Opinion
No. CIV 11-393 JP/RHS
11-13-2012
DARLENE BURRELL, Plaintiff, v. HARLEY DAVIDSON MOTOR COMPANY, INC., a foreign corporation organized in Texas and doing business in New Mexico; MOTORSPORTS OF ALBUQUERQUE, LLC, a foreign limited liability company organized in Florida and doing business in New Mexico; MOTORCYCLE SAFETY FOUNDATION, INC., a foreign nonprofit corporation doing business in New Mexico; FRANK ALLEN; and JEFFREY PIPER, Defendants.
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANTS' AMENDED MOTION TO RECONSIDER (Doc. No. 166)
Harley-Davidson Motor Company, Inc., Motorsports of Albuquerque, LLC, Motorcycle Safety Foundation, Inc., Frank Allen, and Jeffrey Piper (collectively, "Defendants"), move the Court to reconsider the Court's denial of Defendants' Motion for Summary Judgment. Defendants had sought summary judgment on the ground that prior to the incident at issue in this case, Plaintiff signed two liability releases that Defendants believe are enforceable. On July 24, 2012, the Court denied Defendants' Motion for Summary Judgment, concluding that the liability releases are unenforceable as a matter of New Mexico public policy. See MEMORANDUM OPINION AND ORDER (Doc. No. 144). Defendants now ask the Court to revisit that ruling. The Court concludes that Defendants' Amended Motion to Reconsider should be denied because Defendants have not offered adequate justification for the Court to alter its ruling.
On August 9, 2012, Defendants filed DEFENDANTS' MOTION TO RECONSIDER COURT'S MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 161) (Motion to Reconsider). On August 10, 2012, Defendants filed DEFENDANTS' AMENDED MOTION TO RECONSIDER COURT'S MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 166) (Amended Motion to Reconsider). On August 20, 2012, Plaintiff filed PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' AMENDED MOTION TO RECONSIDER COURT'S MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 179) (Response). On August 31, 2012, Defendants filed DEFENDANTS' REPLY IN SUPPORT OF THEIR AMENDED MOTION TO RECONSIDER COURT'S MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 202) (Reply).
On May 31, 2012, Defendants filed DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 108) (Motion for Summary Judgment). On June 25, 2012, Plaintiff filed PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 124). On July 16, 2012, Defendants filed DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (Doc. No. 139). Since Defendants filed both a Motion to Reconsider (Doc. No. 161) and an Amended Motion to Reconsider (Doc. No. 166). The Court concludes that Defendants' Amended Motion to Reconsider superseded Defendants' Motion to Reconsider. Accordingly, the Court will consider the merits of Defendants' Amended Motion to Reconsider (Doc. No. 166) and will deny as moot Defendants' Motion to Reconsider (Doc. No. 161).
BACKGROUND
The Court will provide only a brief factual background in this MEMORANDUM OPINION AND ORDER. The Court provided a more detailed recitation of the relevant facts in the Court's previous MEMORANDUM OPINION AND ORDER(Doc. No. 144).
In January 2011, Plaintiff Darlene Burrell enrolled in a "New Rider" course offered through the "Riders Edge® Academy of Motorcycling" at Thunderbird Harley-Davidson/Buell in Albuquerque, New Mexico. See SECOND AMENDED COMPLAINT FOR PERSONAL INJURIES AND MONEY DAMAGES (Doc. No. 52) (Second Amended complaint) at ¶¶ 15, 17. On January 20, 2011, Plaintiff signed and dated two contracts: (1) the Riders Edge® Release and Waiver ("Release and Waiver"), and (2) the Riders Edge® Acknowledgments and Assumption of Risk ("Acknowledgments and Assumption of Risk"). Doc. Nos. 108-2 and 108-3. Defendants required Plaintiff to sign the liability releases as a condition of her participation in the Riders Edge® course. See Second Amended Complaint at ¶ 23.
The Court will refer to these contracts, collectively, as "liability releases."
