Berenson v. USA Hockey, Inc.

— 380 — Opinion by JUDGE FURMAN T1 Annette Berenson appeals the summary judgment in favor of USA Hockey, Inc., and Colorado Iee Hockey Referees Association (collectively, USA Hockey). We affirm. T2 Berenson's appeal requires us to answer a question of emerging relevance in modern contract law: what type of evidence is required to prove that an individual has executed an exculpatory agreement during an online registration process? To answer this question, we analyze Colorado's best evidence rule, CRE 1002. We conclude that, in this case, the best evidence rule does not require production of a copy of the electronically executed agreement to the exclusion of all other proof of agreement to its terms. T3 Berenson, an amateur hockey player, played in an amateur hockey league for several years. Before she could play, the league required her to annually complete the standard player registration on the USA Hockey website. To complete the registration on the website, she had to insert initials on the webpage with a liability waiver and release, signifying her agreement to the terms. T4 Berenson specifically remembers "giving [USA Hockey] a credit card number and them giving me a USA Hockey registration number, and of course, you know, the disclaimers and whatever else is written on the website." T5 Berenson sustained injuries during a USA Hockey-sponsored game. She sued, seeking to hold USA Hockey liable for her injuries. 16 USA Hockey filed a motion for summary judgment, arguing the terms of the liability waiver and release, to which Beren-son agreed when she registered on the USA Hockey website, released it from lability. In response, Berenson argued USA Hockey had not shown that she had executed the waiver and release. While she did not dispute that she completed the online registration process the year she was injured, she attached an excerpt of her deposition where she testified that she could not "remember" if she had specifically agreed to the terms of the waiver and release. T7 In reply, USA Hockey submitted an affidavit from one of its employees who stated that Berenson could not have completed the online registration process without executing the page with the waiver and release. The employee also confirmed that Berenson completed the online registration the year she was injured. T8 Relying on the employee's affidavit, the district court granted USA Hockey's motion for summary judgment, concluding it was undisputed that Berenson could not have completed the online registration without expressly agreeing to the waiver and release contained therein and, thus, no issue of material fact existed as to whether she had executed an exculpatory agreement with USA Hockey. T9 On appeal, Berenson argues that under CRE 1002, the facts stated in the employee's affidavit were inadmissible as a matter of law and should not have been considered by the court. I. Standard of Review {10 Generally, we review a district court's decision to admit evidence for an abuse of discretion. See People v. Welsh, 80 P.3d 296, 303-04 (Colo.2003). A district court's misapplication of the law may constitute an abuse of discretion. (Freedom Colo. Info., Inc. v. El Paso Cnty. Sherriff's Dep't, 196 P.3d 892, 899 (Colo.2008)). %11 Whether the district court misapplied the best evidence rule is a question of law that we review de novo. See, eg., People v. Reed, 216 P.3d 55, 56-57 (Colo.App.2008)(appellate courts review questions involving interpretation of the rules of evidence de novo). The answer to this question informs our review of the court's grant of summary judgment. {12 Appellate review of summary judgment is also de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995); Struble v. Am. Family Ins. Co., 172 P.3d 950, 954 (Colo.App.2007). T13 Summary judgment is appropriate only when the pleadings, affidavits, deposi — 381 — tions, answers to interrogatories, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c), Cont'l Air Lines, Inc. v. Keenan, 781 P.2d 708, 712 (Colo.1987). A material fact is one that may affect the outcome of the case. Struble, 172 P.3d at 955. II. The Best Evidence Rule 114 Berenson contends that a material fact existed as to whether she executed the waiver and release because, under the best evidence rule, the only admissible evidence showing she had done so was a printout of the electronically executed release, which was never produced. We disagree. 15 Codified in CRE 1002, Colorado's best evidence rule provides that "[t] 0 prove the content of a writing ... the original writing is required...." The rule's preference for the original, however, is limited to those cases where the content of a writing-or the writing's actual terms-is directly in issue. See Banks v. People, 696 P.2d 298, 297 (Colo.1985). Because most scholars agree that the primary purposes of the rule are "to prevent error and to guard against fraud in the ascertainment of content," 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 10:17 (8d ed. 2007), the rule's focus on content makes sense. "When a writing ... is offered 'in order to prove its content,' it is apparent that the danger of mistransmission of that content is significant." 2 Kenneth S. Broun, McCormack on Evidence § 284 (7th ed.2013). 116 For these reasons, the best evidence rule does not prohibit a witness from testifying to a fact of which that witness has personal knowledge merely because a written record was also made. See Fed. R.Evid. 1002 advisory comm. notes (Fed. R.Evid. 1002 is substantially similar to CRE 1002). If, however, the fact is contained in a written record and a witness tries to prove the fact by stating what he or she read in the written record, the rule applies, and the written record must be produced. See id. 117 We mention the best evidence rule's restrictions on a witness's testimony because, as noted, USA Hockey offered an affidavit from a witness stating what the registration process required a hockey player to do to register online. But, because USA Hockey did not seek to prove the fact that Berenson executed the waiver and release by stating what this employee read in Berenson's contract, there was no danger of mistransmission of its content, and admission of the employee's affidavit did not run afoul of CRE 1002. Thus, the district court properly considered the employee's affidavit in ruling on USA Hockey's motion for summary judgment. 118 The employee's affidavit, which was based on the employee's personal knowledge of the USA Hockey website's registration process, explained the following: (1) to complete the online registration process, players had to insert initials on the page with a lability waiver and release, signifying agreement to the terms; (2) during the year Ber-enson was injured, she completed the registration process; and (8) therefore, for the year Berenson was injured, she must have agreed to the terms of the waiver and release. We agree with the district court that this affidavit shows no issue of material fact existed as to whether Berenson had executed an exculpatory agreement with USA Hockey. 19 Nevertheless, Berenson contends the initials she entered on the waiver and release webpage are just as much terms or contents of the waiver and release as are its substantive provisions; however, it was undisputed that Berenson could have entered any initial on the webpage, the terms of the contract were not in dispute, and this was not a case involving alleged fraud. Thus, the fact that she executed the waiver and release could have been shown, not just by providing the court with a printed copy of the waiver and release, but also by the witness's testimony that the only way to successfully complete the online registration process involved entering some initials on the waiver and release webpage. T 20 The judgment is affirmed. JUDGE BOORAS concurs. JUDGE DAILEY dissents.