How And Why Americans Engage With Winter Sports Brands: Research Reveals Social Networking Plays A Major Role In Activity
Posted: February 23, 2012 Filed under: Skiing / Snow Boarding | Tags: Harris Interactive, ski area, skiing, snowboarding, social media, Winter sport, winter sports, X Games Leave a comment »
Nearly Half of Winter Sports Participants Recommend Image via Wikipedia Products or Brands to Peers |
Slightly over one in five American adults (21 percent) revealed that they ever participate in any winter sport, according to new research released from IMRE Sports, and conducted on their behalf by Harris Interactive. Among those who ever participate in winter sports, 47 percent make recommendations to their peers about their favorite winter sports products or brands.The research also indicated that among those who ever participate in winter sports, 74 percent use social media sites. Interestingly enough, of that 74 percent, 84 percent utilize the platform to follow brands.Harris Interactive conducted this survey online among 2,292 adult Americans ages 18 and older between December 19 and 21, 2011. The research was spearheaded by the Maryland-based sports marketing agency, IMRE Sports.Coupons and Giveaways atop the type of information Americans prefer from brands via social media channelsThe type of information Americans prefer to receive from brands through social media sites (e.g., Facebook, Twitter) reveals a variety of trends that brands can leverage via promotions and advertising. The research revealed that even more opportunity lies among those Americans who have ever participated in winter sports.Among those who use social media sites and who ever participate in winter sports, coupons (49 percent) and giveaways (41 percent) are the most popular types of information users would prefer to receive from the brands they follow or connect with via social media sites.The research revealed the following statistics among adult Americans who used social media sites, as well as those who used social media sites and ever participated in winter sports:Types of Information / Use social media sites / Use social media sites and participate in winter sportsCoupons, sales or discounts / 45% / 49%
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Mountain Magazine should apologize to the families who will soon lose loved ones because of its latest magazine.
Posted: February 22, 2012 Filed under: Avalanche, Ski Area 1 Comment »Sidecountry? Whoever invented the word should be flogged in downtown Breckenridge.
The winter 2012 edition of Mountain Magazine had its cover headline as “Ski in the Sidecountry: There’s untracked powder waiting out there for you. We have the skis, boards, guides, resorts, and advice you need to get after it.” The editorial director’s article was titled Slacker Lexicology and tried to justify the cover title. Then a two-page article, with numerous mistakes, was inside that was the basis for the cover title. The entire purpose, article and cover were solely used to promote gear in time for the SIA show.
Mountain Magazine: You don’t know what you are writing about.
Cover to cover, there was not one paragraph to support the claim the magazine had advice to “get after it.” That’s probably good because most of the information they provided was wrong. Nor was there anything of substance other than buy this neat clothing and gear, and you can ski out of bounds.
What Mountain Magazine does have is the idea that anything to sell a magazine is worth the effort, even if it kills people.
It is not the resorts that are going to pay the price for this stupidity. It is two groups. The idiots who believe that the other side of the rope is fair game and the Search and Rescue volunteers who will go out in all types of whether to rescue those idiots putting their own life on the line.
Even if resort employees are part of the rescue the resorts not liable, and rightfully so. In most cases when an employee leaves the resort to participate in a SAR, he is no longer working for the resort but now working, as a volunteer for the county sheriff. You should not be liable for what happens outside your boundaries or outside of your control. However, the article sure as heck did not point that out. In fact, the article could lead you to believe that if you paid for a lift ticket to ride up, skiing out of bounds is OK, and you are still protected by the resort.
Sidecountry does not exist. Under the law, you are either inbounds or out of bounds. If you are out of bounds, you have no back up, even if you hired a guide except volunteer SAR. If you are out of bounds, there is no avalanche work, no marked hazards, no place at the bottom of the hill to warm up.
There is backcountry, which has the definition attached to the word that indicates, it’s not a resort. If you go in the backcountry you should have training, a beacon, a shovel, a probe, an airbag and at least one friend who have the same.
The entire issue was devoted to selling gear, allegedly, that you could use out of bounds. The article promised you great skiing if you hired a guide to get there.
The article then talked about UIAGM guides as the people to hire to guide you. UIAGM does not make guides. The article has no clue what it’s writing about with regard to the UIAGM and the “statutes” it developed. The UIAGM has organizations for 17 countries that grand guide status based on the UIAGM to its members. Nor does the magazine understand the Special Use Permits the US Forest Service issues to ski areas operating on USFS land. The writer thinks backcountry gates were opened a decade ago. USFS permits have always required backcountry gates; they’ve never been closed. The only comment in the entire article about the risk is “It’s still wild out there.” Does that mean dangerous or wild like Saturday Night Live?
The article even quoted one company as saying they gave a pledge of “safe return” to its customers. I suspect you still have to sign a release. What happens if you don’t come back safely? My $250 bet is not going to stop an angry spouse who watched their spouse sign up at the resort to go die out of bounds.
On top of that, what type of problems is created using a marketing line of safe return. Two people have already died in-bounds due to avalanches this year and out of bounds you are going to be safe?
What about injury? Out of bounds is not covered by the ski patrol. After you are dragged downhill for miles, if possible, or your wait hours for SAR to arrive, you are still hours from definitive medical care. Is that covered in the article?
Do Something
Normally, I link to the article or the website of the magazine, but in this case, it’s not worth it. Or maybe I won’t dignify the site or degrade my article.
Everyone in the US has the right to access USFS lands. Everyone has the right to study and take classes and learn how not to die out of bounds. Everyone has the right to die. However, when a magazine makes the ordinary reader think they can access the dangerous area by calling it sidecountry or making it sound safe, you are not violating any laws, you are just being schmucks.
