Dominguez v. Kirtland U.S. Air Force Base et al

Filing 61

Memorandum Opinion and Order by Magistrate Judge Kirtan Khalsa denying 21 Motion to Dismiss for Lack of Jurisdiction. (tkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SARAH DOMINGUEZ,
Plaintiff,
v.

Civ. No. 17-118 KK/SCY

United States of America,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant’s Motion to Dismiss Second Amended
Complaint (ECF No. 17) For Lack of Subject-Matter Jurisdiction and Memorandum in Support
filed July 19, 2017. (Doc. 21.) Plaintiff filed a Response on July 19, 2017. (Doc. 24.)
Defendant filed a Reply on August 9, 2017. (Doc. 30.) Additionally, pursuant to this Court’s
order (Doc. 38), supplemental briefing was submitted by both parties. (Doc. 44; Doc. 47; Doc.
49.)
Plaintiff Sarah Dominguez, a civilian, was injured while participating in an activity at the
Para-Rescue Academy at the Kirtland U.S. Air Force Base. (Doc. 17 ¶¶ 11, 14.) Defendant, the
United States of America, operates the Air Force base. (Doc. 17 ¶ 6.) Plaintiff filed this lawsuit
seeking damages under the Federal Tort Claims Act based on the theory that Defendant is liable
for her injuries which, she alleges, were caused by the negligence of Defendant’s employees.
(Doc. 17.) In the Motion presently before the Court, Defendant seeks dismissal of Plaintiff’s
claims for lack of subject matter jurisdiction pursuant to Federal Rule of Procedure 12(b)(1).
(Doc. 21.) The Court, having considered the parties’ submissions, the record, and the relevant
law concludes that the Motion is not well taken, and shall be denied.
I.

The Law Governing Rule 12(b)(1) Motions
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A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may come in
one of two forms—a “facial attack” or a “factual attack.” Holt v. United States, 46 F.3d 1000,
1002-03 (10th Cir. 1995). A facial attack, which challenges the sufficiency of the allegations in
the complaint, relates to the plaintiff’s obligation, under Federal Rule of Civil Procedure 8(a)(1),
to demonstrate that the court has jurisdiction over the subject matter of the case. Holt, 46 F.3d at
1002; 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1350 (3d ed.
1998). “In reviewing a facial attack, a district court must accept the allegations in the complaint
as true.” Holt, 46 F.3d at 1002. A factual attack, on the other hand, “challenges the facts upon
which subject matter jurisdiction depends.” Holt, 46 F.3d at 1003. When reviewing a factual
attack on subject matter jurisdiction, the truthfulness of the complaint's factual allegations is not
presumed, and the court may, without converting the motion to a Rule 56 motion for summary
judgment, consider affidavits and other documents to resolve disputed jurisdictional facts. Id. In
either circumstance, “it is well-settled that the complaint will be construed broadly and
liberally.” Wright & Miller, supra.
II.

The Relevant Law Governing Subject Matter Jurisdiction

The United States, as a sovereign, is immune from suit except under circumstances in which
it has unequivocally expressed its consent to be sued. United States v. Mitchell, 445 U.S. 535,
538 (1980). “A waiver of sovereign immunity cannot be implied but must be unequivocally
expressed.” Id. As such, “[i]n the absence of clear congressional consent” the court has no
jurisdiction to entertain a lawsuit against the United States. Id. “It is to presumed that a cause
lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the”
plaintiff. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation
omitted).

2 

In 28 U.S.C. Section 1346(b)(1), Congress granted district courts original jurisdiction over
civil actions on claims against the United States, for money damages . . . for . . .
personal injury . . . caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
(Emphasis added). The crux of the issue raised by Defendant’s Motion pertains to the language
of Section 1346(b)(1) that the Court has italicized.
Stated summarily, the Court is called upon to determine whether, applying New Mexico law
to the circumstances of this case, a private entity would be liable for the negligently caused
injuries alleged by Plaintiff. (Doc. 21 at 6; Doc. 24 at 4.) Defendant’s Motion is premised on a
theory that Plaintiff’s claims, if brought against a private entity in New Mexico, would be barred
by the enforcement of a signed waiver of liability; and, as such, the facts of this case preclude
this Court’s subject matter jurisdiction under 28 U.S.C. Section 1346(b)(1). Defendant’s Motion
constitutes a factual attack upon Plaintiff’s Complaint. Accordingly, the information presented
in the “background” section that follows derives from the allegations in Plaintiff’s Complaint,
and from documents and affidavits attached to the parties’ respective papers. Holt, 46 F.3d at
1003 (stating that the Court is permitted to consider affidavits and other documents in
considering a factual attack on its subject matter jurisdiction).
III.

BACKGROUND

On the day that she was injured, Plaintiff and a group of her coworkers from Sandia National
Laboratories went to the Para-Rescue Academy (the Academy) to participate in team building
exercises. (Doc. 17 ¶ 11; Doc. 21-1 ¶¶ 1-2.) One such exercise involved rappelling down an

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outdoor wall or “tower.”1 (Doc. 17 ¶ 11; Doc. 21 ¶ 3; Doc. 24 at 5.) According to Plaintiff,
climbing “was not to be part of the day’s activities.” (Doc. 24-2 ¶ 10.)
According to United States Air Force Staff Sergeant Jared Stidham, an instructor at the
outdoor rappelling tower, “[t]he tower is not open to the general public[,]” and “[b]efore a group
can use the tower, the Air Force undergoes a Risk Management process to weigh risk factors and
any mitigation, and it is approved by the 351 BATS commander.” (Doc. 21-1 ¶¶ 1, 8.) Plaintiff
avers that she “did not participate in any so-called risk management process prior to participating
in the team building activities, neither through . . . work with Sandia National Laboratories nor
through the United States Air Force.” (Doc. 24-1 ¶ 2.)
Before the climbing activity began, Sergeant Stidham gathered Plaintiff and her coworkers at
the base of the tower and handed each of them a waiver of liability. (Doc. 21-1 ¶ 3.) As he
distributed the waivers, Sergeant Stidham explained that the waiver “was a document relieving
the Air Force from responsibility for injuries and that the participants had to understand they
were taking a risk by rappelling.” (Doc. 21-1 ¶ 4.) According to Sergeant Stidham, the
participants “had plenty of time to read the form” and no one had any questions related thereto.
(Doc. 21-1 ¶  4.)

