Rose v. Polaris Industries et al

Filing 66

MEMORANDUM DECISION AND ORDER Granting 42 Motion for Summary Judgment. The court ORDERS as follows: (1) The court GRANTS 42 Summit Lodge's motion for summary judgment. (2) The court DENIES AS MOOT 50 Summit Lodge's motion to exclude expert testimony. Signed by Judge Jill N. Parrish on 9/6/18. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

MATTHEW ROSE,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

DANIELS SUMMIT LODGE,

Case No. 2:16-cv-00938-JNP-PMW

Defendant.

District Judge Jill N. Parrish

Before the court is a motion for summary judgment, [Docket 42], and a motion to exclude
expert testimony, [Docket 50], filed by Daniels Summit Lodge (Summit Lodge). The court
GRANTS the motion for summary judgment and DENIES AS MOOT the motion to exclude expert
testimony.
BACKGROUND
On March 18, 2016, Matthew Rose rented a 2014 Polaris snowmobile from Summit Lodge.
He signed a document releasing Summit Lodge from liability for any negligence claims arising
from his use of the snowmobile. While Rose was approaching an opening in a wooden fence on
the snowmobile, the throttle malfunctioned. It stuck on full-throttle, causing Rose to be thrown
from the snowmobile into the fence. Rose was injured in the accident.
The Polaris snowmobile rented by Rose has a thumb-operated throttle lever. The driver
compresses the throttle lever to accelerate. When the driver releases the lever, it is designed to
return to the idle position. The snowmobile also has a throttle safety switch, which is designed to
automatically shut off the engine whenever pressure is removed from the throttle lever and the

throttle cable or valves do not return to the closed position. Additionally, the snowmobile normally
has two methods of manually shutting off the engine in the event of an uncontrolled acceleration.
The driver can either press the kill switch button or turn the key to the off position. Summit Lodge,
however, modified the snowmobile Rose rented so that no key was required to operate it. Thus,
Rose did not have the option of turning the key to stop the snowmobile.
The owner’s manual for the 2014 Polaris suggests that the operator of the snowmobile
conduct a number of pre-ride inspections, two of which are relevant in this case. First, the manual
recommends that the operator compress the throttle lever to ensure that it returns to the idle position
without binding or hesitation when released. Second, the manual suggests that the operator test the
throttle safety switch to ensure that it is functioning properly. The owner’s manual also
recommends periodic maintenance of various components of the snowmobile. Not surprisingly,
given that the manual suggests that the operator test these items before every ride, the manual also
suggests checking both the throttle lever and the throttle safety switch at every service interval
listed: 150 miles, 500 miles, 1,000 miles, 2,000 miles, and an annual preseason service.
Summit Lodge has a policy of documenting all maintenance and repairs performed on the
snowmobiles that it rents to customers. The records for the snowmobile rented by Rose, which was
purchased new in 2014, indicate that Summit Lodge performed a preseason service on October 19,
2015 and that the kill switch was replaced on February 15, 2016. Summit Lodge performs a number
of maintenance tasks when it services a snowmobile, including checking the throttle.
Summit Lodge also inspects its snowmobiles on a regular basis. When a customer rents a
snowmobile, an employee starts the machine, checks the throttle and the brakes, and drives it to a
location where the customer can pick it up. When the customer returns the snowmobile, an
employee then performs a more extensive inspection of the machine. This assessment is performed
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from an inspection list that is taken from the pre-ride list found in the Polaris owner’s manual and
includes testing the throttle lever and the throttle safety switch. 1 Summit Lodge does not create
written records for these routine inspections.
Rose sued both Polaris and Summit Lodge seeking to recover damages for injuries he
sustained in his snowmobile accident. Rose and Polaris stipulated to a dismissal of the claims
against Polaris. The claims that remain against Summit Lodge are for negligence and gross
negligence. Rose argues that Summit Lodge is liable for his injuries because it negligently
maintained the snowmobile’s throttle 2 and negligently modified the snowmobile so that it would
run without a key.