Way to exploit the first amendment.
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PR piece with great information on building to climbing a big mountain
Posted: February 21, 2012 Filed under: Mountaineering, Mt. Everest | Tags: Climbing, Everest, IMG, International Mountain Guides, Mount Everest, Mountaineering, Mountains, Nepal, Recreation, Sherpa Leave a comment »
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Start Small (Relatively Speaking) For beginner climbers it’s important to set yourself up for success. Remember you can’t eat an elephant in one bite. We get a lot of “I want to climb Everest….what should I do?” And the answer is always the same: Have you climbed Mt. Rainier? Mt. Baker? Something in the North Cascades? If the answer is no, then we know where we need to start. Unfortunately a lot of folks try to run in crampons before they know how to walk in them. Let’s see if you even like climbing before we get you to the South Col on Everest! Are your knees shot? No excuses…try a trek. Machu Picchu, Everest Base Camp, or even Kilimanjaro! We’ll take care of the weight on your back and the logistics – you just put one foot in front of the other. ________________________________________ |
Ok, I’ve Climbed A Few Things – Now What?
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We hear this a lot: “Last summer I climbed Mt. Rainier and had a blast! The summer before that my wife and I climbed Shuksan and it was super fun. This year we want another challenge – what do you recommend?” This is a great question and one that is fun to answer. Once you’ve got a couple climbs under your belt the world starts opening up. Climbs in Mexico, Ecuador, and Bolivia, or climbs like Mt. Bona, Mt. Whitney, and Chulu Peak, are popular ‘next steps’ after a first or second climb. Many of these programs feature cultural aspects to them, so be sure look at the non-climbing days on the itinerary to see what else you’d enjoy on the program. ________________________________________ |
Bolivia Was Fun, Now Can I Climb Everest?
| Ok, so you’ve climbed a few things and you’ve got you eyes on one of the big guys! It’s important to keep in mind that every mountain is different and can have its own prerequisites. Take Denali for example, success on Rainier in the summer and a high five on the summit of Aconcagua often isn’t enough. A Denali Prep Course on Rainier is needed to get you qualified for Denali. The same goes for Everest, a summit of Rainier and success at altitude in Mexico just doesn’t cut it, whereas going to Cho Oyuto test your lungs at 8000m is often the route of choice for our Everest climbers.The point being, there is no tried and true recipe to the top of the world. Some people just let the cards fall where they may and climb as their vacation, families, and resources allow. Others set long term goals and map out a 5-year plan.
Regardless of what type of climber you are or what your goals may be: if you’re having fun, you’re doing it right. ________________________________________ |
From A Guide’s Perspective: Staying In Shape
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By Jess Culver
Lets face it, it’s hard to stay in shape between seasons. It starts when the Halloween candy comes out, gets even worse come Thanksgiving and hits its peak somewhere between Christmas and New Years. Then, the 1st of the year rolls around and you’re a few pounds guiltier and several pounds heavier. Finding the motivation to shed this weight can be tough. Here are some tips I use between seasons. For me, I know I have to be in good shape when the Rainier season opens, which is probably in the back of a lot of your minds as well. With that in mind, I’ve found that setting small goals between big goals really makes the time go by a lot quicker than the alternative: 4-5 days a week on the hamster wheel. I like to sign up for a few running races in the winter and spring. I’ll start small, maybe a 5k, then work up to a 10k and eventually a half-marathon and then the full 26.2. There are countless programs out there that will set you up for success at these races. They work if you’re honest with yourself and stick to the program. And don’t be intimidated by the people that run these races, they are all smiles and are super supportive to all shapes, sizes and speeds. Trust me, you’ll have a blast. (Read more)
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Medical Minutes by Adventure Medical Kits
Q: What should you do if you find yourself in the mountains without adequate eye protection?
A: Improvise
It is possible to improvise a pair of “sunglasses” that will help protect eyes from ultraviolet light, especially in snow and at elevations above 2500m (8000 feet). Cut small slits in a piece of cardboard (e.g., use one side of a cracker or cereal box) or in a piece of duct tape folded back over onto itself (Fig. 25). The slits should be just wide enough to see through, and no larger than the diameter of the eye. Tape or tie these “sunglasses” around the head to minimize the amount of light hitting the eyes.
If you remember from a previous newsletter snow blindness is a sunburn to the eye that results in a corneal abrasion. It results from exposure to intense ultraviolet radiation at high altitude or while traveling in the snow. At higher elevations, more ultraviolet light is easily reflected off snow. Because signs and symptoms of snow blindness are delayed by about 4 to 6 hours from the time of exposure to the light, victims are unaware that the injury is occurring until it is too late to prevent it. Wearing adequate eye protection (100 percent UV-blocking sunglasses with side protectors) can prevent snow blindness. (read more)
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Information, Education and knowledge prevent a mother from suing a camp and the Girl Scouts
Posted: February 20, 2012 Filed under: Camp for Minors, Case Analysis, Mississippi | Tags: Bedroom, Bunk bed, Cabin, Camp, Child, Girl Scouts, Girl Scouts of America, Recreation, summer camp Leave a comment »Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Besides top bunk of a bunk bed is just not a dangerous instrumentality.
