IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

JOHN DOE and JANE DOE, ) individually, and as Guardian and )Next Friend of John Doe, a minor, )

)Plaintiffs, )

)v. ) C.A. No. 09C-09-136 JRS

) CEDARS ACADEMY, LLC, and )ASPEN EDUCATION GROUP, INC., )

)Defendants. )

Date Submitted: July 20, 2010Date Decided: October 27, 2010

MEMORANDUM OPINION

Upon Consideration of Defendants’ Motions to Dismiss.

GRANTED.

Joseph J. Rhoades, Esquire, Stephen T. Morrow, Esquire, LAW OFFICE OF JOSEPHJ. RHOADES, Wilmington, Delaware. Attorneys for Plaintiffs.

Norman H. Brooks, Jr., MARKS, O’NEILL, O’BRIEN & COURTNEY, P.C.,Wilmington, Delaware. Attorney for Defendants.

SLIGHTS, J.

1Plaintiffs have used pseudonyms, presumably because of the sensitive nature of theallegations.

2Compl. ¶ 7.

3Compl. ¶¶ 11-20, 26-29, 30-31.

4Compl. ¶¶ 21-25.

5Compl. ¶¶ 32-39.

1

I.

Before the Court is a Motion to Dismiss filed by the Defendants, Cedars

Academy, LLC (“Cedars”) and Aspen Education Group, Inc. (“Aspen”) (collectively

“the Defendants”). The motion seeks an order dismissing the Complaint filed by John

Doe and his mother Jane Doe (collectively “Plaintiffs”),1 in which Plaintiffs allege

that Jane Doe entered into a contract with Cedars to enroll her son in the Cedars

Academy Boarding School (“Cedars Academy”) and that, while a student there, John

Doe was sexually assaulted and threatened by a fellow student.2

The Complaint contains five counts: three counts raise tort-based claims

including negligence, gross negligence, and recklessness;3 one count raises a breach

of contract claim,4 and one count raises a claim that Defendants violated John Doe’s

substantive due process right to bodily integrity.5 Defendants move to dismiss all

counts for lack of subject matter jurisdiction and improper venue, and also based on

a pre-injury release signed by Jane Doe. Defendant Aspen also moves to dismiss for

6Compl. ¶ 2.

7Pls.’ Resp. Defs.’ Mot. to Dismiss Ex. A.

2

lack of personal jurisdiction. Upon review of the motion, and the responses thereto,

the Court determines that the forum selection clause of the operative contract

(selecting California as the exclusive forum) is enforceable as to all of the parties and,

as such, the motion to dismiss this action must be GRANTED.

II.

On September 15, 2007, Jane Doe entered into a contract with Cedars

(hereinafter “the Agreement”) to enroll her minor son, John Doe, as a full time student

at the Cedars Academy in Bridgeville, Delaware.6 Cedars Academy is a private

preparatory boarding school for students who demonstrate a need for academic and

social skill development.7 The Agreement between Ms. Doe and Cedars contained the

following provisions relevant to the controversy sub judice:

5. Assumption of the Risks; Releases and Indemnities: Sponsoracknowledges serious hazards and dangers, known and unknown,inherent in the Program, including but not limited to vocational activities,emotional and physical injuries, illness or death that may arise fromstrenuous hiking, climbing, camping in a natural environment, exposureto the elements, plants and animals, running away from the Program,“acts of God” (nature), physical education activities, water sports, stress,involvement with other students, self-inflicted injuries, and transportationto and from activities. Sponsor understands that in participating in theProgram Student will be in locations and using facilities where manyhazards exist and is aware of and appreciates the risks, [sic] which may

8Agreement ¶ 5.

9Agreement ¶ 15.