According to Plaintiff, there was “no discussion as to specific risks of

rappelling, such as falling, the safety line possibly defaulting or not working”; and she does “not
recall potential risks in general being listed or discussed.” (Doc. 24-1 ¶ 9.)    The participants
were not given the option of purchasing “special protections” such as insurance against
negligence. (Doc. 24-1 ¶ 8.) Plaintiff signed the waiver. (Doc. 21-2; Doc. 21-1 ¶ 6.)
Plaintiff informed Sergeant Stidham that she had no rappelling experience, and “no one” (it
is unclear who, other than Sergeant Stidham, was instructing or leading the activity) assessed her

1

The parties variously refer to the object that Plaintiff climbed as a “wall” and as a “tower.” (See e.g. Doc. 24 ¶¶ 2,
6; Doc. 21 ¶¶ 3, 8-10.) Accordingly, the Court infers that no distinction is implied by the different terms.

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skill level before allowing her to engage in the exercise. (Doc. 17 ¶¶ 18, 22; Doc. 24-1 ¶ 6.)
Sergeant Stidham gave the participants some training (the extent of which is not clear). (Doc.
21-1 ¶ 8; Doc. 17 ¶¶ 11-12, 18, 22.) Sergeant Stidham averred that he does not allow a
participant to rappel without taking his training and demonstrating, while still anchored to the
tower, that he or she knows how to use the rappelling device. (Doc. 21-1 ¶ 8.)   
Sergeant Stidham provided Plaintiff with his personal rappelling equipment—including a
harness and gloves, and Plaintiff and one of her co-workers were the first to rappel. (Doc. 17 ¶
11; Doc. 24-1 ¶  12.) They tested their levers by putting weight on the rope, and received
instructions related to using the lever as a stopping mechanism. (Doc. 17 ¶ 11.)    Rappelling
requires a participant to walk up several flights of stairs to the top of the tower, and if the
participant decides not to rappel, she may take the stairs back to the ground. (Doc. 21-1 ¶ 7.)
Plaintiff reached the top of the wall to begin the exercise, and “[t]he next thing [she]
remembers is lying in a bed at the Sandia Clinic.” (Doc. 17 ¶ 11.) After she fell, Plaintiff was
physically moved instead of immobilized, and Defendant’s staff did not contact emergency
personnel. (Doc. 17 ¶ 13.) Instead, after Sergeant Stidham “assessed” her, Plaintiff’s coworker
took her to Sandia Clinic from where she was taken to the hospital in an ambulance. (Doc. 24-1
¶ 13.) This lawsuit ensued.
Plaintiff’s Second Amended Complaint for Damages Under the Federal Tort Claims Act
(Doc. 17) is comprised of two counts. In Count I “Negligence,” Plaintiff claims that Defendant
failed to exercise ordinary care in regard to several aspects of the rappelling—including, among
other things, ensuring that the staff at the Academy possessed the adequate skill and competency
to lead the exercise, and ensure the safety and efficacy of the rappelling equipment provided to
Plaintiff by the Academy. (Doc. 17 ¶¶ 15-26.) She also claims that, after she fell, the Academy

5 

staff was negligent insofar as they (1) physically moved her or allowed her to be moved instead
of immobilizing her, and (2) failed to contact emergency medical personnel. (Doc. 17 ¶¶ 13, 19.)
Thus, although they are presented as a single claim, the Court construes the Complaint as
alleging two circumstances of negligent conduct—one related to the cause of her fall, and one
related to the manner in which she was treated after she had fallen. In Count II “Vicarious
Liability, Respondeat Superior, Ostensible Agency and/or Agency,” Plaintiff claims that
Defendant is liable for her injuries under the Federal Tort Claims Act, 28 U.S.C. Section 2671
and 28 U.S.C. Section 1346(b)(1). (Doc. 17 ¶¶ 1-2, 27-33.)
Defendant contends that the waiver Plaintiff signed before engaging in the rappelling activity
is a valid and enforceable agreement under New Mexico law which effectively bars Plaintiff’s
claims, and by extension, precludes this Court’s subject matter jurisdiction under 28 U.S.C.
Section 1346(b)(1). (Doc. 21 at 4-11.) Plaintiff argues that the waiver is unenforceable as a
matter of New Mexico law. (Doc. 24 at 4-11.) While the Court rejects the notion advanced by
Plaintiff that the language of the waiver, insofar as it uses the term “climbing” instead of the term
“rappelling” did not apply to the activity that led to her injury, the Court otherwise concludes
that the waiver is, as Plaintiff argues, unenforceable owing to its vagueness and public policy
implications.
IV.

Discussion
A. The Waiver

To provide context for the ensuing analysis, the language of the waiver in its entirety,
excepting the signature lines, follows.
USAF Pararescue/Combat Rescue Officer Climbing Tower
WAIVER OF LIABILITY AND HOLD HARMLESS AGREEMENT

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1. In consideration for receiving permission to participate in climbing activities
on the USAF Pararescue/Combat Rescue Officer School climbing tower, I
hereby release, waive, discharge and covenant not to sue the United States Air
Force Pararescue/Combat Rescue Officer School, its officers, and employees
(hereinafter referred to as ‘releasees’) from any and all liability, claims,
demands, actions and causes of action whatsoever arising out of or relating to
any loss, damage or injury, including death, that may be sustained by me, or to
any property belonging to me, whether caused by the negligence of the
releasees, or otherwise, while participating in the climbing (hereinafter
referred to as ‘the event’), or while in, or upon the premises where the event is
being conducted, while in transit to or from the premises, or in any place or
places connected with the event.
2. I am fully aware of risks and hazards connected with being on the premises
and participating in the event, and I am fully aware that there may be risks and
hazards unknown to me connected with being on the premises and
participating in the event, and I hereby elect to voluntarily participate in the
event, to enter upon the above named premises and engage in activities
knowing that conditions may be hazardous, or may become hazardous or
dangerous to me and my property. I voluntarily assume full responsibility for
any risks of loss, property damage or personal injury, including death, that
may be sustained by me, or any loss or damage to property owned by me, as a
result of my being a participant in the Event, whether caused by the
negligence of releasees or otherwise.
3. I further hereby agree to indemnify and save and hold harmless the releasees
and each of them, from any loss, liability, damage or costs they may incur due
to my participation in the event, whether caused by the negligence of any or
all of the releasees, or otherwise.
4. It is my express intent that this Release shall bind the members of my family
and spouse, if I am alive, or deceased, and my heirs, assigns and personal
representative, if I am deceased, and shall be deemed as a Release, Waiver,
Discharge and Covenant Not to Sue the above named releasees.
In signing this release, I acknowledge and represent that:
A. I have read the foregoing release, understand it, and sign it voluntarily as my
own free act and deed;
B. No oral representation, statements or inducements, apart from the foregoing
written agreement have been made;
C. I am at least eighteen (18) years of age and fully competent; and