The mother of a thirteen-year old girl sued the Girl Scouts of Gulf Pine Council, Inc., the troop leader of her daughter’s unit and the camp when the girl fell off the top bunk of a bunk bed injuring her. The basis of the suit was the defendant’s actions caused or contributed to the thirteen-year olds fall. After the defendants were dismissed on summary judgment by the trial court the mother appealed claiming the lower court failed to determine the following:
(1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is not a dangerous instrumentality and that Appellees‘ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.
The entire case revolved around what did the injured girl’s mother know?
The mother took her daughter to camp and helped set up her bed the first night. The second night the group moved to another cabin because the first cabin did not have a working refrigerator. The mother was not there for the move or the remaining nights. The girls decided to sleep on the top bunks, even though lower bunks were available.
The second night after the move the third night in total, the thirteen-year old rolled off the bunk and fell suffering injuries.
So?
The first argument was dismissed because there was no legal (causal) relationship between the defendant leader leaving for an errand and the girl falling out of the bunk. No supervision when the girl fell would have prevented her from falling.
The plaintiff then argued, as part of the first appeal argument that the girls should not have been allowed to sleep on the top bunk. However, the court found the plaintiff presented no evidence that bunk beds or sleeping on the top bunk by thirteen-year old girls were dangerous.
The court then looked at whether bunk beds were a dangerous instrumentality. This means that in and of themselves, bunk beds are dangerous. Guns are probably the best example of a dangerous instrumentality. However, the court found that there was no evidence the beds where dangerous on their face. The mother during her deposition testified that she knew her daughter might be sleeping on a bunk bed, expressed no concerns about that fact and did not inform anyone that she did not want her daughter sleeping on the bed.
The court referred to a New York decision that held that an innkeeper is not responsible for the beds, when the parent is the one who chooses whether or not their child can sleep in it.
Finally, the court looked at the failure to warn issue. A land owner owes a duty of care to someone on the land based on the relationship between the land owner and the person. Here, the thirteen-year old was an invitee. A landowner’s duty to an invitee is “exercising reasonable care to keep its premise’s safe, or to warn Jamie [the injured girl] of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care.”
Here again the court had no evidence in front of it showing that bunk beds were dangerous so that the landowner, the camp, needed to inform the mother of the dangers.
So Now What?
What stands out in this case is the fact the mother, and probably the daughter, knew what the daughter was going to do and did not stop those acts. If a parent and a child know and understand what the risk of the activity is, then it is difficult for them to prove that the risks were dangerous. If the risks were dangerous, then why didn’t the mother inform the daughter or the troop leader that she did not want her daughter participating in the particular risks?
Here, the proof came out in a deposition. However, I believe that is relying on luck to hope that discovery will save your case. Better to point out all the risks of the activity to the parents and children and be able to prove that you did point them out.
There are two ways of doing that. The first is to put the risks in a release and have the parents sign the release. This works for single day activities were the risks can be easily identified…..to some extent.
Better to put everything you can on your website. A movie of the cabins showing bunk beds would have also proven the points to the parents and the court. If each cabin is different have the parents look at the cabins that their child is staying in. Always point out that cabins are different and some have other features and numerate the risks.
Do the same with the dining hall, health club, paths and all buildings and activity areas. Give the parents every opportunity to experience the camp without leaving their computer. No matter what you show it will help sell the camp and keep parents informed of the risks.
Proving the parent watched the videos is easy. On all of your literature tell the parents to go to the website and look around. On the release, have the parents agree that they did go to the website and look around.
If you think, the videos are difficult to do, then don’t. Turn it into a project and have the kids make them!
What do you think? Leave a comment.
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Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Posted: February 20, 2012 Filed under: Camp for Minors, Legal Case | Tags: Appeal, Appellant, Bunk bed, Cabin, Camp, Girl Scouts, Girl Scouts of America, Law, MISSISSIPPI, Summary judgment, United States district court Leave a comment »Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Debbie Buck, as mother and natural guardian of Jamie Buck, Appellant, v. Camp Wilkes, Inc.; Girl Scouts of Gulf Pines Council, Inc.; and Deborah Boozer, Appellees.
NO. 2003-CA-01065-COA
COURT OF APPEALS OF MISSISSIPPI
906 So. 2d 778; 2004 Miss. App. LEXIS 1141
December 14, 2004, Decided
PRIOR HISTORY: [**1] COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF TRIAL COURT JUDGMENT: 4/17/2003. TRIAL JUDGE: HON. JERRY O. TERRY, SR. TRIAL COURT DISPOSITION: TRIAL JUDGE GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS DEBORAH BOOZER AND GIRL SCOUTS OF GULF PINES COUNCIL, INC. AND DISMISSED APPELLANTS’ CLAIM WITH PREJUDICE.
DISPOSITION: AFFIRMED.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff mother filed a personal injury action on behalf of her daughter against defendants, a local Girl Scouts council and its troop leader, for injuries sustained when the daughter fell out of a bunk bed at scout camp. The Harrison County Circuit Court, Mississippi, granted defendants’ joint motion for summary judgment. The mother appealed as to the issues of a causal relationship and defendants’ failure to supervise.
OVERVIEW: The mother asserted the trial court erred in finding that there was no causal relationship where the troop leader left the children in a cabin with an assistant troop leader when they went to bed for the night. She also argued that the troop leader and the council failed to properly supervise the situation by not requiring the children to sleep on the bottom bunks, or on bunk beds with side rail protectors. The appellate court agreed with the trial court that the mother did not produce any evidence to indicate negligence. Further, the mother presented no authority to substantiate her claim that the girls should not have been allowed to sleep on the beds without guard rails, or should have been made to sleep on bottom bunks. The appellate court also rejected the mother’s lawyer’s assertion that a bunk bed being used by a 13-year old without guard rails was a dangerous instrumentality, or that the council failed to warn the child of a dangerous condition which it knew, or should have known, existed on their premises.