3

result. Sponsor understands that accidents occur during such activitiesdue to the negligence of others, which may result in death or seriousinjury. Sponsor and Student are voluntarily participating in the Programwith knowledge of the dangers involved and agree to accept any and allrisks. In consideration for being permitted to participate in the Program,Sponsor agrees to not sue, to assume all risks and to release, holdharmless, and indemnify Cedars and any and all of its predecessors,successors, officers, directors, trustees, insurers, employees ... including,but not limited to, Aspen Education Group, Inc. (collectively all of theseabove persons and entities shall be referred to as the “Released Parties”hereafter) who, through negligence, carelessness or any other causemight otherwise be liable to Sponsor or Student under theories ofcontract or tort law. Sponsor intends by this Waiver and Release torelease, in advance, and to waive his or her rights and discharge each andevery one of the Released Parties, from any and all claims for damagesfor death, personal injury or property damage which Sponsor may have,or which may hereafter accrue as a result of Student’s participation in anyaspect of the Program, even though that liability may arise fromnegligence or carelessness on the part of the persons or entities beingreleased, from dangerous or defective property or equipment owned,maintained, or controlled by them, or because of their possible liabilitywithout fault. Additionally, Sponsor covenants not to sue any of theReleased Parties based upon their breach of any duty owed to Sponsor orStudent as a result of their participation in any aspect of the Program.Sponsor understands and agrees that this Waiver and Release is bindingon his or her heirs, assigns and legal representatives.8

15. Binding Arbitration: Any controversy or claim arising out of orrelating to this contract, except at Cedars’ option the collection of moniesowed by Sponsor to Cedars, shall be settled by binding arbitrationconducted in the State of California in accordance with the rules of theAmerican Arbitration Association;9 and

10Agreement ¶ 21.

11Compl. ¶ 7.

12Id.

13Compl. ¶¶ 7-10.

4

21. Governing Law/Venue: This Agreement, and all matters relatinghereto, including any matter or dispute arising between the parties out ofthis Agreement, tort or otherwise, shall be interpreted, governed andenforced according to the laws of the State of California; and the partiesconsent and submit to the exclusive jurisdiction and venue of theCalifornia Courts in Los Angeles County, California, and any qualified(American Arbitration Association-approved) arbitration service in theState of California, County of Los Angeles, to enforce this Agreement.The parties acknowledge that this Agreement constitutes a businesstransaction within the State of California.10

On September 21, 2007, John Doe began attending Cedars Academy and

residing in one of its dormitories.11 While there, John Doe was propositioned by

another student to perform sexual acts. According to the Complaint, on one or more

occasion, the other student (not named as a defendant or otherwise in the Complaint)

entered John Doe’s dormitory room, threatened him and sexually assaulted him.12

Plaintiffs allege that these sexual assaults resulted in physical and emotional injuries

to John Doe and economic damages to both Plaintiffs.13 A fair reading of the

Complaint indicates that Plaintiffs allege Defendants are liable for their damages both

as a result of having breached the Agreement and having breached common law duties

14See Id. (Counts I through IV).

15Defs.’ Letter Mem. pgs. 1-4.

16Id. at 5.

17Id. at 4.

18Id.

5

of care.14

III.

In support of their motion, Defendants argue that the Agreement is enforceable

against Jane Doe as the signatory and John Doe as a third party beneficiary.15 Because

both parties are bound by the Agreement, Defendants argue that Delaware’s preference

for enforcing choice of forum provisions should prevail when, as here, the selected

jurisdiction (California) has a “material connection” with the transaction.16 Finally,

Defendants assert that the arbitration provision of the Agreement should be honored

because Jane Doe freely entered into the Agreement for the benefit of her minor son

and John Doe received the benefit of the Agreement in the form of student housing,

meals, and education.17 According to the Defendants, he “who accepts the benefits of

the contract, is also bound by any burdens or restrictions created by it.”18

In response, Plaintiffs first argue that the Agreement is not enforceable as to

Jane Doe or John Doe because its “assumption of the risks; releases and indemnities”

provision is invalid as a matter of law. According to Plaintiffs, Delaware courts look

19Pls.’ Resp. Defs.’ Letter Mem. pg. 2.

20Id. at 7.

21Id. at 6-7.

22Id. at 4.

23Id.