The Release and Waiver form provides, in relevant part:
I hereby RELEASE AND FOREVER DISCHARGE [the "Released Parties"] from ANY AND ALL CLAIMS, DEMANDS, RIGHTS, CAUSES OF ACTION AND LOSSES . . . IN ANY WAY RESULTING FROM, OR ARISING OUT OF OR IN CONNECTION WITH MY PARTICIPATION IN THE CLASS . . . including without limitation all such claims resulting from the NEGLIGENCE of any Released Party[.] . . . I acknowledge and understand that by my signing this Release I . . . AGREE NOT TO SUE any or all of the Released Parties for any injury . . . resulting from, or arising out of or in connection with, my participation in the class.Doc. No. 108-2 (emphasis in original).
The Acknowledgments and Assumption of Risk form provides, in relevant part:
I fully understand and acknowledge that operating, and learning to operate, a motorcycle are activities that have their own unique risks, and that serious injury or death could result from participating in the Class through no fault of my own. I understand that these risks may be caused by the negligence or fault of the Class Instructor(s) or sponsors, or the negligence or fault of me, other Class participants or other persons, or may arise from the repair, maintenance or operation of the motorcycles used in the Class, weather conditions during the time the Class is conducted, or other causes, whether foreseeable or unforeseeable. I am voluntarily participating in the Class. I EXPRESSLY AGREE TO ASSUME THE ENTIREDoc. No. 108-3 (emphasis in original).
RISK OF ANY ACCIDENTS, PROPERTY DAMAGE, OR PERSONAL INJURY . . . THAT I MIGHT SUFFER AS A RESULT OF MY LEARNING TO OPERATE OR OPERATING A MOTORCYCLE AND OTHERWISE PARTICIPATING IN THE CLASS.
On January 23, 2011, Plaintiff was injured while participating in the road training portion of the Riders Edge® course. See Second Amended Complaint at ¶ 20. Plaintiff subsequently filed this negligence suit against Defendants, seeking damages incurred as a result of injuries Plaintiff sustained on January 23, 2011.
In the MEMORANDUM OPINION AND ORDER denying Defendants' Motion for Summary Judgment, the Court relied on the New Mexico Supreme Court's opinion in Berlangieri v. Running Elk Corp., 2003-NMSC-024, 134 N.M. 341, 76 P.3d 1098. Berlangieri adopted a two-step inquiry for determining whether a liability release is enforceable. See id. at ¶¶ 28-39. First, a court should "look to the specific language of the release to determine whether it is sufficiently clear and unambiguous that it would inform the person signing it of its meaning." Id. at ¶ 29. If the release is sufficiently clear, a court should consider "whether the release is affected with a public interest such that it is unenforceable as contrary to public policy." Id. at ¶ 38. To help guide courts in determining whether a release is contrary to public policy, the New Mexico Supreme Court adopted a non-exclusive list of factors from a California Supreme Court case, Tunkl v. Regents of University of California, 383 P.2d 441, 445-46 (1963):
[T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It 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, 2003-NMSC-024 at ¶ 39 (quotation marks, citations, and footnotes omitted). The New Mexico Supreme Court explained that the factors are not a balancing test, since not all of the factors will always be relevant, and sometimes even a single factor will be significant enough to invalidate the release. See id.
Applying Berlangieri to the liability releases in this case, this Court determined first that the liability releases are sufficiently clear and unambiguous. See MEMORANDUM OPINION AND ORDER at 12-15. However, under the second step, the Court found that five out of the six factors weighed in favor of finding the releases invalid. The Court concluded that the liability releases are unenforceable as a matter of New Mexico public policy. See id. at 15-23.
DISCUSSION
In their Amended Motion to Reconsider, Defendants assert that if the Court does not reconsider its ruling and enforce the liability releases, the Harley Davidson Motor Company and the Motorcycle Safety Foundation will have to reevaluate their involvement in training new motorcyclists in New Mexico due to the risk of unlimited liability. See Amended Motion to Reconsider at 7-9. Defendants argue specifically that (1) the Court improperly expanded New Mexico common law and pronounced state public policy; (2) the Court's ruling is contrary to New Mexico's public policy to encourage motorcycle safety training; (3) the Court's ruling is contrary to Tunkl and California cases construing Tunkl; (4) requiring a student to sign a liability release before participating in training is a fair quid pro quo; (5) the Court misapplied the sixth Tunkl factor; (6) the Court's ruling imperils motorcycle training's future in New Mexico; and (7) the Court's ruling undermines the efficacy of all liability waivers in New Mexico.