OUTCOME: The judgment of the trial court was affirmed.
CORE TERMS: bunk bed, bed, summary judgment, girls, sleep, guard, bunk, dangerous instrumentality, genuine, troop, top, issue of material fact, daughter, matter of law, troop leader, use reasonable care, safe place, sleeping, cabin, failed to demonstrate, moving party, record reveals, negligence per se, contributed, evidentiary, deposition, favorable, producing, concealed, leader
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Motions for Summary Judgment > General Overview
Civil Procedure > Summary Judgment > Standards > Appropriateness
Civil Procedure > Summary Judgment > Standards > Genuine Disputes
[HN1] A summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Miss. R. Civ. P. 56(c). All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under Miss. R. Civ. P. 56.
Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
Civil Procedure > Summary Judgment > Standards > General Overview
Civil Procedure > Appeals > Standards of Review > De Novo Review
[HN2] In determining whether the entry of summary judgment is appropriate, the appellate court reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court. The evidentiary matters are viewed in the light most favorable to the nonmoving party. If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed.
Evidence > Procedural Considerations > Burdens of Proof > General Overview
Torts > Negligence > Proof > Elements
[HN3] In a negligence action, the plaintiff bears the burden of producing evidence sufficient to establish the existence of a duty, breach, proximate causation, and damages.
Torts > Negligence > General Overview
[HN4] The Court of Appeals of Mississippi is not prepared to say that a bunk bed being used by a teenager without guard rails is a dangerous instrumentality.
Torts > Negligence > Duty > General Overview
Torts > Negligence > Standards of Care > Reasonable Care > General Overview
Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Invitees > General Overview
[HN5] A premises owner owes an invitee a duty of exercising reasonable care to keep its premises safe, or to warn an invitee of any hidden or concealed perils of which it know, or should know, in the exercise of reasonable care.
Civil Procedure > Appeals > Briefs
Civil Procedure > Appeals > Standards of Review > General Overview
[HN6] Issues cannot be decided based on assertions from the briefs alone. Similarly, a failure to cite legal authority in support of a proposition precludes the appellate court from considering an issue on appeal.
COUNSEL: ATTORNEYS FOR APPELLANT: JAMES CLAYTON GARDNER, DAVID C. FRAZIER, and WILLIAM L. DENTON.
ATTORNEYS FOR APPELLEES: DORRANCE DEE AULTMAN, ROGER T. CLARK, PATRICK R. BUCHANAN, KIMBERLY DAWN SAUCIER ROSETTI, and SAMUEL TRENT FAVRE.
JUDGES: BEFORE KING, C.J., LEE, P.J., AND IRVING, J. KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.
OPINION BY: IRVING
OPINION
[*779] NATURE OF THE CASE: CIVIL – PERSONAL INJURY
IRVING, J., FOR THE COURT:
P1. Debbie Buck filed a personal injury action on behalf of her minor daughter, Jamie, against Camp Wilkes, Girl Scouts of Gulf Pine Council, Inc., and troop leader Deborah Boozer, for injuries sustained when the child fell out of a bunk bed at camp. In her complaint, Buck alleged that the defendants’ negligent conduct caused Jamie to sustain multiple damages. [**2] In response, Boozer filed a motion for summary judgment, and Girl Scouts filed a joinder, adopting Boozer’s motion. On April 17, 2003, after a hearing on the matter, the trial judge granted Boozer and Girl Scouts’s motion and found that Buck failed to show that the defendants’ actions caused or contributed to Jamie’s fall. On May 14, Buck filed a notice of appeal of the judge’s grant of Boozer and Girl Scouts’s motion.
P2. On May 28, Camp Wilkes filed a motion for summary judgment. The trial court entered a final judgment of dismissal, granting Camp Wilkes’s motion, and Buck again filed a notice of appeal. Buck’s first and second appeal were consolidated.
P3. In this appeal, Buck seeks review of whether the trial court committed reversible error (1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is [**3] not a dangerous instrumentality and that Appellees’ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.
[*780] P4. We find no reversible error; therefore, we affirm the trial court’s grant of summary judgment in favor of the Appellees.
FACTS
P5. In June 2000, thirteen-year-old Jamie Buck attended a Girl Scouts camping trip with her troop at Camp Wilkes. The chaperones for the trip were troop leader, Deborah Boozer, and assistant leader, Jenny White. Upon arriving at the camp, Jamie’s mother helped Jamie set up Jamie’s bed. 1 The next day, however, the troop moved to another cabin because their refrigerator was not working. 2 That night, all of the girls decided to sleep on the top bunks, and everyone, except Jamie, pulled their beds together to make a single bed. The following night, Jamie was asleep on the top bunk when she rolled out of her bed and sustained injuries to her face. Boozer was not present at the time of the accident because she had gone to retrieve supplies but had left the troop’s assistant leader with the girls while she was gone. Additional facts will be related during our discussion [**4] of the issues.
1 The camp furnished bunk beds for the girls to sleep on. The beds did not have any guard rails.
2 The second cabin had a similar layout as the first cabin and also had bunk beds for the girls to sleep on.
DISCUSSION AND ANALYSIS OF THE ISSUES
(1)Standard of Review
P6. Buck first contends that by granting the defendants’ summary judgment motions, the trial judge failed to view the facts and issues in the light most favorable to her.