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D. I execute this Release for full, adequate and complete consideration fully
intending to be bound by same.
(Doc. 21-2.)
B. The Berlangieri Case
Although the parties disagree on the question whether the waiver bars Plaintiff’s negligence
claims, they agree that analysis of this question under New Mexico law is primarily informed by
Berlangieri v. Running Elk Corporation, 76 P.3d 1098 (N.M. 2003), the leading New Mexico
case on the issue of the validity and enforceability of liability releases for recreational activities.
The Berlangieri court considered the validity and enforceability of a liability release that was
provided by a resort facility to guests who participated in various recreational activities,
including horseback riding. Id. at 1100-01. The plaintiff, who was a guest at the facility, signed
the release so that he could participate in a guided horseback trail ride. Id. at 1101.
The plaintiff was a novice rider, so a gentle easygoing horse was selected for him, and the
defendant’s staff informed him that “horseback riding entailed certain unavoidable risks of injury
due to the unpredictable nature of horses.” Id. at 1101. The plaintiff was injured when, as an
apparent result of the saddle sliding to the side—either because it had been improperly
positioned or as a consequence of equipment failure, he fell off the horse as it was running. Id. at
1102.
The plaintiff sued the facility for injuries that he sustained during the horseback trail ride,
alleging negligence and other theories of liability. Id. at 1102. When the facility prevailed on a
summary judgment motion based on a theory that the release exculpated it from a negligence
claim, the plaintiff appealed—arguing that the release was unenforceable as a matter of public
policy. Id.

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By the time the case reached the New Mexico Supreme Court, two issues were outstanding.
One issue was the extent to which New Mexico’s Equine Liability Act, which governs liability
for personal injuries and death caused by “the behavior of equine animals while engaged in any
equine activities,” affected the public policy analysis. Berlangieri, 76 P.3d at 1103, 1110. The
other was whether, and if so under what circumstances, liability releases for personal injury may
be enforced under New Mexico law. Id. at 1103, 1107. The Berlangieri court’s discussion of
the latter issue informs the Court’s analysis here.
The Berlangieri court recognized New Mexico’s “strong public policy of freedom to
contract” which requires courts to enforce contracts “unless they clearly contravene some law or
rule of public morals.” Id. at 1105 (“Great damage is done where businesses cannot count on
certainty in their legal relationships and strong reasons must support a court when it interferes in
a legal relationship voluntarily assumed by the parties.”). However, recognizing the important
public policies that are furthered by negligence law—e.g., distribution of the economic burden of
loss from the injured party to the tortfeasor, deterrence of unreasonable or immoral conduct, and
allowing injured victims compensation and satisfaction for wrongs committed against them, the
court recognized the need for “strict limits on the use of exculpatory agreements[.]” Id. at 110506. Accordingly, the court held that “liability releases for personal injury may be enforced in
[those] limited circumstances” in which the release (1) survives a strict construction analysis and,
(2) does not contravene public policy.

Id. at 1107, 1109. The strict construction and public

policy principles established in Berlangieri are discussed in greater detail, as they relate to the
facts of this case, in the ensuing analysis.
C. Analysis
1. Strict Construction

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Pursuant to Berlangieri, courts endeavoring to strictly construe a recreational release must
consider whether the language of the release is “sufficiently clear and unambiguous that it would
inform the person signing it of its meaning.” Id. at 1107. It should be “written in simple and
clear terms . . . free from legal jargon” and, while it must clearly and unambiguously express the
intent of the parties to extinguish liability, it should not be inordinately long or complicated. Id.
at 1108. Ambiguities are construed against the drafter; however, the “reality [is] that the very
same words can mean different things to different people, [therefore] context is important.” Id.
at 1107-08. Accordingly, in construing the language of a release, courts should consider “the
words surrounding the portion [of the release] being construed and the circumstances
surrounding the agreement[.]” Id. at 1108. Further, “[i]t is important that the release . . . contain
specific language informing the patron of the types of risks being assumed[.]” Id.
Plaintiff seeks to circumvent the waiver by relying on a strict construction of the term
“climbing” as distinct from the term “rappelling.” (Doc. 24 at 5-7.) Specifically, Plaintiff argues
that the waiver does not bar her claim because she was injured while “rappelling” which activity,
she claims, was not covered by the release, which applied only to “climbing.” (Id.) In support of
this argument, Plaintiff compares the Dictionary.com definitions of “climb” (meaning to ascend)
and “rappel” (a “mountaineering” term that means “the act or method of moving down a steep
incline or past an overhang by means of a double rope secured above and placed around the
body, usually under the left thigh and over the right shoulder, and paid out gradually in the
descent”). (Doc. 24 at 5.) Characterizing rappelling and climbing as “opposite activities,”
Plaintiff argues that it is “a stretch” and it would require “interpretation far outside the four
corners of the” waiver to conclude that the risks and hazards of “climbing” applied to the
rappelling activity in which she engaged. (Doc. 24 at 5.) Plaintiff’s argument is not persuasive.

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In common parlance, the term “climb” does not exclusively signify ascent. Just as one may
“climb up” one may also “climb down.” See Climb, The Oxford English Dictionary (2d ed.
1998) (defining “climb” as “[t]o raise oneself by grasping or climbing, or by the aid of hands and
feet; to mount by means of some hold or footing; to creep up; to ascend, come, or go up, a
perpendicular or steep place”; and including the phrase “to climb down” as “to descend by the
same means”); Climb, Webster’s II New Riverside University Dictionary (1994) (including
“climb,” meaning to ascend, and “climb down,” meaning to descend, within the definition of
“climb”). Thus the waiver, which referred variously to “climbing activities” on the “climbing
tower” and to “participating in the climbing,” does not reasonably imply a distinction between
climbing up the climbing tower versus climbing down the climbing tower as part of the
“climbing activities.” Although the waiver could have been written to distinguish the act of
“climbing up” the tower from the act of “rappelling” down the tower instead of referring broadly
to “climbing activities,” under the circumstances of this case, it is not reasonable to conclude that
the absence of the terms “rappelling” or “rappel” rendered the waiver so unclear and ambiguous
that Plaintiff was not informed of its meaning.
Plaintiff and her coworkers were assembled at the base of the climbing tower when the
instructor provided each of them with a waiver. (Doc. 24 ¶ 6; Doc. 21-1 ¶ 3.) It would be clear
to anyone who had seen the tower and was contemplating “participating in the climbing” that the
“climbing activities” necessarily encompassed both the ascent and the descent. See Berlangieri,
76 P.3d at 1108 (“Context is important . . . the circumstances surrounding the agreement are
relevant.”). Plaintiff’s argument to the contrary is premised on the notion that, when she signed
the waiver, Plaintiff believed that she was waiving her right to sue for any injury that she
suffered while climbing up the tower, while retaining her right to sue for any injury that she

11 

suffered going down the tower simply because the term “rappelling” did not appear in the
waiver. For the reasons already stated, the Court declines to accept this premise.
Although the Court is not persuaded by Plaintiff’s argument pertaining to the strict
construction of the term “climbing,” the waiver is, in other respects, so unclear and ambiguous,
that it does not “inform the person signing it of its meaning.”