In her Response, Plaintiff argues that since Defendants offer neither authority nor argument under Federal Rule of Civil Procedure 59(e) or Rule 60(b), the Amended Motion to Reconsider should be denied as no more than an attempt at a "second bite at the proverbial apple." Response at 2. Plaintiff also notes that the Court's MEMORANDUM OPINION AND ORDER "made no new law, but rather applied the existing law to the facts of this particular case, and ruled accordingly," and that Defendants cite no New Mexico cases indicating that the Court mis-weighed or inappropriately applied the six Tunkl factors. Id. at 7-9. Responding to Defendants' argument that this Court should not rule on New Mexico public policy, Plaintiff rejoins that Defendants removed the case to federal court, so it is odd that they now question this Court's competence to decide the issue. See id. at 9.
In their Reply, Defendants correctly counter a large portion of Plaintiff's argument regarding Rules 59(e) and 60(b) by pointing out that neither Rule applies, for the Court has not issued a final judgment. See Reply at 1-2. Defendants also cite in their Reply, for the first time, cases from New Mexico state and federal courts that they say "support[] a narrow reading of Berlangieri" and its six factor analysis. Reply at 6-11. Upon careful review, however, the Court adheres to its prior analysis of the liability releases' invalidity. The Court believes that Defendants' newly cited New Mexico cases, applying Berlangieri and involving different liability releases, are distinguishable. As a result, the Court maintains its previous decision not to enforce Defendants' liability releases because they violate New Mexico public policy. A. Legal Standard Governing a Motion to Reconsider
"The Federal Rules of Civil Procedure do not recognize a 'motion to reconsider.'" Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); accord Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir. 2002). However, "[a] district court has discretion to revise interlocutory orders prior to entry of final judgment." Trujillo v. Bd. of Educ. of Albuquerque Pub. Sch., 212 F. App'x 760, 765 (10th Cir. 2007) (citing Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005); Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988)). "Every order short of a final decree is subject to reopening at the discretion of the district judge." Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) (citing FED. R. CIV. P. 54(b)).
The Court's MEMORANDUM OPINION AND ORDER denying Defendants' motion for summary judgment was an interlocutory order, not a final judgment. Accordingly, the Court construes Defendants' Amended Motion to Reconsider under Rule 54(b), which provides that "any order . . . however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . is subject to revision at any time before the entry of judgment adjudicating all" claims between the parties. Raytheon Constructors, Inc. v. Asarco Inc., 368 F.3d 1214, 1216-17 (10th Cir. 2003) (holding that district court erred in reviewing motion for reconsideration under FED. R. CIV. P. 60(b)). In light of the New Mexico cases interpreting Berlangieri that Defendants have newly brought to its attention, the Court will revisit the question of the liability releases' validity. In this review, the Court is not bound by the stricter standards of Rule 59(e) or Rule 60(b), but rather relies on its "general discretionary authority" under Rule 54(b) to analyze Defendants' arguments for a different outcome. See Trujillo, 212 F. App'x at 765 (10th Cir. 2007). B. Defendants' Arguments Do Not Merit a Change in the Court's Decision.
Defendants cite Federal Rule of Civil Procedure 56 in their Amended Motion to Reconsider, but that rule, regarding the standard and mechanics of summary judgment, does not provide for whether or how a court may reconsider its original ruling. See Amended Motion to Reconsider at 1. Therefore, as noted, the Court will use its discretion under Rule 54(b) in reviewing the MEMORANDUM OPINION AND ORDER.
1. The MEMORANDUM OPINION AND ORDER Applied and Did Not Expand State Law.
Defendants first argue that the Court improperly expanded New Mexico common law and pronounced New Mexico public policy. See Amended Motion to Reconsider at 5-6. Defendants assert that a federal court sitting in diversity has a responsibility to ascertain and apply state law without creating new common law or articulating public policy. See id.