P7. The law is well established with respect to the grant or denial of summary judgments. [HN1] A summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under [**5] the rule.” Lowery v. Guaranty Bank and Trust Co., 592 So. 2d 79, 81 (Miss. 1991) (citing Galloway v. Travelers Ins. Co., 515 So. 2d 678, 682 (Miss. 1987)). [HN2] “In determining whether the entry of summary judgment [is] appropriate, [the appellate court] reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court.” Lowery, 592 So. 2d at 81. “The evidentiary matters are viewed in the light most favorable to the nonmoving party.” Id. “If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed.” Lowery, 592 So. 2d at 81 (citing Newell v. Hinton, 556 So. 2d 1037, 1041 (Miss. 1990)).
P8. A thorough examination of the record reveals that Buck failed to meet her burden of producing significant evidence to rebut the defendants’ showing that no genuine issue of material fact existed. Buck also produced [**6] no evidence to show that the defendants’ breached the established standard of care and that such breach was the cause of Jamie’s injuries. As a result, the trial judge appropriately granted the defendants’ summary judgment motions.
[*781] (2) Breach of Duty
P9. Buck argues that the trial court erred in finding that there was no causal relationship between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed. Buck also argues that Boozer and Girl Scouts failed to properly supervise Jamie and the other minor children by not requiring the children to sleep on the bottom bunks, or at least, on bunk beds with side rail protectors. 3
3 Buck argues that the beds were donated by the U.S. Navy, and therefore the beds were designed for adults, not minors.
P10. [HN3] “In this negligence action, [Buck] bears the burden of producing evidence sufficient to establish the existence of [a] duty, breach, proximate causation, and damages.” Simpson v. Boyd, 880 So. 2d 1047, 1050 [**7] (P 12) (Miss. 2004) (citing Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 794 (Miss. 1995)).
P11. At the conclusion of the motion hearing, the trial judge found that Buck did not produce any evidence to indicate negligence by Boozer or Girl Scouts. We agree with the trial judge’s findings. However, assuming arguendo that Boozer was negligent in leaving the troop with the assistant troop leader, Buck has failed to demonstrate how Boozer’s absence contributed to Jamie’s injuries.
P12. Similarly, Buck has presented no authority that would substantiate her claim that the troop should not have been allowed to sleep on the beds without guard rails, or at least should have been made to sleep on the bottom bunks. Therefore, this argument is without merit.
(3) Dangerous Instrumentality
P13. Buck’s next allegation of error concerns the trial judge’s failure to find that a bunk bed constituted a dangerous instrumentality. The trial judge, relying on the New York case of Rueben v. Olympic Resort, Inc., 24 Misc. 2d 131, 198 N.Y.S. 2d 408 (N.Y. 1960), coupled with Buck’s lack of proof, found no merit in Buck’s contention [**8] that a bunk bed is a dangerous instrumentality. In Reuben, a six-year-old child was vacationing with her family at a hotel when she fell out of the top bunk and was injured. Id. at 409. The bunk bed had no guard rails. Id. Although the court denied the child’s parents recovery on other grounds, it commented that:
This Court is not prepared to state that a bunk bed without a guard rail is a dangerous instrumentality in and of itself. Such a bed, even with a guard rail, might be very dangerous to a child six months of age. Without a guard rail such a bed may be entirely safe for a child of fourteen years. It is for the parents of the child to determine what equipment is necessary or suitable for their own children. The hotel keeper cannot be presumed to know.
Id. at 409-10.
P14. We, like the trial judge and the Reuben court, [HN4] are not prepared to say that a bunk bed being used by a thirteen-year old without guard rails is a dangerous instrumentality. As noted by Camp Wilkes, Buck has failed to show any defect in the design of the bed or offered any evidence that the bed failed to comply with applicable standards, regulations, or guidelines. [**9] Buck even testified in a deposition that she knew what type bed her daughter was sleeping on and that she had no concerns about her daughter sleeping on the top bunk. Buck further stated that she did not inform anyone that she did not want her daughter sleeping on the top [*782] bunk. For the forgoing reasons, we find this issue to be without merit.
P15. Buck also argues that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep and also failed to adequately maintain and inspect its premises in a reasonably prudent manner. Buck further contends that Camp Wilkes failed to warn Jamie of a dangerous condition which the camp knew, or should have known, existed on their premises.
P16. [HN5] Camp Wilkes properly advances that it owed Jamie, as an invitee, the duty of exercising reasonable care to keep its premises safe, or to warn Jamie of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648 (Miss. 1988) (citing Downs v. Corder, 377 So. 2d 603, 605 (Miss. 1979)). However, Camp [**10] Wilkes argues that a bunk bed is an item normally encountered on the business premises of camps like Camp Wilkes and that a bunk bed is not a hidden or concealed peril.
P17. We have already found that a bunk bed is not an inherently dangerous instrumentality. We now find that Buck has failed to demonstrate or show that the bunk bed in question was in any way defective. Therefore, we find no merit in Buck’s argument that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep.
P18. Finally, Buck asserts that the Appellees’ actions constituted negligence per se because Jamie was less than fourteen years old at the time of the accident. The record reveals that Buck failed to cite any case law in support of this proposition. [HN6] “Issues cannot be decided based on assertions from the briefs alone.” Pulphus v. State, 782 So. 2d 1220, 1224 (Miss. 2001) (P 15) (citing Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995)). Similarly, a failure to cite legal authority in support of a proposition precludes this Court from considering the issue on appeal. Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994) [**11] (citing Matter of Estate of Mason v. Fort, 616 So. 2d 322, 327 (Miss. 1993)).