Summit Lodge cited the deposition testimony of its corporate representative and a maintenance
employee to establish its procedures for checking the throttle lever and throttle safety switch before
and after renting a snowmobile to a customer. In its response to the evidence cited by Summit
Lodge, Rose states: “Plaintiff disputes paragraph[s] 13 [and 14] of Defendant’s Undisputed
Material Facts for all of the reasons detailed throughout this response.” But the court is unable to
locate in Rose’s response any citation to evidence that contradicts or calls into question evidence
of Summit Lodge’s pre-rental and post-rental procedures. Moreover, vague references to
arguments or evidence found elsewhere in the nonmoving party’s response are unfair to the moving
party because he or she is not able to respond. More to the point, such vague responses violate
Rule 56(c)(1) of the Federal Rules of Civil Procedure, which requires the nonmovant to cite
“particular parts of materials in the record” to establish that a material fact is disputed. Absent any
citation to record evidence contradicting the deposition testimony of Summit Lodge’s witnesses,
the court accepts the evidence provided by Summit Lodge as undisputed. See FED. R. CIV. P. 56(e)
(a court may consider a fact undisputed “[i]f a party . . . fails to properly address another party’s
assertion as required by Rule 56(c)”).
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Rose cites evidence that Summit Lodge did not properly maintain the snowmobile’s skis, skags
(steel runners bolted to the bottom of the skis), or brake pads. He also cites evidence that Summit
Lodge did not adjust the snowmobile for Rose’s weight or riding style or the trail conditions. But
Rose does not cite evidence that any of these things caused the accident. Instead, he argues that
the stuck throttle was the cause. Tenth Circuit “case law forbids the district court from relying on
new arguments or materials to decide a summary judgment motion unless the opposing party is
provided an opportunity to respond.” Geddes v. United Staffing All. Employee Med. Plan, 469 F.3d
919, 928 (10th Cir. 2006). Because Rose never argued that anything other than a negligently
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Summit Lodge moves for summary judgment on Rose’s negligence and gross negligence
claims. First, it argues that Rose contractually released his negligence claim. Second, Summit
Lodge asserts that no reasonable jury could conclude that it was grossly negligent. In addition,
Summit Lodge moves to exclude Rose’s expert witness, arguing that he is not qualified to testify
about snowmobile maintenance.
LEGAL STANDARD
Utah’s substantive law applies to Rose’s claims against Summit Lodge. But the court
applies federal procedural law to determine whether summary judgment is warranted. See Stickley
v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). Summary judgment is
appropriate when “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The movant bears the
initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this burden, the burden then shifts to
the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To do this, the nonmoving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
When the nonmoving party bears the burden of proof at trial on a dispositive issue, that
party must go “beyond the pleadings” and “designate specific facts” to “make a showing sufficient
to establish the existence of an essential element to that party’s case.” Celotex, 477 U.S. at 322.

maintained throttle system caused the crash, only his throttle maintenance theory is relevant to this
motion.
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“The plain language of Rule 56(c) mandates the entry of judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Id.
ANALYSIS
I.

MOTION FOR SUMMARY JUDGMENT
A. Negligence
Summit Lodge argues that it is entitled to summary judgment on Rose’s negligence claim