6

with disfavor upon clauses which exculpate a party from the consequences of that

party’s own negligence.19 Moreover, Plaintiffs argue that parents do not have the

authority to execute a pre-injury release on behalf of their children. Such pre-injury

releases “deprive children of the legal relief necessary to redress negligently inflicted

injuries,” according to Plaintiffs, and are thus void as against public policy.20 Because

the Agreement contains a pre-injury release provision that purports to release a

minor’s claim, and an invalid indemnification provision, Plaintiffs contend that the

entire Agreement is unenforceable.21

Plaintiffs next argue that even if the Agreement is enforceable against Jane Doe,

it is not enforceable against John Doe because he is not a party to the Agreement. In

this regard, Plaintiffs contend that the Agreement fails to identify John Doe as a party

to the Agreement, that John Doe is not a signatory to the Agreement, and that there is

no language in the Agreement to suggest that Jane Doe was contracting on John Doe’s

behalf.22 Thus, according to the Plaintiffs, the Agreement is between Jane Doe and

Cedars only and does not bind John Doe.23 Plaintiffs further contend that even if John

24Id. at 6.

25Id. at 8-10.

26Id. at 9.

27Id. at 10.

28 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).

7

Doe is considered a third party beneficiary, he is still not bound to the Agreement

because he did not sign it.24

Finally, Plaintiffs assert that the choice of forum and arbitration provisions of

the Agreement are unenforceable against both Plaintiffs because the Agreement is

over-broad and unconscionable.25 The Plaintiffs contend that the Agreement is too

broad because there is no evidence that the parties contemplated “Cedars’ common

law duty to prevent sexual assaults on John Doe or the manner in which breaches of

that duty would be redressed when they entered into the Agreement.”26 In addition,

they argue that the Agreement is unconscionable because “John Doe was in need of

specialized care and Cedars purported to be uniquely qualified to render such care,”

leaving Jane Doe with little choice but to “sign on the dotted line.”27

IV.

In evaluating a Motion to Dismiss under Superior Court Civil Rule 12(b)(6), the

Court must assume all well plead facts in the complaint to be true.28 A complaint will

not be dismissed unless the plaintiff would not be entitled to recover under any

29 Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. 1983).

30 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).

31The Court has considered both Delaware and California law in construing the Agreementgiven the Agreement’s choice of California law. See Leeds v. First Allied Conn. Corp., 521 A.2d1095, 1097 (Del. Ch. 1986); Founding Members of Newport Beach Country Club v. Newport BeachCountry Club, Inc., 109 Cal. App. 4th 944, 955 (Cal. Ct. App. 2003).

8

reasonable set of circumstances susceptible of proof.29 Stated differently, a complaint

may not be dismissed unless it is clearly not viable, which may be determined as a

matter of law or fact.30

V.

Plaintiffs’ Motion and the Defendants’ response implicate the following issues,

which the Court will address seriatim: (A) whether the Agreement is binding as to

Jane Doe; (B) whether the Agreement is binding as to John Doe; (C) whether the pre-

injury release provision renders the entire Agreement unenforceable; and, if not (D)

whether the choice of law, choice of forum, and/or arbitration provisions of the

Agreement are controlling.

A. Jane Doe Is Bound By The Agreement She Entered Into With CedarsOn Behalf Of Her Son

Both Delaware and California measure the formation of a contract by an

objective test.31 Specifically, a contract is formed if “a reasonable person would

conclude, based on the objective manifestations of assent and the surrounding

32Leeds, 521 A.2d at 1101. See also Founding Members, 109 Cal. App. 4th at 955(“California recognizes the objective theory of contracts, under which [it] is the objective intent, asevidenced by the words of the contract, rather than the subjective intent of one of the parties, thatcontrols interpretation.”).

33In re Verilink Corp., 405 B.R. 356, 378 (N.D. Ala. 2009).

34Compl. ¶¶ 21-25.

35Compl. ¶¶ 5 and 22.