The Court agrees that it must apply New Mexico law and public policy as articulated by the New Mexico Supreme Court. In fact, at the July 29, 2012 pretrial conference, the Court queried whether "it would be appropriate to consider referring this issue to the New Mexico Supreme Court in view of the Berlangieri ruling," since, as the Court noted, "the State Supreme Court is the one that really pronounces what the policy is on state legal issues." Partial Transcript, Doc. No. 159 at 4, lines 2-6. Defendants' counsel responded, "I believe that the Supreme Court, in 2003, when Berlangieri came down, established sufficient parameters to allow the federal court to apply New Mexico law." Id. at lines 7-10. Plaintiff's counsel agreed. See id. at line 19. Accordingly, the Court applied the New Mexico Supreme Court's opinion in Berlangieri to the liability releases in this case and concluded that the liability releases are unenforceable as a matter of New Mexico public policy. See MEMORANDUM OPINION AND ORDER at 14-23. Now that the Court has denied Defendants' Motion for Summary Judgment, Defendants question the Court's competency to decide this issue of New Mexico public policy.
However, contrary to Defendants' assertions, the Court in the MEMORANDUM OPINION AND ORDER did not engage in "ad hoc policy judgments." Amended Motion to Reconsider at 5. Nor did the Court "create new doctrines expanding state law" or "blaze new, previously uncharted state-law trails." Id. Rather, the Court engaged in a detailed analysis of the liability releases' validity in light of New Mexico public policy as it has been articulated by the state's courts and legislature. This is precisely the kind of analysis required by Berlangieri, whose six factors the Court relied on explicitly. Of necessity, the Berlangieri analysis will have different outcomes when applied to different liability releases, in different factual contexts, as the cases discussed infra demonstrate. But that is the nature of a six-factor test. The Court is, therefore, wholly unpersuaded by the Defendants' argument that the Court created new common law and improperly pronounced state public policy.
2. The MEMORANDUM OPINION AND ORDER Supported and Did Not Contradict New Mexico Public Policy.
Defendants next argue that the Court's ruling is contrary to New Mexico's public policy to encourage motorcycle safety training. See Amended Motion to Reconsider at 7-9. The parties fully briefed this issue before, and offered oral argument at the July 19, 2012 pretrial conference. The Court also thoroughly considered the implications of the New Mexico motorcycle training statute, NMSA 1978, § 66-10-10 (1993), and the statute's implementing regulations, 18.20.10 NMAC. See MEMORANDUM OPINION AND ORDER at 15-17. Defendants now proffer a California case that they say supports their argument that courts should uphold liability releases or else instructors will be unable to "effectively instruct novices in the safe use of motorcycles [for fear of] limitless liability." Amended Motion to Reconsider at 8-9 (citing Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 1368 (Cal. App. 1996)). Defendants assert that not only is the Court's MEMORANDUM OPINION AND ORDER contrary to the California case, it "discourages effective motorcycle instruction" and may, as Defendants assert elsewhere, cause Defendant Motorcycle Safety Foundation "to consider ceasing its administration of New Mexico's motorcycle training program." Amended Motion to Reconsider at 9. The Court agrees that if New Mexico had expressed the public policy articulated in the California case to which Defendants cite, this public policy would be important to consider. However, Defendants cite no New Mexico authority for such a proposition, and the Court can find none. California cases, and especially its public policy, hold no persuasive sway in New Mexico unless adopted by the state.
Defendants also confuse the general public policy concern in the Berlangieri analysis with the more specific policy on which they would like the Court to focus. Defendants maintain that the policy at issue is "New Mexico's policy to encourage instruction in motorcycle safety." Id. at 7. But the public policy with which the motorcycle safety laws are concerned is broader than this. These laws do encourage motorcycle safety training by setting up a statewide standard and a fund for such training, but they primarily look to the students' safety and to public safety. The statutes and regulations governing motorcycle safety training focus on new, inexperienced motorcyclists and the hazards they may create on the road. See NMSA 1978, § 66-10-10 (1993). The implementing regulations set guidelines for the safety training course to be offered to new motorcycle riders. See 18.20.10 NMAC (2001). Similarly, in Berlangieri, the Legislature in a statute had expressed its desire to encourage an activity (horseback riding), but simultaneously recognized that people are sometimes injured when riding. See Berlangieri, 2003-NMSC-024, ¶ 49. The Berlangieri court noted that the defendants there wanted the court to look only at the benefits conferred by the relevant statute on horseback riding businesses, rather than on patrons, but the court refused to construe the statute so narrowly. See id. Instead, the court wrote, the statute "was written to balance the sometimes competing interests of equine operators and their patrons. The policy of allowing patrons to hold equine operators liable for their negligence . . . is consistent with the legislative findings and purpose [in the statute]." Id.