because Rose signed a preinjury release of this cause of action. “It is well settled that preinjury
releases of claims for ordinary negligence can be valid and enforceable.” Penunuri v. Sundance
Partners, Ltd., 301 P.3d 984, 991 (Utah 2013) [hereinafter Penunuri I]. “But ‘preinjury releases
are not unlimited in power and can be invalidated in certain circumstances.’ Specifically, ‘(1)
releases that offend public policy are unenforceable; (2) releases for activities that fit within the
public interest exception are unenforceable; and (3) releases that are unclear or ambiguous are
unenforceable.’” Id. (citations omitted). Rose argues that the court should not enforce the release
that he signed because two of these exceptions apply here.
1) Public Policy
First, Rose asserts that the release offends public policy. “To determine whether a contract
offends public policy, [courts] first determine whether an established public policy has been
expressed in either constitutional or statutory provisions or the common law.” Id. In Rothstein v.
Snowbird Corp., for example, the Utah Supreme Court looked to public policy expressed in a
statute immunizing ski resorts from liability for the inherent risks of skiing to invalidate a release
signed by a skier. 175 P.3d 560, 563–65 (Utah 2007); see UTAH CODE § 78B-4-401. But that court
refused to invalidate a release signed by a participant in a guided horseback tour because the statute
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limiting liability for horseback riding does not contain a similar expression of public policy.
Penunuri I, 301 P.3d at 993; see UTAH CODE §§ 78B-4-201 to -203.
Rose argues that the release should be invalidated under the public policy exception
because snowmobiling is like skiing in that both sports are practiced by many Utah residents and
contribute to the state’s economy. He contends, therefore, that this case is similar to Rothstein and
that the release should not be enforced. But the public policy exception is not an invitation for
courts to engage in a free-wheeling analysis of the benefits of a particular activity. The Utah
Supreme Court has held that this exception must be tethered to an expression of public policy
contained in a constitution, statute, or the common law. Penunuri I, 301 P.3d at 991.
Rose has not identified any official expression of public policy that could justify the
invalidation of releases of liability for injuries caused by operating snowmobiles. The public policy
exception in Rothstein was tied to a specific expression of public policy regarding the sport of
skiing contained in Utah Code section 78B-4-401. Because the Utah Legislature has not enacted a
similar statutory expression of public policy regarding snowmobiling, the public policy exception
does not apply here.
2) Ambiguity
Second, Rose argues that the court should invalidate the release because it is unclear and
ambiguous. “Preinjury releases, to be enforceable, must be ‘communicated in a clear and
unequivocal manner.’” Pearce v. Utah Athletic Found., 179 P.3d 760, 767 (Utah 2008). However,
“[t]o be effective, a release need not achieve perfection . . . . It suffices that a release be clear,
unambiguous, and explicit, and that it express an agreement not to hold the released party liable
for negligence.” Id. (citation omitted).
The release signed by Rose states:
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3. Waiver, Release and Indemnification. I understand and agree
that Daniels Summit is not an insurer of my/my minor child’s
conduct. TO THE FULLEST EXTENT PERMITTED BY LAW, I
HERBY RELEASE, WAIVE, COVENANT NOT TO SUE, AND
DISCHARGE DANIELS SUMMIT LODGE AND ALL OF ITS
TRUSTEES,
DIRECTORS,
MANAGERS,
OFFICERS,
EMPLOYEES,
VOLUNTEERS,
AGENTS
AND
REPRESENTATIVES (COLLECTIVELY, THE “RELEASEES”)
FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS AND
CAUSES OF ACTION WHATSOEVER ARISING OUT OF OR
RELATED TO ANY LOSS, DAMAGE, OR INJURY,
INCLUDING DEATH, THAT MAY BE SUSTAINED BY ME/MY
MINOR CHILD, WHETHER CAUSED BY THE NEGLIGENCE
OF RELEASEES OR OTHERWISE, ARISING OUT OF OR
RELATED TO MY/MY MINOR CHILD’S USE OF DANIELS
SUMMIT OR PARTICIPATION IN THE SPORTS. 3
Rose does not point to any language in the release and argue that it is ambiguous. Nor does he
assert that the release language inadequately expresses an agreement not to hold Summit Lodge
liable for negligence. Instead, he compiles a laundry list of additional information that he believes
should have been included in the release. For example, Rose contends that the release is ambiguous
because:
a. The release fails to state that Defendant can ignore a
manufacturer’s (Polaris) specific maintenance guidelines;
b. The release fails to state that Defendant may deliberately choose
to not perform any necessary daily, monthly, or yearly maintenance
on the snowmobile; [and]
c. The release fails to state that Defendant modified the
snowmobile’s safety by eliminating the key as one of the ways to
shut off the sled during an emergency; . . . .

The term “Sports” is defined earlier in the contract to include a variety of activities, including
snowmobiling.
3

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Rose, however, does not cite authority for the proposition that a release must list the
specific acts of negligence that are released. All that is necessary is “an agreement not to hold the
released party liable for negligence.” Id. (citation omitted). Indeed, the Utah Supreme Court has
previously analyzed language that was nearly identical to the release language at issue here and
determined that the language was not ambiguous. Id. 4 This court, therefore, is bound by the Utah
Supreme Court’s determination that this release language is sufficiently clear to bind a party that
signs the release.
3) Conclusion
The court determines that the release is not contrary to public policy and is not ambiguous.
Rose, therefore, contractually waived his ordinary negligence claim and Summit Lodge is entitled
to summary judgment on this cause of action.

4

The release in Pearce read:
TO THE FULLEST EXTENT PERMITTED BY LAW, I HEREBY
RELEASE, WAIVE, COVENANT NOT TO SUE, AND
DISCHARGE THE UAF AND ALL OF ITS TRUSTEES,
DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES,
VOLUNTEERS,
AGENTS
AND
REPRESENTATIVES
(COLLECTIVELY, THE “RELEASEES”) FROM ANY AND ALL
LIABILITY, CLAIMS, DEMANDS, AND CAUSES OF ACTION
WHATSOEVER ARISING OUT OF OR RELATED TO ANY
LOSS, DAMAGE, OR INJURY, INCLUDING DEATH, THAT
MAY BE SUSTAINED BY ME/MY MINOR CHILD OR LOSS OR
DAMAGE TO ANY PROPERTY BELONGING TO ME/MY
MINOR CHILD, WHETHER CAUSED BY THE NEGLIGENCE
OF RELEASEES OR OTHERWISE, ARISING OUT OF OR
RELATED TO MY/MY MINOR CHILD'S USE OF THE SPORTS
FACILITIES OR PARTICIPATION IN THE SPORTS.