9

circumstances, that the parties intended to be bound to their agreement on all essential

terms.”32 At the outset, the Court notes that it is counter-intuitive to seek enforcement

of an agreement that one alleges to be invalid. Stated differently, a party cannot

“simultaneously seek to avoid the contract ... and at the same time sue for damages for

breach of [that] contract ....”33 And yet, this is precisely what the Plaintiffs are

attempting to do in this case.34

Moreover, a reasonable person would conclude that Jane Doe objectively

manifested her assent to be bound by the terms of the Agreement by paying tuition to

Cedars Academy as required by the Agreement and entrusting her son to the school

as contemplated by the Agreement.35 As a person with the capacity to contract, and in

the absence of allegations of fraud, duress, or undue influence, Jane Doe is bound to

362 WILLISTON ON CONTRACTS § 6:44 (4th ed.) (“Because the offeree's action naturallyindicates assent, at least in the absence of an invalidating cause such as fraud, duress, mutualmistake, or unconscionability, where an offeree signs a document it is generally held to be bound bythe document's terms, even if the offeree signs in ignorance of those terms.”). See, e.g., Indus. Am.,Inc v. Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971) (“Where an offeror requests an act in returnfor his promise and the act is performed, the act performed becomes the requisite overt manifestationof assent if the act is done intentionally; i.e., if there is a ‘conscious will’ to do it.”); Main Storage& Trucking Inc. v. Benco Contracting and Eng’g Inc., 89 Cal. App. 4th 1042, 1049 (Cal. Ct. App.2001)(“Every contract requires mutual assent or consent, and ordinarily one who signs an instrumentwhich on its face is a contract is deemed to assent to all its terms.”).

376 Del. C. § 2705 (A person does not have the capacity to contract until he or she reachesthe age of majority); Cal. Fam. Code Ann. § 6700 (West 1994)(“A minor may make a contract ...subject to the power of disaffirmance.”); Cal. Fam. Code Ann. § 6500 (“A minor is an individualwho is under 18 years of age.”).

38Ide v. Brown, 70 N.E. 101, 102 ( N.Y.1904) (“As guardian, we assume that [father] had thepower to provide for her support and maintenance during [daughter’s] minority.”); Pierce v. Soc'yof the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925) (Parents have theliberty “to direct the upbringing and education of children under their control.”); Hohe v. San DiegoUnified Sch. Dist., 224 Cal. App. 3d 1559, 1565 (Cal. Ct. App. 1990)(same).

10

the Agreement she signed with Cedars so that her son could attend Cedars Academy.36

B. John Doe Is Bound By The Agreement Entered Into On His BehalfBy His Mother

The parties focused much of their energy on whether John Doe should be

considered a third party beneficiary of the Agreement. This focus, however, misses the

mark in that it ignores the realities of the relationship between parent and child. As

a matter of law, and as a practical matter, John Doe, a minor, could not obtain a private

boarding school education from a facility like Cedars Academy without his mother

contracting for such services on his behalf.37 As the guardian of John Doe, Jane Doe

was authorized to provide for her minor son’s education in the manner she saw fit.38

39For instance, in this case, Cedars reserved the right to terminate John Doe’s enrollment inCedars Academy if he engaged in “illegal, uncontrollable, or dangerous behavior” or “for any otherreason ... deem[ed] necessary for the protection of [John Doe], any other student(s) or the integrityof Cedar’s program.” Agreement, ¶ 9. This provision implicitly imposes upon John Doe certainobligations to behave in an appropriate manner. If this obligation was deemed by the Court to benon-binding upon John Doe simply because he is a minor, then Cedars, in turn, would lose itsauthority to discharge him or any other student whose behavior justified termination from theprogram. No private school would ever enroll a student under such circumstances.

40Parham v. J.R., 442 U.S. 584, 602 (1979).

11

To conclude that John Doe is not bound by the Agreement’s otherwise

enforceable terms, as Plaintiffs contend, simply because he is a minor would be

tantamount to concluding that a parent can never contract with a private school (or any

other service provider) on behalf and for the benefit of her child. As a practical

matter, no service provider would ever agree to a contract with a parent if a child could

ignore the provisions of the contract that pertain to him without recourse.39 Such a

result is inconsistent with the law's concept of the family which “rests on a

presumption that parents possess what a child lacks in maturity, experience, and

capacity for judgment required for making life's difficult decisions.”40 In this case, as

a parent, Jane Doe was authorized to enter into the Agreement with Cedars on behalf

of her minor son and to bind him to its enforceable terms.