See Berlangieri at 1107

(explaining that a strict construction analysis requires the specific language of the release to be
“sufficiently clear and unambiguous that it would inform the person signing it of its meaning”).
As noted above, the Berlangieri court held that it is important that a release “contain specific
language informing the patron of the types of risks being assumed[.]” Id. at 1108. In support of
this proposition, the Berlangieri court cited Day v. Snowmass Stables, Inc., 810 F. Supp. 289,
294-95 (D. Colo. 1993), for the proposition that a release that does “not explain the specific risks
being assumed by the person who signed it” may be held invalid. Berlangieri, 76 P.3d at 1108.
In Day, the plaintiff was injured during a horse-drawn-wagon ride—a recreational activity for
which she had signed a release exculpating Snowmass Stables, Inc., whose business included
providing wagon rides to the public, from “any liability for claims or lawsuits . . . arising out of
the activities provided by the concessioner.” Day, 810 F. Supp. at 291, 294. The plaintiff was
injured when she was thrown from a wagon, which was the culminating event in a series set in
motion by a broken neck yoke ring on a wagon that was travelling behind the one in which the
plaintiff was riding. Id. at 291. The release that the plaintiff had signed read, in part, that: “the
concessioner and the concessioner’s employees [are released] from any liability for claims or
lawsuits . . . arising out of the activities provided by the concessioner.” Id. at 294. And, the Day
court concluded, the plaintiff’s claim clearly “arose out of her participation in the stable’s
activities.” Id. at 294-95. However, relying on the principle that “when the parties adopt broad

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language in a release, it is reasonable to interpret the intended coverage to be as broad as the
risks that are obvious to experienced participants[,]” the Day court held that in the absence of
any evidence that the plaintiff had experience with horse-drawn wagons, and considering the
non-obviousness of the risk of injury resulting from the failure of a neck yoke ring, the court
concluded that the release did not shield the stables from liability for the plaintiff’s injuries. Id.
at 295. In support of this holding, the Day court contrasted the language of the at-issue release
with the language of a recreational release that was held to be valid and enforceable in Heil
Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989). Day, 810 F. Supp. at 295.
In Heil Valley Ranch, the plaintiff, an experienced horseback rider signed a “Release of
Liability” before participating in a horseback ride—a recreational activity provided by the
defendant ranch. Id. at 782-83, 785. The release provided, in relevant part, that:

UPON MY ACCEPTANCE OF HORSE AND EQUIPMENT, I
ACKNOWLEDGE THAT THE USE, HANDLING AND RIDING OF A
HORSE INVOLVES A RISK OF PHYSICAL INJURY TO ANY
INDIVIDUAL UNDERTAKING SUCH ACTIVITIES; AND THAT A
HORSE, IRRESPECTIVE OF ITS TRAINING AND USUAL PAST
BEHAVIOR AND CHARACTERISTICS, MAY ACT OR REACT
UNPREDICTABLY AT TIMES BASED UPON INSTINCT OR FRIGHT
WHICH, LIKEWISE, IS AN INHERENT RISK ASSUMED BY A
HORSEBACK RIDER. THE UNDERSIGNED EXPRESSLY ASSUMES
SUCH RISK AND WAIVES ANY CLAIM HE [or] SHE MIGHT STATE
AGAINST THE STABLES AS A RESULT OF PHYSICAL INJURY
INCURRED IN SAID ACTIVITIES. EXCEPT TO THE EXTENT SUCH
CLAIM MIGHT BE BASED UPON THE SOLE AND EXCLUSIVE
NEGLIGENCE OF THE STABLES THE UNDERSIGNED FURTHER
AGREES TO HOLD THE STABLES HARMLESS FOR PHYSICAL
INJURY TO OTHERS, OR FOR PROPERTY DAMAGE, WHICH
RESULTS FROM RIDERS USE OF STABLES HORSE IN VIOLATION
OF ANY STABLES' RULES OR THE TERMS AND CONDITIONS OF
THIS AGREEMENT.
Id. at 782. The Heil Valley Ranch plaintiff was severely injured when the horse that she was
riding reared up and fell backwards onto her. Id. at 783. In support of its holding that the release
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stood as a valid and enforceable bar against the plaintiff’s negligence and breach of warranty
claims against the ranch, the court reasoned that:
the first sentence of the release specifically addressed a risk that adequately
described the circumstances of [the plaintiff’s] injury. The record also supports
that [the plaintiff] was not a novice rider, but was instead one with some
experience. The risk that a horse could rear and injure her was reasonably
foreseeable to someone with her experience.
Id. at 785. 2
Insofar as the Berlangieri court relied on Day in establishing the principles by which the
clarity or ambiguity of recreational releases should be analyzed in New Mexico, it is reasonable
to assume that the basic principle from which the Day court’s holding derived applies here. As
such, in considering whether the waiver informed Plaintiff “of the types of risks being assumed,”
the Court examines the breadth of the language in the waiver and the obviousness to Plaintiff of
the risks associated with climbing on the USAF Pararescue/Combat Rescue Officer School
climbing tower. Berlangieri, 76 P.3d at 1108; Day, 810 F. Supp. at 295.
To that end, the Court begins by noting that the language of the waiver is exceedingly broad
and appears to cover both negligent and intentional acts. It purports to release Defendant from
any and all liability . . . arising out of or relating to any loss, damage or injury,
including death, that may be sustained by me, or to any property belonging to me,
whether caused by the negligence of the releasees, or otherwise, while
participating in the climbing . . . or while in, or upon the premises where the event
is being conducted, while in transit to or from the premises, or in any place or
places connected with the event.
Further, it requires the participant to acknowledge full awareness of “risks and hazards connected
with being on the premises and participating in the” climbing and to acknowledge awareness of

2

The Court notes that the Berlangieri Court also discussed Heil Valley Ranch—particularly the dissenting opinion
which reasoned that the release should be held unenforceable as to the plaintiff’s negligence claim on the ground
that the release did not purport to exempt the defendant’s liability for negligence because it only described the
inherent dangers of horseback riding. Berlangieri, 76 P.3d at 1108. The Berlangieri court noted this to illustrate the
importance of drafting releases as carefully as possible “to convey the intent of the agreement in terms that both
parties to the release can and do understand. Id.