The policy considerations in this case differ little from those in Berlangieri. Though Defendants, unlike the Berlangieri defendants, explicitly provide training to the public and not just recreation, this does not mean that Defendants should be less accountable. Indeed, because Defendants cater to students who have no knowledge of how to operate a motorcycle, and who hope to be trained safely in how to ride a motorcycle, Defendants have even more responsibility to guard against negligence in training classes. This responsibility would be undermined if Defendants were able to avoid liability in the event of negligence. Relatedly, Defendants argue that it is a "fair quid pro quo" to require students of risky activities to sign a liability release when the activity is not "an essential service or a service of great public importance." Amended Motion to Reconsider at 13. But Defendants cite only California law for this position, and the cited cases do not demonstrate that the Court made a clear error of law in its MEMORANDUM OPINION AND ORDER. And because New Mexico's legislature has deemed motorcycle safety training to be of public importance, as demonstrated by the laws regulating that training, this Court cannot agree with Defendants that liability releases are acceptable as a quid pro quo. Accordingly, after additional review of the relevant public policy implications, the Court must reject Defendants' argument that the Court's MEMORANDUM OPINION AND ORDER contradicted New Mexico public policy.
3. The MEMORANDUM OPINION AND ORDER Was Not Contrary to Tunkl, and New Mexico Has Not Indicated That It Will Follow Tunkl's California Progeny.
Defendants next assert that the Court's ruling is contrary to the California case Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963), which set forth the six-factor analysis that the New Mexico Supreme Court adopted in Berlangieri. See Amended Motion to Reconsider at 9-13. In particular, Defendants argue that the Court mis-applied the sixth factor, which assesses the degree of control that a seller of a product or service has over the purchaser. See id. at 14-15. Defendants also argue that the Court's decision is contrary to California cases construing Tunkl. See id. at 9-13. None of these arguments is persuasive.
Defendants contend that the Tunkl court created only "a narrow exception to the general rule that liability releases are enforceable." Id. at 10. Defendants note that two factors that are less influential in the present case were decisive in Tunkl, and apparently argue that this alone should mean the liability releases are enforceable. See id. But as Defendants acknowledge, Tunkl and the present case present "significantly different" factual scenarios, so it is impossible to say, simply because other factors were relevant in Tunkl, that the Court's ruling in this case was "contrary to" Tunkl. Id. at 10-11. California adopted the six factors, and New Mexico later did the same, as a "rough outline" of factors to use as guidance when analyzing liability releases. See Tunkl, 383 P.2d 441, 444-47 (1963); Berlangieri, 2003-NMSC-024, ¶ 39. As discussed below, each case and each liability release necessarily presents a different scenario with different concerns. The Berlangieri court recognized as much when it cautioned that "it would be a rare case when a release exhibited all of these factors . . . . These six factors are only indicators that are helpful in determining the larger question of whether enforcement of the release would be unjust." 2003-NMSC-024, ¶ 39. The Court thus cannot conclude from Defendants' arguments that its MEMORANDUM OPINION AND ORDER was contrary to Tunkl.