C. Even If The Pre-Injury Release Provision Is Invalid, It is Severableand Does Not Affect The Overall Enforceability Of The Agreement

Plaintiffs argue that parents do not possess the authority to bind their children

41Agreement ¶ 5.

42Pls.’ Resp. Defs.’ Letter Mem. pg. 7.

43Pls.’ Resp. Defs.’ Mot. to Dismiss ¶ 8.

44Compare Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002)(holding that Colorado'spublic policy affords minors significant protections which preclude parents or guardians fromreleasing a minor's own prospective claim for negligence); Hawkins ex rel. Hawkins v. Peart, 37P.3d 1062 (Utah 2001)(holding that a parent cannot release a child's causes of action against a thirdparty before or after an injury); with Sharon v. City of Newton, 769 N.E.2d 738 (Mass.2002)(holding that releases of liability for ordinary negligence involving private parties are valid asa general proposition in the Commonwealth and, thus, it was not contrary to the purposes of the TortClaims Act to allow city to use releases as a precondition for student's participation in voluntary,nonessential activities, such as cheerleading at public school activities); Zivich v. Mentor SoccerClub, Inc., 696 N.E.2d 201 (Ohio 1998) (Holding that mother had authority to bind her minor childto exculpatory agreement in favor of volunteers and sponsors of nonprofit soccer organization, wherecause of action sounded in negligence; agreement could not be disaffirmed by child on whose behalfit was executed).

45See McInerney v. Slights, 1988 WL 34528, *7 (Del. Ch. Apr. 13, 1988)(“... where a contractas negotiated cannot be enforced by reason of a legally-recognized policy, a court should simply[imply] a severability clause in the contract if to enforce such an implied term may be donesensibly.”); Abramson v. Juniper Networks, Inc. 115 Cal. App. 4th 638, 658-59 (Cal. Ct. App.2004)(“Where a contract has several distinct objects, of which one at least is lawful, and one at leastis unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.”).

12

to pre-injury releases.41 According to Plaintiffs, the pre-injury release is invalid,42 and,

therefore, John Doe should not be bound by the balance of the Agreement’s terms.43

It appears that no Delaware court has specifically addressed whether parents can

bind their children to a pre-injury release. Further, it appears that there is a split

among those jurisdictions that have addressed the issue.44 This Court need not weigh

in on behalf of Delaware, however, because even if the pre-injury release is invalid,

the presence of the provision would not render the entire Agreement unenforceable.45

46Orenstein v. Kahn, 119 A. 444, 446 (Del. Ch. 1922) (“Although the consideration isapportioned on the face of a contract, if there be a special agreement to take the whole or nothing,or if the evidence clearly shows that such was the purpose of the parties, the contract should beentire.”).

47Id.

4815 WILLISTON ON CONTRACTS § 45:6 (4th ed.). See also Evans, 872 A.2d at 552 (“Generally,a severability clause is enforceable.”).

49Agreement ¶ 22 (“In the event that any provision of this agreement, or any operationcontemplated hereunder, is found by a court of competent jurisdiction to be inconsistent with orcontrary to any law, ordinance, or regulation, the latter shall be deemed to control and the Agreementshall be regarded as modified accordingly and, in any event, the remainder of this agreement shallcontinue in full force and effect.”).

13

When “determining whether a contract is divisible ... the essential question ... is ‘did

the parties give a single assent to the whole transaction, or did they assent separately

to several things?’”46 If there is evidence that clearly shows that the parties intended

to enter into an integrated contract, then the contract should be read in its entirety.47

In this regard, Delaware courts recognize that “[t]he parties’ intent to enter into a

divisible contract may be expressed in the contract directly, through a severability

clause.”48 The Agreement between the parties in this case contains a clear and

unambiguous severability clause.49 Accordingly, the invalidity of the pre-injury release

would not render the remainder of the Agreement unenforceable.