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“unknown” risks and hazards connected with being on the premises and participating in the
climbing. Thus, while the waiver informs the participant that there are risks and hazards—both
known and unknown associated with the climbing event, it is devoid of specificity as to what
those risks may be.

Further, unlike the defendant in Berlangieri, who supplemented the

somewhat broad language of the release by informing its guests of “certain unavoidable risks of
injury due to the unpredictable nature of horses,” Berlangieri, 76 P.3d at 1101, Sergeant Stidham
did not inform Plaintiff and her coworkers of particular risks associated with the climbing
activity.
Plaintiff has alleged that she had no rappelling experience, and that she shared this
information with Sergeant Stidham. She has also alleged that the underlying causes of her injury
include: Defendant’s failure to ensure that its staff possessed adequate skill and competency to
lead the climbing exercise; its failure to ensure that the rappelling equipment provided to
Plaintiff was correctly connected and not defective; and that, after she fell, the Academy staff
moved her or allowed her to be moved, and failed to contact emergency medical personnel.
Following the reasoning in Heil Valley Ranch, which informed the Day analysis which, in turn,
informed the Berlangieri court’s framework, the waiver did not reasonably inform Plaintiff that
she was assuming such risks. To conclude otherwise would require the Court to believe that
Plaintiff, who had no experience rappelling, would infer from the release that among the
“acknowledged” and “unknown” risks and hazards she was assuming were: the risk that
unskilled and incompetent instructors would give her inadequate training; would provide her
with faulty or incorrectly attached climbing equipment; and in the event of her injury, they would
fail to take reasonable precautions—such as leaving her in place and summoning emergency
personnel. The Court cannot accept this unreasonable proposition. Instead, the Court concludes

15 

that here, as in Day, owing to the breadth of the waiver combined with the non-obviousness of
the risks, the waiver did not clearly and unambiguously inform Plaintiff of the risks being
assumed. See Berlangieri, 76 P.3d at 1107 (stating that ambiguities are construed against the
party who drafted the release).
Because the waiver did not adequately inform Plaintiff of the risks that she was assuming, it
is invalid and unenforceable as a bar to Plaintiff’s negligence claims. See id. at 1107-08 (stating
that to pass a strict construction analysis, a recreational release must be “sufficiently clear and
unambiguous that it would inform the person signing it of its meaning”; and “[i]t is important
that the release . . . contain specific language informing the patron of the types of risks being
assumed”). On this basis alone, the Court would deny Defendant’s Motion. However, the Court
continues its discussion to highlight additional problems with the enforceability of the release
here.
2. Public Policy
A recreational release that passes a strict construction analysis may nevertheless be
unenforceable on public policy grounds. Berlangieri, 76 P.3d at 1109-1113 (concluding that the
language of the at-issue release was “sufficiently clear” but holding that the release should not be
enforced on public policy grounds); see also Hanks v. Powder Ridge Rest. Corp., 885 A.2d 734,
739-40, 747 (Conn. 2005) (holding that a liability waiver pertaining to snowtubing was
sufficiently clear and unambiguous, but was unenforceable on public policy grounds). The
Court’s analysis of the public policy issue is guided by the non-exclusive six factors set forth by
the Supreme Court of California in Tunkl v. Regents of University of California, 383 P.2d 441,
445-46 (Cal. 1963). Berlangieri, 76 P.3d at 1109. The Tunkl factors, which characterize an
“attempted but invalid” release, are, as enumerated in Berlangieri, the following:

16 

[1] [the release] concerns a business of a type generally thought suitable for
public regulation. [2] The party seeking exculpation is engaged in performing a
service of great importance to the public, which is often a matter of practical
necessity for some members of the public. [3] The party holds himself [or herself]
out as willing to perform this service for any member of the public who seeks it,
or at least for any member coming within certain established standards. [4] As a
result of the essential nature of the service, in the economic setting of the
transaction, the party invoking exculpation possesses a decisive advantage of
bargaining strength against any member of the public who seeks his [or her]
services. [5] In exercising a superior bargaining power the party confronts the
public with a standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence. [6] Finally, as a result of the transaction, the person
or property of the purchaser is placed under the control of the seller, subject to the
risk of carelessness by the seller or his [or her] agents.
Berlangieri, 76 P.3d at 1109–10. The Tunkl factors do not comprise a “balancing test”; and not
every factor will apply to the at-issue release. Berlangieri, 76 P.3d at 1110. Rather, they “are
only indicators . . . helpful in determining the larger question of whether enforcement of the
release would be unjust.” Id. As such, it is possible that the application of just one factor would
be applicable, but it “would be significant enough to make the release unenforceable.” Id.; see
Tunkl, 383 P.2d at 445 (stating that an exculpatory agreement that inheres “some or all” of these
qualities is invalid).
1. Tunkl factors 1, 2, and 4, as enumerated above, do not apply here.3
The issue presented to the Court is the validity and enforceability of the waiver that Plaintiff
signed before engaging in a recreational climbing activity. The parties do not cite, and the Court

3

Plaintiff argues that the first two Tunkl factors apply here because (1) the physical construction of the Academy
was, and its operation as a pararescue and combat rescue training school is, subject to federal regulations and
executive orders, and (2) “pararescue and combat rescue training” are “necessary for members of the public.” (Doc.
24 at 9-10.) These arguments are presented without citations to authority, and are generally unpersuasive. Even
assuming that the construction of the building was, and the operation of the Academy as an officer training school is,
governed by regulations, the issue before the Court is whether the provision of recreational climbing services is
generally suitable for public regulation. Plaintiff does not argue or present authority to support the notion that
recreational climbing and rappelling satisfy this criterion. Further, the Court need not, and does not, consider the
validity of the proposition that pararescue and combat rescue training is “necessary for members of the public.” The
waiver did not apply to, and Plaintiff did not engage in, such training. Plaintiff’s argument in regard to the fourth
Tunkl factor, that the waiver was presented as a “no-bargain, take-it or leave-it opportunity” applies to, and is
considered in the Court’s analysis of, the fifth Tunkl factor.