As noted, Defendants argue specifically that the Court improperly applied the sixth Tunkl factor, which involves the service provider's control over the person signing the liability release. Defendants cite two California cases analyzing this factor that support their view that Plaintiff was not under Defendants' control. See Amended Motion to Reconsider at 14-15. Defendants allege that "Plaintiff alone had actual control over the instrumentality that ultimately resulted in her injury," and could have left the class at any time. Id. at 15. However, Defendants miss the point of this factor's inquiry. Plaintiff may have had "actual control" of the motorcycle while on the training course, but the Court found in its MEMORANDUM OPINION AND ORDER, and the Court still finds, that Defendants nonetheless had an important degree of control over Plaintiff. See MEMORANDUM OPINION AND ORDER at 21-22. Such control does not have to, and did not in this case, involve physically manipulating Plaintiff. But as the Court observed, "Plaintiff was required to use the motorcycles provided by Defendants and to comply with the range rules and regulations." Id. at 22. Also, "Plaintiff started the motorcycle training course without knowing how to operate a motorcycle," thereby decisively, if mostly figuratively, putting herself into the hands and under the control of her experienced teachers. Id. This is the kind of control with which the sixth Tunkl factor is concerned, rather than the literal control on which Defendants focus. The Court thus stands by its prior application of the sixth factor.
Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358 (1996); Okura v. United States Cycling Federation, 186 Cal. App. 3d 1462 (1986).
Defendants also argue that "New Mexico is likely to adhere to California's development of Tunkl." Reply at 5. Defendants believe "[i]t is reasonable for a court construing the law of New Mexico to consider the development of the same legal principles in California" since New Mexico "frequently" adopts California's courts' approach. Reply at 5-6. But New Mexico's Supreme Court has never indicated that in adopting the Tunkl factors it was also adopting the whole body of California case law construing Tunkl, and this Court will not assume that the state's Supreme Court intended such a sweeping adoption. Likewise, in the cases cited by Defendants where New Mexico courts adopted California precedent, the state's courts did not go so far as to adopt the entire body of case law following that precedent. New Mexico has its own public policies and needs, which New Mexico jurisprudence has addressed when interpreting the Tunkl factors; the California cases, while instructive in their own ways, have no real bearing on New Mexico courts' concerns in analyzing liability releases' enforceability.
4. New Mexico Cases Following Berlangieri Are Distinguishable From This Case.
Defendants' most viable argument is that New Mexico case law, both in state and federal courts, supports a narrow reading of Berlangieri, and that this Court's MEMORANDUM OPINION AND ORDER did not conform to this narrow reading.
The first case cited by Defendants, First Baptist Church of Roswell v. Yates Petroleum Corp., only tangentially refers to Berlangieri. 2012-NMCA-064, 281 P.3d 1235 (cert. granted June 13, 2012). In First Baptist, an oil well operator and some mineral rights owners signed an agreement that included a clause allowing for withholding of interest on payments to the mineral rights owners if the latter did not furnish marketable title. See id. at ¶ 2. When the oil well operator withheld interest pursuant to the clause, the mineral rights owners protested that a state law required the interest payments. See id. at ¶ 3. The court held that the statute and the public policy it represented did not override New Mexico's policy favoring freedom of contract. See id. at ¶ 26. The court cited Berlangieri, but only for its general concern with public policy and how courts should weigh that concern against the value of freedom of contract; the court did not examine the six Berlangieri/Tunkl factors, because no liability release was at issue. See id. at ¶¶ 20, 25. Defendants assert that First Baptist's outcome shows that "a court cannot presume that freedom of contract principles should give way, even in the face of a statute that runs contrary to the contractual agreement." Reply at 7. This is surely true in some contexts, but the sentiment in First Baptist was expressed in the context of business contracts, not liability releases. The New Mexico Supreme Court explained in Berlangieri how to analyze liability releases, and First Baptist's pronouncements regarding provisions of business contracts do not undermine this Court's application of Berlangieri in reviewing a liability release.
Defendants point next to a letter opinion and order by The Honorable Second Judicial District Judge Nan Nash. See Reply at 7-8 (citing Hurd v. Eklund, et al. (CV 2010-07400); Doc. No. 202-1). The Hurd case arose from an injury to a man riding in a hot air balloon during a race; he had signed a liability release before participating. Id. at 1. Applying Berlangieri, Judge Nash first found the liability release's language to be sufficiently clear and unambiguous. See id. at 2-3. Judge Nash then quoted the passage from Berlangieri setting forth the six factors, and concluded that "a waiver of liability for a hot air balloon ride does not violate any New Mexico public policy." Id. at 4. However, Judge Nash provided no details on how she applied the factors, so it is impossible to tell which factors she gave more weight. Additionally, apparently no statute was applicable, making the situation in Hurd easily distinguishable from the one in this case. The mere fact that a New Mexico judge upheld a liability release says nothing about whether this Court's application of Berlangieri was incorrect. Any time that courts apply six-factor tests, the outcome will differ with each application, as the courts address different factual scenarios and liability releases. Because of that reality and the fact that Judge Nash's case did not involve a statute like the one that is present in this case, the Court finds that her letter opinion and order are distinguishable and provide the Court with no reason to change its decision in this case.