D. The Choice of Forum Provision is Controlling

Having determined that the pre-injury release provision may be excised, the

Court now turns to the balance of the Agreement to determine if any remaining

50See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196(Del. 1992); Wolf v. Walt Disney Pictures & Television, 162 Cal. App. 4th 1107, 1126 (Cal. Ct. App.2008).

5126 CORBIN ON CONTRACTS § 573 (1960).

14

provisions support the Defendants’ motion. In this regard, the Court’s attention is

drawn immediately to provisions of the Agreement which suggest that the parties

intended to resolve their disputes in California, not Delaware. Not surprisingly,

Defendants interpret these provisions as requiring the Court to dismiss this action so

that Plaintiffs’ claims may be brought in California as intended. Plaintiffs, not

surprisingly, argue that the Agreement’s arbitration and choice of forum provisions

do not apply here. The parties’ differing views of these provisions require the Court

to interpret the Agreement and to determine in which forum this controversy belongs.

Both Delaware and California courts honor the parol evidence rule.50 This rule

provides that “[w]hen two parties have made a contract and have expressed it in a

writing to which they have both assented as to the complete and accurate integration

of that contract, evidence . . . of antecedent understandings and negotiations will not

be admitted for the purpose of varying or contradicting the writing.”51 To ensure

compliance with the parol evidence rule, the court first must determine whether the

terms of the contract it has been asked to construe clearly state the parties’

52Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003)(citing In Re. ExplorerPipeline Co., 781 A.2d 705, 713 (Del. Ch. 2001)); Wolf, 162 Cal. App. 4th at 1126 (“[w]hen acontract is reduced to writing, the intention of the parties is to be ascertained from the writing alone,if possible....”)(citation omitted).

53See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196(Del. 1992)(“A contract is not rendered ambiguous simply because the parties do not agree upon itsproper construction.”); Curry v. Moody, 40 Cal. App. 4th 1547, 1552 (Cal. Ct. App. 1995)(“Whenthe parties dispute the meaning of a contract term, the trial court's first step is to determine whetherthe term is ambiguous ... ”).

54Id. (citation omitted).

55See O’Brien v. Progressive Northern, Ins. Co., 785 A.2d 281, 288-89 (Del. 2001); Wolf,162 Cal. App.4th at 1126.

56Comrie, 837 A.2d at 13 (citations omitted); Wolf, 162 Cal. App. 4th at 1126.

15

agreement.52 In this regard, the court must remember that a contract is not rendered

ambiguous simply because the parties disagree as to the meaning of its terms.53

“Rather, a contract is ambiguous only when the provisions in controversy are

reasonably or fairly susceptible of different interpretations or may have two or more

different meanings.”54 Upon concluding that the contract clearly and unambiguously

reflects the parties’ intent, the court’s interpretation of the contract must be confined

to the document’s “four corners.”55 The court will interpret the contract’s terms

according to the meaning that would be ascribed to them by a reasonable third party.56

As directed by the parol evidence rule, the Court looks first to the Agreement

itself (the text within the “four corners”) to determine if it unambiguously reflects the

parties’ intent with respect to choice of forum. To discern the parties’ intent, the Court

57“An abstract distinction exists between ‘construction’ and ‘interpretation,’ in that‘construction’ is the drawing of conclusions from elements known from, given in, and indicated bythe language used, while ‘interpretation’ is the art of finding the true sense of the language itself ....”17A AM. JUR. 2D CONTRACTS §328.

58Id. at §338.

59Id. at §376.

60Id.