17 

is not aware of, any authority for the proposition that, under New Mexico or federal law,
recreational climbing or rappelling are subject to “special regulatory treatment” such that the first
Tunkl factor would apply to the waiver. See Tunkl, 383 P.2d at 445 n.9 (stating that the public
regulation factor applies where a contract modifies “the responsibilities normally attaching to a
relationship which has been regarded in other connections as a fit subject for special regulatory
treatment”); see Lynch v. Santa Fe Nat’l Bank, 627 P.2d 1247, 1252 (N.M. 1981) (distinguishing
a bank’s performance of “banking function[s]” which are subject to “extensive statutory
regulations” and which are “an important and necessary public service” from an escrow service
provided by a bank, a service that was not subject to extensive regulations, to conclude that the
latter does not satisfy the first Tunkl factor).
The second and fourth Tunkl factors are interrelated. These factors pertain to circumstances
in which a release pertaining to a service of “great importance” or “practical necessity”4 gives
the releasor a “decisive advantage of bargaining strength” over the releasee. Berlangieri, 76
P.3d at 1109. In New Mexico, and elsewhere, these factors have been held not to apply to
recreational releases. See id. at 1113 (reasoning that “recreational horseback riding has not been
shown to be a service of ‘practical necessity’ such as a utility service” such that the second Tunkl
factor would apply; and observing that the second Tunkl factor relates to the “superior bargaining
power” that is “more likely to exist when the service is of practical necessity to the public”);
Jones v. Dressel, 623 P.2d 370, 372, 377-78 (Colo. 1981) (linking the second and fourth Tunkl
factors in an analysis of a recreational release pertaining to skydiving, and concluding that
because the defendant was not providing an “essential service,” the plaintiff was not subjected to
the defendant’s “decisive advantage of bargaining” in waiving his right to sue and exempting the

4

 See Tunkl, 383 P.2d at 445 n.10 (indicating that places of public accommodation such as retail stores, restaurants,
and businesses who have a duty to serve all comers “in the manner of innkeepers and common carriers of old” are
providing services of public necessity).  

18 

defendant from liability); see Dalury v. S-K-I, Ltd, 670 A.2d 795, 799 (Vt. 1995) (“Whether or
not defendants provide an essential public service does not resolve the public policy question in
the recreational sports context.”).
2. Tunkl Factors 3, 5, and 6
a.

The Third Tunkl Factor

The third Tunkl factor weighs against enforcing a release where the defendant holds itself
“out as willing to perform [the at-issue] service for any member of the public who seeks it, or at
least for any member coming within certain established standards[.]” Berlangieri, 76 P. 3d at
1109. This factor was designed to recognize a distinction between sellers who have a “duty to
serve” all members of the public who seek their services (and who are generally prohibited from
enforcing liability waivers), from sellers whose specialized services are limited to persons and
entities within that specialization. See Tunkl, 383 P.2d at 445 n.12; Appalachian Ins. Co. v.
McDonnell Douglas Corp., 262 Cal. Rptr. 716, 719, 733 (Cal. Ct. App. 4th 1989) (rejecting an
argument that the third Tunkl factor applied in favor of an exculpatory clause in a contract for the
sale of a product (a rocket) that had never been sold to a member of the general public, and had
only been sold to large, sophisticated commercial and governmental entities); Am. Structural
Composites, Inc. v. Int’l Conference of Bldg. Officials, 325 F. Supp. 2d 1148, 1151 (D. Nev.
2004) (recognizing that the third Tunkl factor does not apply to liability waivers in favor of
companies whose services are not available to the general public, and are used only by select
private companies or specialized commercial entities); see also Levin v. Airgas Sw., Inc., No.
Civ. 05-629 JB/WDS, 2006 WL 1305040, at *16 (D. N.M. 2006) (unpublished) (concluding that
the third Tunkl factor favored upholding a liability release pertaining to a company whose

19 

product (liquid nitrogen) was available for sale only to licensed medical doctors, ambulance
companies, and persons with valid prescriptions, but not to the general public).  
Defendant argues that the third Tunkl factor weighs in favor of enforcing the release because
the Academy is not open to the general public and permission to engage in the climbing activities
is granted pursuant to an “internal Risk Management Process[,]” subject to the approval of the
“Air Force 351 BATS commander.” (Doc. 21 at 10; Doc. 21-1 ¶ 8.) Defendant argues further
that, “even after approval, a participant is not permitted to rappel without participating in training
and demonstrating, while still anchored to the tower, that he or she knows how to use the
rappelling device.” (Id.) The Court concludes on the information presented, that the third Tunkl
factor neither weighs in favor of, nor against enforcing the waiver in this case.
Defendant’s mere allusion to an internal risk management process, a process that was
undertaken without Plaintiff’s knowledge or involvement, is unavailing. As demonstrated by the
fact of her participation in the climbing activity, Plaintiff satisfied the “established standards”
(whatever they may be) pursuant to which non-military members are offered the opportunity to
engage in climbing activities at the Academy. Furthermore, the facts presently before the Court
do not support the notion that the activity was offered only to a select group of specialized or
specially licensed individuals. To that end, the Court notes that Plaintiff was a novice climber
and, insofar as the Court is aware, neither she nor any of her coworkers were members of the
armed forces. Although they were granted access to the Academy, there is no evidence that the
same access would not have been granted to any member of the general public who satisfied
unknown standards applied to Plaintiff and her coworkers as part of Defendant’s internal risk
management process. Indeed, Sergeant Stidham’s affidavit suggests that the tower is open for

20 

“group” use subject only to the risk management process and the commander’s approval. (Doc.
21-1 ¶ 8.)
That Plaintiff and her coworkers were offered some contemporaneous, on-site “training”
and were required to demonstrate that they knew how to use the rappelling equipment before
participating in the climbing does not alter the Court’s analysis. See Berlangieri, 76 P.3d at 1112
(holding that the third Tunkl factor weighed in favor of invalidating the release because the lodge
was “open to the public” and it did “not require its patrons to meet criteria such as being
experienced horseback riders before they may purchase[its] services”); cf. Hanks, 885 A.2d at
744 (reasoning that the fact that the defendant offered its snowtubing services to the public
generally subject to the “minimal restriction that only persons at least six years old or forty-four
inches tall are eligible to participate” weighed in favor of invalidating a recreational release).
On the other hand, the Court notes that the Academy is located on a military base to which
access generally is restricted, except under certain circumstances, from the general public.
Furthermore, nothing in the record suggests that the Academy holds itself out publically as a
provider of recreational services—climbing or otherwise. In these respects, the Academy is not
reasonably comparable to entities, such as the resort in Berlangieri, that are in the business of
providing recreational opportunities to paying guests. These considerations lead the Court to
conclude that applying the third Tunkl factor under the circumstances of this case is tenuous, at
best. As such, this factor weighs neutrally in the Court’s public policy analysis.
The Fifth Tunkl Factor
The fifth Tunkl factor weighs in favor of invalidating a recreational release where the service
provider exercises superior bargaining power and does not provide the participant with the
opportunity to pay additional reasonable fees to obtain protection against negligence.