Defendants also assert that this Court's MEMORANDUM OPINION AND ORDER conflicts with recent orders issued in the United States District Court for the District of New Mexico. See Reply at 9. In support of this argument, Defendants first cite Andron v. Torgerson Motor Sports, L.L.C., in which The Honorable Chief United States District Judge Christina Armijo granted summary judgment to defendants who had obtained a liability release from a plaintiff before she participated in a game of "cowboy poker" at a rodeo. See id. (citing No. CIV 03-789 MCA/WDS). Chief Judge Armijo applied Berlangieri, finding that the liability release was "sufficiently clear to be enforceable," and that only the sixth factor (evaluating defendants' control over plaintiff) weighed in the plaintiff's favor, but not enough to invalidate the release. Andron, No. CIV 03-789 MCA/WDS at 8-10. However, as in Hurd, no statute was applicable, a fact that Chief Judge Armijo took into special account because of the large role played by the relevant statute in Berlangieri. See id. at 8-9.
Defendants argue that "this Court's ruling is difficult to reconcile with Chief Judge Armijo's order in Andron." Reply at 11. Defendants point out that both Andron and the present case involved dangerous activities, but assert that the activity in Andron was of "limited utility," whereas motorcycle safety training is "socially useful." Id. Defendants believe that since Chief Judge Armijo enforced the liability release used for the non-socially useful activity in Andron, this Court can hardly refuse to enforce the liability releases for a socially useful activity, where the providers of the activity need to be, in Defendants' opinion, protected by liability releases in order to be able to continue providing the activity. See id. But, once again, the situations in these two cases are distinguishable. In Andron, indeed, the activity was not a socially useful one, and thus was not, in the words of Berlangieri's second factor, "suitable for public regulation" via statute. 2003-NMSC-024 at ¶ 39. By contrast, the present case involves an activity regulated by the state because it has importance to public safety. Since New Mexico has imposed statutes and regulations governing motorcycle safety, this case is completely different from Andron.
The Court notes that Defendants seem to want it both ways in the assessment of whether motorcycle safety training is "socially useful." First, Defendants argue that such training is not an "essential service" or a "service of great public importance." Amended Motion to Reconsider at 10-13. Later, Defendants contrast the present case with Andron by saying that, unlike the activity in Andron, the activity here was "socially useful." Reply at 11. There is a difference between something being "useful" and "essential," but the Court believes that when New Mexico's Legislature decided to regulate motorcycle safety training, that decision adequately confirmed the service as "suitable for public regulation" under Berlangieri's second factor.
--------
Defendants also cite in passing Mata v. Anderson, 685 F.Supp.2d 1223 (D. N.M. 2010) and Levin v. Airgas Southwest, Inc., 2006 WL 1305040 (D. N.M. 2006), two opinions by The Honorable United States District Judge James Browning. See Reply at 11. In Mata, Judge Browning held that a settlement purporting to release the City of Farmington and its agents from all future claims that might arise from an incident between a citizen and a police officer in the city, contravened public policy. 685 F.Supp.2d at 1258-60. Judge Browning quoted Berlangieri for its six factor analysis, but focused almost exclusively on the second factor, which asks if "[t]he party seeking exculpation is engaged in performing a service of great importance to the public." Id. at 1261-62. Judge Browning concluded that because policing is a critically important service, the liability release could not be enforced, at least as to claims arising after the citizen signed the release. See id. at 1262. Defendants do not elaborate on their comparison between Mata and the present case, except to say that Mata is "not to the contrary" to Judge Armijo's analysis in Andron. See Reply at 11. The Court finds that Mata provides no reason to reconsider the Court's conclusion about the liability releases' enforceability. Mata simply offers another illustration of the variety of situations in which the Berlangieri factors may be applied, and the different conclusions to which courts may come depending on the facts involved.
