting Lee, 695 P.2d at 363 (quoting Rawlings v. Layne & Bowler Pump Co., 465 P.2d 107,
110–11 (Idaho 1970)) (“The general rule sustaining agreements exempting a party from liability
for negligence is subject to two exceptions: ‘(1) one party is at an obvious disadvantage in
bargaining power; or (2) a public duty is involved….’”).
MEMORANDUM DECISION AND ORDER - 26

209, 219 (Idaho 2010); see also Idaho Code § 5-311(1). This is a separate cause of action,
distinct from any claim the decedent could have brought for an injury prior to his death,
accruing a right of action to the representative or surviving relatives of the decedent upon
his or her death. Id. (quoting the Restatement (Second) of Torts § 899 cmt. c (1979)).
Instead, a wrongful death claim is brought by a decedent’s survivors to recover their
damages resulting from a tortious injury that caused the decedent’s death. As discussed
elsewhere in this Order, questions of fact exist on this claim that preclude summary
judgment.
The loss of consortium claims are made on behalf of Mrs. Kane, Thomas Kane, and
Joseph P. Kane.16 A claim for loss of consortium is a “wholly derivative cause of action
contingent upon a third party’s tortious injury to a spouse” as well as other third parties
such as parents and children. Conner v. Hodges, 333 P.3d 130, 138 (Idaho 2014) (citations
omitted). A loss of consortium cause of action is a separate and distinct cause of action
personal to the deprived spouse or child. Groves v. Firebird Raceway, Inc., 67 F.3d 306
(Table) (9th Cir. 1995) (citations omitted). “An award for loss of consortium is warranted
when the tortious act of the defendant causes injury to the plaintiff’s spouse [or parent],
causing the plaintiff to suffer the loss of services, aid, society, companionship, comfort,
and conjugal affection of their spouse [or parent].” Id. (citing Phillips v. Erhart, 254 P.3d 1,

16

The Complaint alleges Mrs. Kane “suffered the loss of love and affection and financial support
of her husband.” (Dkt. 1 at ¶ 4.11.) As to Thomas and Joseph P. Kane, the Complaint alleges they
each “suffered the loss of support and the love and affection of his father and the destruction of the
parent-child relationship.” (Dkt. 1 at ¶¶ 4.10, 4.12.)
MEMORANDUM DECISION AND ORDER - 27

10 (Idaho 2011); Vannoy v. Uniroyal Tire Co., 726 P.2d 648, 657 (Idaho 1985) (an award
for “loss of consortium should be supported by substantial competent evidence of the loss
of services, society, companionship, sexual relations, etc.” regarding the relationship
between a husband and wife). This claim is dependent on the injured party’s success or
failure in the underlying tort claim against the third party. Lightner v. Hardison, 239 P.3d
817, 824 (Idaho Ct. App. 2010). Again, questions of fact exist on this claim and summary
judgment is denied.
As to Thomas Kane’s claim for negligent infliction of emotional distress,
Defendant’s argue summary judgment is proper because he was not physically injured and,
therefore, cannot recover damages for pure emotional distress. (Dkt. 25 at 8.) In order to
recover damages for emotional and psychological distress as alleged in the Complaint,
Plaintiffs must prove Thomas Kane suffered some physical injury or physical
manifestations of the alleged emotional and/or psychological distress. See Carrillo v. Boise
Tire Co., Inc., 274 P.3d 1256, 1264-65 (Idaho 2012).
The Complaint alleges Thomas Kane suffered “emotional and psychological
distress from watching his father die, as well as the loss of support, love and affection of his
father and the destruction of the parent-child relationship.” (Dkt. 1 at ¶ 4.10.) The record
makes reference to facts showing that after Thomas Kane was pulled from the water he was
hypothermic and upset/concerned for his father. These allegations and references, while
minimal, give rise to a genuine issue of material fact as to whether Thomas Kane suffered
some

physical

injury

and/or

physical

MEMORANDUM DECISION AND ORDER - 28

manifestations

of

the

alleged

emotional/psychological distress. See British Motor Car Distributors, 882 F.2d at 374.
Therefore, the Motion for Summary Judgment is denied on this claim.
E.