P19. However, notwithstanding Buck’s failure to supply any authority in support of her proposition that allowing a thirteen-year old to sleep in a bunk bed not equipped with guard rails constitutes negligence per se, we refuse to embrace such a proposition. Therefore, we affirm the decision of the trial court granting summary judgment to the Appellees.
P20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.
New American Alpine Club Library Book Club starting in Vermont
Posted: February 19, 2012 Filed under: Uncategorized | Tags: #AAC, AAC Library, American Alpine Club, American Alpine Club Library, Book Club, Books, Libraries, Library, Library and Information Science, Literature, Mountaineering, read Leave a comment »Our focus is to discuss mountaineering literature, new and old, covering the world’s mountains.
Before our first meeting! – Please email me a list of three books you’d like to suggest we read. I’ll collate these suggestions and bring them to the meeting.
First meeting – Wednesday, February 22nd, 7pm, at the Carpenter Carse Library, 69 Ballards Corner, Hinesburg, VT 05461
(Some folks have indicated they may not be able to make this meeting but are still interested in future meetings.)
Agenda/Goals (this first meeting will be organizational in nature, all you need to read is this email!)
Introductions
Who we are
How we became interested in mountain books
What we’ve enjoyed reading
Where we find our books
Do you consider yourself a collector or casual reader?
Etc.
Decide on what to read, perhaps select first three titles
Decide on frequency of meetings (monthly?)
Select next date options (will need to confirm with Library)
(Please send me other thoughts you may have for our agenda. Thanks!)
Library rules – Non-alcoholic drinks are okay.
We should remove our own trash. (Leave no trace!)
The library has just installed a new carpet so they’d like to keep it as clean as possible.
I plan to arrive about 6:45pm to set up tables and chairs.
Feel free to forward this announcement to anyone you think may be interested. I look forward to seeing as many of you there as possible!
Cheers, Greg
Help End the Hit and Run Loophole in Colorado. Support Bicycle Colorado!
Posted: February 17, 2012 Filed under: Bicycle Colorado, Colorado, Criminal Liability, Cycling, Statutes | Tags: Bicycle Colorado, Colorado, Colorado State Patrol, Denver, Driving under the influence, Law Leave a comment »Bicycle Colorado is working hard to make Cycling Safer in Colorado
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Bicycle Colorado announces support for the “End the Hit and Run Loophole” Act (HB12-1084) introduced in the Colorado House by Representatives Kathleen Conti (R) and Rhonda Fields (D). The act will increase the penalty for a hit-and-run crash causing serious bodily injury from a Class 5 felony to a more serious Class 4, removing a dangerous loophole in Colorado law by giving a hit-and-run offense the same penalty as drunk driving.
At present it is better to flee and avoid getting caught drunk than it is to stay at the scene.
Hit-and-run crashes disproportionately affect people who walk and ride bicycles. Bicycle and pedestrian fatalities are four times more likely to be the result of a hit and run than other roadway crashes. The difference between life and death may be the immediate help that is offered at the time of the crash.
The bill will soon be heard in the Judiciary Committee, and we will keep you updated on its progress. For more information, go to the legislative page on our website.
Do Something
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Copyright 2012 Recreation Law (720) Edit Law
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Florida statute that allows a parent to release a minor’s right to sue
Posted: February 17, 2012 Filed under: Florida, Minors, Youth, Children, Statutes | Tags: Child, Children Youth and Family, Family, Florida law, Legal guardian, Minor, Minor (law), parent, Parental Rights, Release Leave a comment »TITLE 43. DOMESTIC RELATIONS (Chs. 741-753)
CHAPTER 744. GUARDIANSHIP
PART III. TYPES OF GUARDIANSHIP
GO TO FLORIDA STATUTES ARCHIVE DIRECTORY
Fla. Stat. § 744.301 (2012)
§ 744.301. Natural guardians
(1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.
(2) Natural guardians are authorized, on behalf of any of their minor children, to:
(a) Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any of said minor children;
(b) Collect, receive, manage, and dispose of the proceeds of any such settlement;
(c) Collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust;
(d) Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and
(e) Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined by s. 710.102, of which the minor is a beneficiary, participant, or owner, without appointment, authority, or bond, when the amounts received, in the aggregate, do not exceed $ 15,000.
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD‘S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE
AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A
POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT,
EVEN IF ( name of released party or parties ) USES
REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A
CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED
BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE
CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT
BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE
GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER
FROM ( name of released party or parties ) IN A
LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO
YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM
THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU
HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND
( name of released party or parties ) HAS THE
RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU
DO NOT SIGN THIS FORM.
(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.
3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.
(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.
HISTORY: S. 1, ch. 74-106; s. 8, ch. 75-166; s. 7, ch. 75-222; s. 1, ch. 77-190; s. 3, ch. 79-221; s. 17, ch. 89-96; s. 22, ch. 92-200; s. 66, ch. 95-211; s. 73, ch. 97-170; s. 11, ch. 2002-195; s. 8, ch. 2005-101; s. 3, ch. 2006-178, eff. July 1, 2006; s. 2, ch. 2010-27, eff. Apr. 27, 2010.
NOTES:
AMENDMENTS
The 2005 amendment by s. 8, ch. 2005-101, effective June 1, 2005, rewrote (2).