In Levin, the plaintiff regularly purchased liquid nitrogen from the defendant for the plaintiff's medical practice. See 2006 WL 1305040 at *1-*2. On one occasion a liquid nitrogen tank spewed its contents over the plaintiff, injuring him. See id. at *2. Judge Browning decided that the liability release signed by the plaintiff was enforceable under Berlangieri. See id. at *16. When weighing the public policy factors, Judge Browning found that four of the six factors weighed in favor of the liability release's validity; one factor did not apply and one was neutral. See id. In analyzing the first factor, which assesses the activity's suitability for regulation by the state, Judge Browning noted "the paucity of New Mexico law dealing with the sale of liquid nitrogen." Id. at *14. This makes Levin a very different situation from the present case, where multiple relevant statutes and regulations indicate the State's interest in motorcycle safety training. Id. at *14. As with Mata, Defendants do not explicitly compare Levin to the present case, but the Court views it, like the cases discussed supra, as one more example of how the Berlangieri factors may be interpreted differently in different factual scenarios. In particular, because no statute was relevant in any of the other cases, those cases' analyses of public policy are readily distinguished from the Court's analysis in this case. The Court finds no reason to change its assessment of the factors based on the New Mexico cases presented by Defendants.
5. The Court's Ruling Does Not Impair Either Motorcycle Training or the Use of Liability Releases in New Mexico.
Finally, a running theme in Defendant's Amended Motion to Reconsider and in their Reply is that the Court's ruling "imperils motorcycle training instruction in New Mexico." Amended Motion to Reconsider at 15-17. However, Defendants again cite only California law and simply reiterate arguments previously advanced in the Motion for Summary Judgment. Furthermore, the Court views this thinly veiled threat as a rhetorical scare tactic that has no place in these proceedings. Defendants do not consider possibilities for limiting their liability or redrafting their liability release, but in the Court's view these possibilities are ample and support the Court's belief that its decision will not shut down motorcycle safety training in the state. Defendants have ways to curb their liability, such as altering the liability releases' coverage through redrafting or offering an insurance option to riders in the training course.
Defendants also argue that the Court's ruling undermines all liability waivers and freedom of contract in New Mexico. See Amended Motion to Reconsider at 17-19. Defendants contend that "this Court's reading of the Tunkl factors is so broad that virtually no standard-form liability waiver could be found enforceable." Id. at 19. As with Defendants' other arguments, the Court concludes that Defendants' last argument is not sufficient to justify a change in the Court's analysis. The Court has merely applied the six Tunkl factors to the liability release at hand, as any judge in New Mexico who is confronted with a liability release in the future will do. The Court's analysis in this case will have little bearing on such future analyses, because as the Court has discussed, every new liability release and surrounding situation presents a new set of facts and opportunity for interpretation. This last argument, like Defendants' other arguments, fails to persuade the Court that its analysis of the six factors was incorrect.
CONCLUSION
The Court has carefully considered the arguments and new legal authority put forward by Defendants in their Amended Motion to Reconsider and Reply. The Court concludes, however, that Defendants have failed to demonstrate that the Court should amend its MEMORANDUM OPINION AND ORDER in any way. Defendants have mostly advanced arguments and supporting facts that were available when Defendants filed their Motion for Summary Judgment, and many of which Defendants made in that Motion. The New Mexico cases construing Berlangieri that Defendants belatedly brought to the Court's attention are distinguishable from the present case and do not indicate that there was any error in the Court's original ruling denying Defendant's Motion for Summary Judgment. Accordingly, Defendants' Amended Motion to Reconsider will be denied.
IT IS ORDERED THAT: (1) DEFENDANTS' AMENDED MOTION TO RECONSIDER COURT'S MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 166) is DENIED; and (2) DEFENDANTS' MOTION TO RECONSIDER COURT'S MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT (Doc. No. 161) is DENIED as moot.
____________________________________
SENIOR UNITED STATES DISTRICT COURT JUDGE