16

has utilized certain settled tenets of contract interpretation.57 The first, and perhaps

most fundamental, tenet of contract interpretation requires the court to render a

“reasonable, fair and practical” interpretation of the contract’s clear and unambiguous

terms.58 In addition, the court must be mindful that “[a] contract should be read as a

whole and every part should be interpreted with reference to the whole, and if possible

should be so interpreted as to give effect to its general purpose.”59 In this regard, the

court must interpret the contract “so as to conform to an evident consistent purpose”

and “in a manner that makes the contract internally consistent.”60

Here, the Agreement’s choice of law and choice of forum provisions are

combined in one paragraph, and together they state, in pertinent part, as follows: “This

Agreement, and all matters pertaining hereto, including any matter or dispute arising

between the parties out of this Agreement, tort or otherwise, shall be interpreted,

governed and enforced according to the laws of the State of California; and the Parties

consent and submit to the exclusive jurisdiction and venue of the California Courts ...

61Agreement ¶ 21.

62Id. at ¶ 17.

17

to enforce this Agreement.”61 After reading this provision, the Court can mine only

two sources of possible ambiguity in relation to the facts sub judice: (1) whether the

choice of forum provision applies only to actions “to enforce the Agreement;” and, if

not (2) whether Plaintiffs’ claims, including their tort claims, “aris[e] out of the

Agreement” such that they implicate the choice of law and choice of forum provisions.

As discussed below, neither of these phrases render the Agreement ambiguous.

As the Court considers whether Plaintiffs’ claims implicate the Agreement’s

choice of forum provision, the Court takes notice of the placement of the semicolon

to separate the choice of law and choice of forum provisions. At first glance, the

semicolon might suggest an intent to separate the two provisions such that one will not

modify the other. And, if the provisions are separated, one might read the choice of

forum provision as applying only to actions “to enforce the Agreement.” But this

reading would run counter to the theme of the entire Agreement, which is designed to

ground all aspects of the parties’ relationship in California. For instance, the

Agreement provides that payments, notices, and correspondence between Jane Doe

and Cedars are to be mailed to a California location;62 disputes between the parties are

to be resolved by arbitration that must occur in California; and California law is to

63Id. at ¶ 21.

64See Reliance-Grant Elevator Equipment Corp. v. Reliance Ball-Bearing Door Hanger Co.,199 N.Y.S. 476, 478 (N.Y. App. Div. 1923) (“If for the comma we substitute a period, and make thephrase an independent sentence, all ambiguity will disappear, and the cancellation proviso willclearly refer to the duration of the agreement, and not to the making of extensions.”). See also 11WILLISTON ON CONTRACTS § 32:9 (4th ed.) (“Attention is often paid to grammar and punctuation indetermining the proper interpretation of a contract, but a court will disregard both grammaticalconstructs and the punctuation used in the written agreement where the context of the contract showsthat grammatical or punctuation errors have occurred.”); 17A AM. JUR. 2D CONTRACTS § 365 (“whilea court, in construing a contract, will give due force to the grammatical arrangement of the clauses,it will disregard the grammatical construction if it is at variance with the intent of the parties asindicated by the contract as a whole.”).

65Eads v. Marks, 39 Cal. 2d 807, 810-11 (Cal.1952). See also N. Am. Chem. Co. v. SuperiorCourt, 59 Cal. App. 4th 764, 775(Cal. Ct. App. 1997); Southgate Recreation & Park Dist. v.California Assn. for Park & Recreation Ins., 106 Cal. App. 4th 293, 301-02, 130 (Cal. Ct. App.2003).

18

apply to all disputes between the parties, whether based in tort or contract.63 Given the

parties’ clear intent to base their relationship in California, the Court will not read the

placement of a semicolon as an intent to limit the scope of the choice of forum

provision.64

The semicolon issue aside, the choice of law/choice of forum paragraph,

according to its terms, applies to all actions that “aris[e] out of the Agreement.” The

question, then, is whether Plaintiffs’ tort and contract claims may properly be said to

“aris[e] out of the Agreement.” “Where there is a contractual relationship between the

parties, a cause of action in tort may sometimes arise out of the negligent manner in

which the contractual duty is performed, or out of a failure to perform such duty.”65

The Agreement mandates that “[o]n the arrival date, [Jane Doe] shall transfer, by a

66Agreement ¶ 3.