Pearce, 179 P.3d at 763 n.1

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B. Gross Negligence
Summit Lodge also argues that it is entitled to summary judgment on Rose’s gross
negligence claim. “In Utah, gross negligence is ‘the failure to observe even slight care; it is
carelessness or recklessness to a degree that shows utter indifference to the consequences that may
result.’” Penunuri v. Sundance Partners, Ltd., No. 20160683, 2017 WL 3697701, at *8 (Utah Aug.
25, 2017) (citation omitted) [hereinafter Penunuri II]. “[T]he standard for granting summary
judgment dismissing a gross negligence claim is whether, based on the undisputed material facts,
reasonable minds could reach but one conclusion as to whether the defendant ‘observe[d] even
slight care’ and did not demonstrate ‘carelessness or recklessness to a degree that shows utter
indifference to the consequences that may result.’” Id. (second alteration in original) (citation
omitted).
In Penunuri II, for example, the plaintiff was participating in a guided horseback trail ride.
Id. at *2. The parties agreed that the standard of care in guided horseback trail rides is to maintain
a gap between horses that is 32 feet or less so that a trailing horse does not unexpectedly accelerate
in order to catch up to the next horse in line. Id. at *8. The plaintiff’s horse, however, fell behind
the next horse in line by over 100 feet. Id. The guide decided to proceed to a clearing before
stopping to address the gaps in the train of horses. Id. at *2. Before the train reached the clearing,
the plaintiff was thrown from her horse and injured. Id. The plaintiff sued the company that
operated the trail ride and the trial court granted summary judgment in favor of the company on
the plaintiff’s gross negligence claim. Id. at *3. The plaintiff appealed.
The issue before the Utah Supreme Court was whether a reasonable jury could conclude
that the guide failed to exercise even slight care when she failed to immediately stop the train of
horses and allow the plaintiff’s horse to catch up after it had fallen behind by over 100 feet. The
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Utah Supreme Court concluded that the trial court did not err by granting summary judgment in
favor of the defendant. Although the plaintiff had produced evidence that the guide had breached
the standard of care, the court held that a plaintiff must show more in order to avoid summary
judgment on a gross negligence claim. Id. at *9. “Instead, the plaintiff must point to evidence that
the defendant’s conduct exposed the plaintiff to a significantly elevated level of risk.” Id. The Utah
Supreme Court reasoned that the Penunuri II plaintiff
failed to point to evidence of the differential between the risk
associated with the guide’s decision to proceed to the clearing
[before addressing the gap between the horses], on the one hand, and
the risk associated with taking some other action, such as stopping
and waiting for the gaps to close, on the other. Without such
evidence, there is nothing that would sustain a jury’s finding that the
guide’s decision to proceed to the clearing significantly increased
the risk of harm to the riders. Instead, the jury could only speculate
on the key question of how much more dangerous it was for the
guide (1) to allow the gaps to temporarily increase before
permanently resolving them by ponying up the horse rather than (2)
for the guide to have taken some other course of action—e.g.,
stopping and waiting for the gaps to close themselves.
Id.; see also Blaisdell v. Dentrix Dental Sys., Inc., 284 P.3d 616, 621–22 (Utah 2012) (affirming
summary judgment on a gross negligence claim because it could not be reasonably asserted that
the defendant had shown “utter indifference” to the possibility of harm).
1) Grossly Negligent Maintenance Theory
Rose first argues that Summit Lodge was grossly negligent in maintaining the throttle
system of the snowmobile he rented. He contends that the standard of care for throttle maintenance
is the manufacturer recommendations made in the owner’s manual: checking the throttle lever and
the throttle safety switch before each ride and at each of the suggested maintenance intervals.
Taking the evidence in the light most favorable to Rose, Summit Lodge checked the throttle
lever twice and the throttle safety switch once between the time that the snowmobile was returned
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by one customer and rented to the next customer. Summit Lodge checked the throttle lever in a
pre-rental inspection and the throttle lever and the throttle safety switch in a post-rental inspection.
But Summit Lodge did not perform the scheduled maintenance at 150 miles, 500 miles, 1,000
miles, or 2,000 miles 5 and therefore did not check the throttle lever and safety switch at these
maintenance intervals.
Summit Lodge is entitled to summary judgment on Rose’s grossly negligent maintenance
theory because a reasonable jury could not conclude that it failed to observe even slight care in
maintaining the throttle system. Summit Lodge complied with the pre-ride check suggested by the
owner’s manual by inspecting the throttle lever and throttle safety switch before a snowmobile
was rented to a customer. Its only deviation from the owner’s manual was failing to test the throttle
system at the 150 mile, 500 mile, 1,000 mile, or 2,000 mile maintenance intervals. But testing the
throttle before each rental qualifies as some care, and Rose has failed to produce any evidence to
suggest that the failure to perform the same throttle tests again during these four maintenance
intervals would have made the throttle system any safer. In short, Rose has failed to point to any
evidence suggesting the degree of utter indifference required for gross negligence. See Penunuri
II, 2017 WL 3697701, at *10 (affirming district court’s ruling granting summary judgment on a
gross negligence claim); Blaisdell, 284 P.3d at 621–22 (same).
Rose, moreover, failed to produce any evidence that the Summit Lodge’s only deviation
from the owner’s manual, failing to test the throttle system at the 150 mile, 500 mile, 1,000 mile,
or 2,000 mile maintenance intervals, caused his accident. Because the accident occurred at 6,700