21 

Berlangieri, 76 P. 3d at 1109. The Court notes that in Berlangieri, the New Mexico Supreme
Court did not clearly distinguish the concept of a “decisive advantage of bargaining strength” (an
element of the fourth Tunkl factor) from the concept of “superior bargaining power” (an element
of the fifth Tunkl factor). Thus, as noted earlier in this Opinion, the Berlangieri court reasoned
that “superior bargaining power is more likely to exist when a service is of practical necessity to
the public” and, because recreational horseback riding is not a service of “practical necessity,”
the defendant in that case was held not to have possessed superior bargaining power. Id. at 1113.
Relying on Berlangieri for the proposition that recreational activities are not matters of
practical necessity, Defendant argues that the fifth Tunkl factor “clearly weigh[s] in favor of
enforcing the release.” (Doc. 21 at 9.) The Court is not so persuaded. Considering the
Berlangieri Court’s association of “superior bargaining power” with the concept of a service of
“practical necessity” the Court infers that the Berlangieri court’s discussion of the “superior
bargaining power” of a releasee applied to the fourth, not to the fifth, Tunkl factor.5 This
inference is supported, not only by the context of the Berlangieri court’s discussion, but also by
the fact that, among that court’s stated reasons for invalidating the release was the fact that the
plaintiff was not offered the opportunity to purchase additional protection for negligence. See id.
1112 (noting the fact that “Running Elk . . . did not offer a way for Berlangieri to expand his
protection by purchasing additional coverage for injuries caused by Running Elk employees” in
support of the holding that most of the Tunkl factors weighed in favor of invalidating the
release). Insofar as the latter consideration is integral to the fifth Tunkl factor, Berlangieri does
not support the notion that the fifth Tunkl factor weighs in favor of enforcing the waiver.

5

As discussed earlier, the fourth Tunkl factor applies where the releasee possesses a “decisive advantage of
bargaining strength” based on its provision of an “essential” service such as a utility or other service of practical
necessity.

22 

Even assuming that Berlangieri should be construed as holding that the aspect of the fifth
Tunkl factor pertaining to the relative bargaining strength of the parties did not apply in the
context of the recreational release at issue in that case, the Court does not construe that holding
to imply that superior bargaining power could never exist in the context of a recreational release.
In support of its reasoning in regard to superior bargaining power, the Berlangieri court relied on
Milligan v. Big Valley Corporation, in which the Supreme Court of Wyoming considered the
enforceability of a recreational release pertaining to an ironman decathalon. Milligan, 754 P.2d
1063, 1064-67 (Wyo. 1988); Berlangieri, 76 P.3d at 1113. The Milligan court concluded that the
appellant’s husband, “an experienced expert skier and a certified ski instructor at the Jackson
Hole ski area,” who died as a result of his participation in the downhill skiing portion of the
decathlon, was not subject to a “severe disparity of bargaining power” when he signed the
release.

Id. at 1066-67. Among other considerations, the Milligan court’s conclusion in this

regard was supported by the absence of evidence that the decedent was unfairly pressured into
signing the release or that he was deprived of an opportunity to understand its implications.6 Id.
at 1067. Thus Milligan implied, if not held, that the subjective perceptions of a participant who
is presented with a recreational release may be considered in context of relative bargaining
power factor. While the Milligan court merely raised this consideration, other courts have
brought it to the fore.
After Berlangieri was decided, the Supreme Court of Connecticut decided Hanks, which, as
noted earlier centered upon the enforceability of a release pertaining to recreational snowtubing.

6
 The Milligan court’s reasoning in this regard also included the observation that skiing in the race was not
a matter of practical necessity for the public because the race was not an essential service—like a public utility,
common carrier, hospital or employer. 754 P.2d at 1066-67. The Berlangieri court, which focused on the “practical
necessity” aspect of the Milligan court’s reasoning, did not address the Milligan court’s discussion of the decedent’s
subjective experience—i.e., whether he was “pressured” or whether he understood the implications of signing the
release. Berlangieri, 76 P.3d 1098 at 1113.

23 

Hanks, 885 A.2d at 739-40. The Hanks court directly addressed—and ultimately rejected the
notion that there can never be a disparity of bargaining power in the context of voluntary or
elective services.

Hanks, 885 A.2d at 746.

The plaintiff in Hanks had travelled to the

recreational facility in anticipation of snowtubing. Id. Upon arrival, he was faced with the
dilemma of either signing the defendant’s proffered liability waiver—which was presented on a
take-it-or-leave it basis with no opportunity to purchase additional protection against negligence,
or foregoing the opportunity to engage in the activity. Id. While the Hanks court acknowledged
that snowtubing is a voluntary activity as opposed to a service of public necessity, the court also
reasoned that under the aforementioned circumstances, “it would ignore reality to conclude that
the plaintiff wielded the same bargaining power as the defendants.” Id. Thus, the Hanks court
recognized that even in the context of non-essential services, a service provider who presents a
prospective participant with the limited options of signing a non-negotiable release or being
excluded from the recreational opportunity enjoys a superior bargaining position.
Later, in considering the enforceability of a recreational release pertaining to horseback
riding, the Supreme Court of Connecticut adhered to, and expanded upon this reasoning. See
Reardon v. Windswept Farm, LLC, 905 A.2d 1156, 1158-60, 1162 (Conn. 2006). In Reardon,
the Connecticut Supreme Court declined to enforce a recreational release on the ground, among
others, that like the snowtubing patron in Hanks, the plaintiff, who sought to participate in
recreational horseback riding “had nearly zero bargaining power with respect to the negotiation
of [a liability] release.” Reardon, 905 A.2d 1162. The court explained that the release was
presented on a take it or leave it basis to the plaintiff—a patron who “lacked the knowledge,
experience, and authority to discern whether, much less ensure that, the defendants’ facilities or
equipment were maintained in a reasonably safe condition.” Id. at 1161 (citing Hanks, 885 A.2d

24 

at 734 (alterations omitted)). Thus, in order to participate in the activity, the plaintiff was
required to assume the risk of the defendant’s negligence—including negligent conduct that she
was not in a position to foresee or control. Id. at 1161-62. The court concluded that it was
“illogical to relieve the defendants, as the parties with the greater expertise and information
concerning the dangers associated with . . . horseback riding at their facility, from potential
claims of negligence surrounding an alleged failure to administer [the activity] properly[.]” Id. at
1162.
Returning to the facts of this case, and incorporating the reasoning of Milligan, Hanks, and
Reardon, the Court concludes that the issue of superior bargaining power is appropriately
informed by these practical and subjective considerations. Plaintiff was present at the Academy
because she had chosen to participate in team building activities with her coworkers. She did not
expect the day’s activities to include climbing. Once she was at the Academy, surrounded by her
coworkers, Plaintiff was presented with the option of signing the waiver or altogether foregoing
participation in the team building activity. As a novice climber, Plaintiff lacked the experience
and knowledge to discern whether the instruction that she received or the equipment with which
she was provided comported with basic safety standards. And, as discussed earlier in this
opinion, neither the waiver, nor the instructor, alerted her to specific dangers associated with the
climbing activity.