67People v. Toney, 76 Cal. App. 4th 618, 621-22 (Cal. Ct. App. 1999)(citing People v.Cochran, 62 Cal.App. 4th 826, 832 (Cal. Ct. App. 1998))(“ The terms ‘care or custody’ do not implya familial relationship but only a willingness to assume duties correspondent to the role of acaregiver.”).

68Eisenmann Corp. v. Gen. Motors Cor., 2000 WL 140781, *7 (Del. Super. Jan. 28, 2000)(citing Elia Corp. v. Paul N. Howard Co., 391 A.2d 214, 216 (Del. Super. 1978)).

19

Power of Attorney ... temporary custody of the Student [John Doe] to Cedars ....”66

From the moment Jane Doe dropped her son off at Cedars Academy, therefore, the

school was entrusted with “duties correspondent to the role of a caregiver.”67 All of

Plaintiffs’ claims, based as they are on an alleged failure to protect John Doe while he

resided in a Cedars Academy dormitory, directly involve Cedars’ contractual

undertaking to care for John Doe as “temporary custod[ian].” As such, the Court is

satisfied that the claims “aris[e] out of the Agreement.”

After reviewing all of the provisions within the four corners of the Agreement,

the Court concludes that the parties intended to consent to the exclusive jurisdiction

of California courts or arbitration panels to litigate their claims. When “there is a

forum selection clause in a contract, even when the venue where the suit is filed is

proper, the court should decline to proceed when the parties freely agreed that

litigation should be conducted in another forum.”68 Unless the forum selection clause

“is shown by the resisting party to be unreasonable under the circumstances,” such

69Id. (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)). Defendants haveargued that the forum selection provision should be enforced if California has a “materialconnection” to the controversy. This inquiry is implicated by a choice of law analysis, but not bya choice of forum analysis. See Weil v. Morgan Stanley DW, Inc., 877 A.2d 1024 (Del. Ch. 2005).

70Id.

71 Elia Corp., 391 A.2d at 216.

72Beyond the pre-injury release provision, Plaintiffs have pointed to nothing in the Agreementto support an unconscionability argument, and the Court has discerned no basis for the argument onits own.

73Eisenmann Corp., 2000 WL 140781 at 7 (citing M/S Bremen, 407 U.S. 1 at 10).

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clauses are prima facie valid.69 A choice of forum provision will be deemed

“unreasonable” only when its enforcement would seriously impair the plaintiff’s

ability to pursue its cause of action.”70 Mere inconvenience or additional expense is

not sufficient evidence of unreasonableness.71

Other than arguing that the Agreement is invalid in its entirety because it is

unconscionable, Plaintiffs do not provide any support for their contention that the

Court should ignore the forum selection clause.72 They have not, for instance, pointed

to any circumstance that would suggest that litigating their claims in California “would

seriously impair [their] ability to pursue [their] cause of action.”73 Having determined

that the Agreement is valid and enforceable as to both Jane Doe and John Doe, the

Court is left with no basis in fact or law to suggest that the forum selection clause

74Here again, Plaintiffs have not argued that their ability to pursue their claims in Californiawould be “seriously impaired,” e.g. by virtue of a statute of limitations that would bar their claimsthere or otherwise, and the Court can fathom no reason why the identical claims sub judice could notbe raised in California.

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seriously impairs the Plaintiffs’ ability to pursue their cause of action.74 Accordingly,

given the well settled law in Delaware that choice of forum provisions are enforceable

absent a showing of unreasonableness, the Court must enforce the provision here and

decline to exercise jurisdiction in this matter.

Since the Court has determined that it should decline to exercise its jurisdiction

over this dispute for the reasons set forth above, the Court need not decide the validity

of the mandatory arbitration provision, nor whether Aspen should be dismissed based

upon a lack of personal jurisdiction. These questions will be left to the California

forum (be it a court or arbitration panel) that ultimately decides this case.

VI.

Based on the foregoing, Defendants’ Motion to Dismiss is hereby GRANTED.

IT IS SO ORDERED.

Joseph R. Slights, III, Judge