These are the only recommended service intervals fixed by mileage. After theses intervals, the
only scheduled maintenance recommended by the owner’s manual is an annual preseason service.
Summit Lodge performed the scheduled preseason service before the date of the accident.
5

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miles, it is difficult to see how an inspection performed thousands of miles earlier could have
prevented the accident—especially given that the throttle lever and safety switch was inspected
many times after these service intervals.
Finally, Rose has not presented any evidence of the differential between the risks associated
with following the owner’s manual by testing the throttle lever and safety switch before each ride
and at the recommended maintenance intervals, on the one hand, and the risks associated with
Summit Lodge’s practice of testing the throttle lever and safety switch before renting a snowmobile
to a customer but not at the four recommended maintenance intervals, on the other. Absent any
evidence of a disparity between the risks associated with following the owner’s manual and the
risks associated with Summit Lodge’s maintenance of the throttle system, a jury could only
speculate as to how much more dangerous Summit Lodge’s maintenance procedures were. See
Penunuri II, 2017 WL 3697701, at *9. In short, there is no evidence that Summit Lodge’s
maintenance of the throttle fell so far below the alleged standard of care that it rose to the level of
gross negligence.
2) Grossly Negligent Modification Theory
Rose also argues that Summit Lodge acted with gross negligence when it modified the
snowmobile so that it would run without a key. He alleges that this modification eliminated one of
the two normal methods of manually shutting off the engine (the key and the kill switch) in order
to stop his uncontrolled acceleration.
Once again, however, Rose has failed to cite evidence of the differential in risk between
having two methods of shutting off the engine and having only one method of shutting off the
engine. More importantly, Rose has failed to identify any evidence suggesting that the removal of
the key system caused the accident. It is undisputed that the kill switch was functional, that Rose
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knew how to use it to turn off the engine, and that he knew where it was located. Furthermore,
Rose does not cite evidence that he fumbled for the missing key or that he was momentarily
confused by its absence when his snowmobile accelerated out of control. In short, there is no
evidence that Summit Lodge “exposed [Rose] to a significantly elevated level of risk” by
eliminating one method of manually turning off the engine. See Penunuri II, 2017 WL 3697701,
at *9.
3) Conclusion
Given the undisputed material facts in this case, a reasonable jury could not find that
Summit Lodge failed to observe “even slight care” in the inspection and maintenance of the
snowmobile’s throttle or when it modified the snowmobile to eliminate the need for a key. See
Penunuri II, 2017 WL 3697701, at *8 (citation omitted). Nor could a reasonable jury find that
Summit Lodge exhibited “carelessness or recklessness to a degree that shows utter indifference to
the consequences that may result.” Id. (citation omitted). Summit Lodge, therefore, is entitled to
summary judgment on Rose’s gross negligence claim.
II.

MOTION TO EXCLUDE EXPERT TESTIMONY
Because the court grants summary judgment on all of Rose’s claims, Summit Lodge’s

motion to exclude expert testimony is moot.
CONCLUSION AND ORDER
The court ORDERS as follows:
(1) The court GRANTS Summit Lodge’s motion for summary judgment. [Docket 42].
(2) The court DENIES AS MOOT Summit Lodge’s motion to exclude expert testimony.
[Docket 50].
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DATED September 6, 2018.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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