Under these circumstances, the Court cannot reasonably conclude that

Plaintiff and Defendant possessed equal bargaining power.7 This, combined with the fact that

7
 Considering that the Berlangieri court neither addressed the broader considerations outlined in Hanks and
Reardon nor expressly rejected the notion that superior bargaining power may be found in the context of a
recreational release, the Court’s conclusion does not contravene New Mexico law. To the contrary, these
circumstances are broadly analogous circumstances in which the New Mexico Supreme Court recently recognized
the existence of superior bargaining power in the context of a procedural unconscionability analysis. See e.g. State
ex rel. King v. B&B Inv. Group, Inc., 329 P.3d 658, 662, 665, 668-69 (N.M. 2014) (holding that payday lenders
possessed superior bargaining strength over loan consumers who were financially unsophisticated and “lacked
knowledge, ability, experience or capacity in credit consumption” and who presented borrowers with the choice of
either accepting the non-negotiable terms of the contract or walking away from the loan). The Court does not

25 

Plaintiff was not given the opportunity to purchase additional protection against negligence,
leads the Court to conclude that the fifth Tunkl factor weighs against enforcing the waiver. See
Berlangieri, 76 P.3d at 1112 (indicating that in the absence of an option to purchase additional
coverage to protect against negligence weighs against enforcing a recreational release).
b. The Sixth Tunkl Factor
The sixth Tunkl factor weighs in favor of invalidating a release where, as a result of the
transaction, “the person or property of the purchaser is placed under the control of the seller,
subject to the risk of carelessness by the seller or [its] agents.” Berlangieri, 76 P.3d at 1109-10.
The Berlangieri court held that the sixth Tunkl factor weighed against enforcing the recreational
release at issue in that case. Berlangieri, 76 P.3d at 1113.

In support of its holding, the court

reasoned that plaintiff, who was a novice horseback rider, “could not independently verify that
his saddle was mounted properly.” Id. As such, the court held, he was clearly subject to the risk
of carelessness by the defendant’s] employees. Id. at 1112-13.
Defendant does not address this aspect of Berlangieri’s holding. (See Doc. 21 at 10-11; Doc.
44 at 5; Doc. 49.) Instead, Defendant cites Lynch, in which the New Mexico Court of Appeals
recognized the general proposition that “[e]xculpatory clauses in contracts . . . are not favorites
of the law” and they “will not be enforced if the promisee enjoys a bargaining power superior to
the promisor, as where the promisor is required to deal with the promisee on his own terms.”

believe, nor does it intend to imply that the circumstances under which the waiver was signed is comparable to the
circumstances described in King in which impoverished, uneducated, and unbanked or underbanked citizens of New
Mexico were led to accept grossly unfair interest rates on payday loans. Nor does the Court conclude that the
waiver constituted a contract of adhesion. See Fiser v. Dell Comput. Corp., 188 P.3d 1215, 1217-18, 1221 (N.M.
2008) (suggesting, but not deciding, that the terms and conditions to which a consumer was assumed to have
assented by purchasing a computer from a company’s website did not constitute a contract of adhesion because there
was no evidence that the plaintiff “could not avoid doing business under the particular terms mandated by [the]
[d]efendant”). However, considering Plaintiff’s inexperience and lack of knowledge of climbing procedures and
equipment, and considering that Plaintiff was faced with the choice of signing the waiver or declining to participate
in a team building activity while surrounded by coworkers, it would, as stated in Hanks, “ignore reality” to conclude
that Plaintiff and Defendant possessed equal bargaining strength. Hanks, 885 A.2d at 746.

26 

(Doc. 21 at 10-11.) Lynch, 627 P.2d at 1249. Although Lynch did involve a recreational release,
and the Lynch court did not address the sixth Tunkl factor, Defendant relies on the foregoing
proposition in support of its argument that “courts will invalidate an agreement if the party
waiving his or her rights has no other option but to deal with the other party ‘on his own terms.’”
(Doc. 21 at 10.)

While Lynch does not support the proposition for which it is cited by

Defendant, Berlangieri clearly supports a conclusion that the sixth Tunkl factor weighs against
enforcing the waiver. Just as the plaintiff in Berlangieri was, by virtue of lack of horseback
riding experience and unfamiliarity with the riding equipment, “subject to the risk of
carelessness” by the defendant’s employees, Plaintiff’s status as a novice climber, unfamiliar
with the requisite equipment, subjected her to the risk of Defendant’s carelessness. Accordingly,
the sixth Tunkl factor weighs against enforcing the waiver.
Having concluded that at least two Tunkl factors weigh against enforcing the overly broad
waiver, the Court concludes that enforcing the waiver under the circumstances of this case would
also be unjust as a matter of public policy. Berlangieri, 76 P.3d at 1109-10 (indicating that the
Tunkl factors are a guide to determine whether public policy should operate to void a recreational
release and to resolve the question of whether its enforcement would be unjust).
V.

The Waiver Does Not Deprive This Court of Subject Matter Jurisdiction

Because the Court has determined that the waiver signed by Plaintiff as a prerequisite to her
participation the climbing activity at the Academy does not stand as a valid and enforceable bar
against her negligence claims, Defendant’s argument that the waiver effectively precludes this
Court’s subject matter jurisdiction under 28 U.S.C. Section 1346(b)(1) necessarily fails.
VI.

Conclusion

27 

For the reasons stated herein, Defendant’s Motion to Dismiss Second Amended Complaint
(ECF No. 17) For Lack of Subject-Matter Jurisdiction and Memorandum in Support (Doc. 21),
is DENIED.
IT IS SO ORDERED.

__________________________
KIRTAN KHALSA
United States Magistrate Judge

28