Proximate Cause

Defendant also argues the Plaintiffs have failed to show any causal connection
between the Defendant’s conduct and the Plaintiffs’ injury and/or any actual loss or
damage allegedly suffered by Plaintiffs. (Dkt. 16, 25.) Defendant notes that no physician
has testified as to the cause of Mr. Kane’s death and the cause of death listed on the death
certificate of “drowning” is not conclusive given the circumstances and the other potential
causes of death. (Dkt. 25 at 3, 9.) Merely alleging the Defendant is liable because Mr. Kane
was thrown into the water on the trip is insufficient, Defendant asserts, to meet Plaintiffs
burden to show a causal link. Plaintiffs maintain they are not required to eliminate every
other potential cause of death and that they have shown a genuine issue of material fact
exists as to whether Mr. Kane’s death was reasonably foreseeable as a natural and probable
consequence of Defendant’s breach of the standard of care; i.e. that inexperienced and unfit
individuals could drown if thrown into Class V whitewater. (Dkt. 21 at 20.)
Plaintiffs have the burden of proving the Defendant’s breach of the applicable
standard of care was the proximate cause of the damages alleged. See Easterling v.
Kendall, 367 P.3d 1214, 1226 (Idaho 2016). “Proximate cause is composed of two
elements: cause in fact [, or “but for” cause,] and scope of legal responsibility.” Cramer v.
Slater, 204 P.3d 508, 515 (Idaho 2009) (quotations and citations omitted). “Actual cause is
the factual question of whether a particular event produced a particular consequence.” Id.
MEMORANDUM DECISION AND ORDER - 29

True proximate cause focuses on whether legal responsibility is extended to impose
liability on a party for the consequences of conduct; i.e. “whether it was reasonably
foreseeable that such harm would flow from the negligent conduct.” Id. (citations and
marks omitted). Proximate cause may be proved by direct evidence or a “chain of
circumstances from which the ultimate fact required to be established is reasonably and
naturally inferable.” Ballard v. Kerr, 378 P.3d 464, 480 (Idaho 2016) (quoting Weeks v. E.
Idaho Health Servs., 153 P.3d 1180, 1185 (Idaho 2007) (quoting Sheridan v. St. Luke's
Reg'l Med. Ctr., 25 P.3d 88, 98 (Idaho 2001)).
The Court finds there is a genuine issue of material fact on this issue arising from
various sources. The death certificate’s original determination of the cause of death as
“sudden cardiac arrhythmia” was crossed out and, in its place, lists the cause of death as
“drowning” caused by “ejection from raft into cold water.” (Dkt. 16-6, Ex. 22.) The
coroner’s report and deposition testimonies of the physician witnesses are inconclusive and
shows a clear dispute concerning the actual cause of death. (Dkt. 16-6, Ex. 21, Coroner
Report) (Dkt 16-6, Ex. 23, Depo. Hunter) (Dkt. 16-6, Ex. 24, Depo. Martin) (Dkt. 25-2, Ex.
7, Depo. Martin.) The witness statements and circumstances surrounding the events in
question, such as how long Mr. Kane was under water and whether he was conscious or
unconscious, also give rise to disputed questions of fact. Because there are genuine
disputes as to material facts on this issue, summary judgment is denied.

MEMORANDUM DECISION AND ORDER - 30

ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1)

Defendant’s Motion to Strike (Dkt. 26) is GRANTED IN PART AND
DENIED IN PART as stated herein.

2)

Defendant’s Motion for Summary Judgment (Dkt. 16) is DENIED.

3)

The parties shall contact the Court to schedule a trial setting after a ruling on
the pending Motion to Amend the Complaint is issued.

DATED: December 5, 2016

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 31