The 2006 amendment by s. 3, ch. 2006-178, effective July 1, 2006, in (1), substituted “the surviving parent remains the sole natural guardian even if he or she” for “the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent” in the second sentence and made minor stylistic changes; substituted “Natural” for “The natural guardian or” at the beginning of (2); substituted “amounts received, in the aggregate, do” for “amount involved in any instance does” in the last undesignated paragraph in (2); in (3), inserted “for the benefit of the ward” and substituted “specified” for “provided for” in the first sentence and added the last sentence; and deleted former (4).
The 2010 amendment added (3); redesignated former (3) as (4); and substituted “this section are” for “subsection (2) shall be” in the first sentence of (4).
NOTE.–
Created from former s. 744.13.
FLORIDA STATUTES REFERENCES
Chapter 549. Automobile Race Meets, F.S. § 549.09. Motorsport nonspectator liability release.
Chapter 739. Florida Uniform Disclaimer of Property Interests Act, F.S. § 739.104. Power to disclaim; general requirements; when irrevocable.
Chapter 744. Guardianship, F.S. § 744.387. Settlement of claims.
FLORIDA ADMINISTRATIVE CODE REFERENCES
Chapter 19-11 Procedures for the Public Employee Optional Retirement Program, F.A.C. 19-11.003 Distributions from Frs Investment Plan Accounts.
LexisNexis (R) Notes: Go to Case NotesCASE NOTES Go to Treatises & Analytical MaterialsTREATISES AND ANALYTICAL MATERIALS Go to Law ReviewsLAW REVIEWS
1. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).
2. Despite a father’s claim that Georgia was the home state of his child born out of wedlock for purposes of custody under Fla. Stat. § 61.514 of the Uniform Child Custody Jurisdiction Act, a Florida circuit court had jurisdiction to enter an emergency child pick-up order ex-parte because: (1) the child’s mother was a Florida resident when the child was born, the child was born in Florida, and the mother, after living in Georgia for a time, returned to live in Florida; (2) the order simply enforced the mother’s presumptive rights under Fla. Stat. § 744.301(1) until a court determined otherwise and was not a determination as to the father’s ultimate custody rights; and (3) the emergency order was not inconsistent with O.C.G.A. § 19-2-4(a), O.C.G.A. § 19-7-22(a) and (c), and O.C.G.A. § 19-7-25. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).
3. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).
4. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).
5. Pursuant to Fla. Stat. § 744.301(1) a mother, the non-custodial parent, had a right to custody of her child upon the death of the father, the custodial parent, where the father obtained custody of the 10 month old child when the parents divorced, the father moved with his child and new wife to another county three years after the divorce and actively thwarted the mother’s attempts to visit her child so that the mother was unable to see her child for seven years, and the father’s widow, who sought custody of the child upon the father’s death, was unable to prove by clear and convincing evidence that the mother was unfit. Webb v. Webb, 546 So. 2d 1062, 1989 Fla. App. LEXIS 2951 (Fla. 3rd DCA 1989), review denied by 553 So. 2d 1168, 1989 Fla. LEXIS 1234 (Fla. 1989).
6. Mere fact that a father had enforceable rights and obligations to his child born out of wedlock by virtue of his acknowledgement of paternity did not equate to his having a right to temporary custody superior to the mother’s prior to a court declaration to that effect. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).
7. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).
8. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).
9. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).
10. Where child’s father had executed agreement to pay for child’s required medical care, the hospital was not foreclosed from seeking recovery against the mother under an implied in law contract predicated upon her duty to support her child under Fla. Stat. § 744.301. Variety Children’s Hospital, Inc. v. Vigliotti, 385 So. 2d 1052, 1980 Fla. App. LEXIS 17190 (Fla. 3rd DCA 1980).
11. Admitted father of premature infant girl was a natural guardian of the infant under Fla. Stat. § 744.301(1), despite infant’s illegitimate status; therefore, unwed father was responsible for infant’s necessary emergency medical services. De Costa v. North Broward Hosp. Dist., 497 So. 2d 1282, 1986 Fla. App. LEXIS 10561 (Fla. 4th DCA 1986).
12. Fla. Stat. § 744.301(1) provides that the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction entered an order stating otherwise. Muniz v. State, 764 So. 2d 729, 2000 Fla. App. LEXIS 8142 (Fla. 2nd DCA 2000).
13. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).
1. Florida Civil Procedure, Chapter 9. Amended and Supplementary Pleadings; Pretrial Procedure, § 9-3. Settlements.
2. Florida Estates Practice Guide, Chapter 18 Beneficiaries’ Rights, Part I. Legal Background, § 18.11 Disclaimer of Interest in Property.
3. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.04 Natural Guardians.
4. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.43 Litigation Involving Ward.
5. Florida Estates Practice Guide, Chapter 36 Right to Property of an Intestate, Part III. Forms, § 36.204 Petition for Authorization to Execute Qualified Disclaimer.
6. Florida Estates Practice Guide, Appendix PRG Florida Probate and Guardianship Rules, Part I General, Rule 5.040. Notice.
7. Florida Family Law, Division I Marriage, Chapter 3 Cohabitation, B. Rights and Obligations of Cohabitating Partners and their Children, § 3.11 Rights and Obligations Concerning Children.
8. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, C. Basis for Determinations of Parental Responsibility and Timesharing, § 32.20 Parents’ Rights and Duties.
9. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, D. Effect of Shared Parental Responsibility and Timesharing Determinations, § 32.30 Rights and Duties of Parents.
10. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part II. Practice Guide, B. Preliminary Determinations, § 32.111 Action for Shared Parental Responsibility.
11. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part I. Legal Background, § 33.01 Parents’ Duty to Support Child.
12. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.110 Duty to Support Child.
13. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.116 Child Support Order in Paternity Action.
14. Florida Family Law, Division IV Dissolution of Marriage, Chapter 82 Modification of Child Support, Part I. Legal Background, § 82.03 Practice and Procedure.
15. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.03 Interests and Status of Natural Father.
16. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.06 Father’s Rights to Parental Responsibility and Timesharing.
17. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, B. Establishing Paternity in Paternity Proceeding, § 90.20 Overview of Paternity Proceeding.
18. Florida Family Law, Division V Parent-Child Relationships, Chapter 92 Nonparental Custody, B. Proceedings Involving Nonparental Custody, § 92.10 Type of Proceedings.
19. Florida Family Law, Division VI Other Procedures, Chapter 101 Disabilities of Minority, A. Disabilities of Minority, § 101.03 Other Aspects of Disabilities of Minority.
20. Florida Probate Code Manual, Chapter 1 Intestate Succession, § 1.12 Disclaimer.
21. Florida Probate Code Manual, Chapter 5 Rights of the Decedent’s Children, § 5.13 Disclaimer.
22. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.03 Natural Guardians.
23. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.09 Guardians Ad Litem.
24. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.02 Powers of Natural Guardian.
25. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.04 Powers and Duties of Guardian Ad Litem.
26. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.11 Bringing and Defending Actions; Settling Claims.
27. Florida Probate Code Manual, Florida Probate Rules, Scope.
28. Florida Real Estate Transactions, Part II. The Deed, Chapter 10. Parties to the Deed, § 10.03 Deeds by Minors.
29. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, A. Settlement, 1. Settlement Procedures and Techniques, § 141.06 Statutes Affecting Settlements.
30. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.53 Enforcement and Avoidance.
31. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.54 Release by Natural Guardian for Minor Participating in Activities with Inherent Risks.
32. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 13 Settlement, IV. Entering Into a Settlement Agreement, § 13.19 Authority of Third Persons to Enter Settlement Agreements.
33. LexisNexis Practice Guide: Florida Estate & Probate Practice, Chapter 10 Wills: Administrative Provisions, II. Appointing Fiduciaries, § 10.06 Appoint a Guardian.
34. LexisNexis Practice Guide: Florida Personal Injury, What’s New, Scope.
35. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, I. Overview, § 9.02 Master Checklist.
36. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.36 Checklist.
37. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38 Determine Whether Parent Executed Enforceable Pre-Injury Release.
38. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38B Establish Immunity for Motorsport Activities.
39. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 4 Parties, III. Party Must Have Standing in Action, § 4.08 Standing Generally Requires Party’s Interest in Action.
40. Planning for the Elderly in Florida, Chapter 17 Guardianship, § 17.06 Types of Guardianships.
41. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.03 Legal Background.
42. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.04 Preliminary Determinations.
43. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.02 Research Guide.
44. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.03 Legal Background.
45. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 341.02 Research Guide.
46. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 362.22 Right to Custody of Minor Children.
Go back to the top of LexisNexis (R) NotesLAW REVIEWS
1. Case Comment: Constitutional Law: The Limits of a Patient’s Right to Refuse Medical Treatment, Troy Rillo, April 1994, 46 Fla. L. Rev. 347.
2. Comments: Lagging Behind The Times: Parenthood, Custody, and Gender Bias in the Family Court, Cynthia A. Mcneely, Summer 1998, 25 Fla. St. U.L. Rev. 891.
3. A Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Casesa Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Cases, Caroline E. Johnson, Fall 1993, 21 Fla. St. U.L. Rev. 617.
4. The Minefield of Liability for Minors: Running Afoul Of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.
5. The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.
6. Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls For Statutory Reform, The Honorable Chris W. Altenbernd, Winter 1999, 26 Fla. St. U.L. Rev. 219.
7. Student Work: Redefining Parenthood: Removing Nostalgia From Third-Party Child Custody and Visitation Decisions in Florida, Sarah E. Kay, Fall 2009, 39 Stetson L. Rev. 317.
8. The Validity of Binding Arbitration Agreements and Children’s Personal Injury Claims in Florida After Shea v. Global Travel Marketing, Inc., Douglas P. Gerber, Fall 2003, 28 Nova L. Rev. 167.
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Alaska statute on Parents right to sign away minors right to sue
Posted: February 17, 2012 Filed under: Minors, Youth, Children, Release / Waivers, Statutes | Tags: Adventure travel, Alaska, Department of Health, JimMoss, Minor, Parental Rights, Rock climbing, Waiver Leave a comment »TITLE 9. CODE OF CIVIL PROCEDURE
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CHAPTER 65. ACTIONS, IMMUNITIES, DEFENSES, AND DUTIES
Go to the Alaska Code Archive Directory
Alaska Stat. § 09.65.292 (2012)
Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
(c) In this section,
(1) “child” means a minor who is not emancipated;
(2) “parent” means
(A) the child’s natural or adoptive parent;
(B) the child’s guardian or other person appointed by the court to act on behalf of the child;
(C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;
(D) a person who has a valid power of attorney concerning the child; or
(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;
(3) “provider” has the meaning given in AS 09.65.290;
(4) “sports or recreational activity” has the meaning given in AS 09.65.290.
HISTORY: (§ 2 ch 67 SLA 2004)
NOTES: CROSS REFERENCES. –For findings and legislative intent statement applicable to the enactment of this section, see § 1, ch. 67, SLA 2004, in the 2004 Temporary and Special Acts.
EDITOR’S NOTES. –Section 3, ch. 67, SLA 2004 provides that this section applies “to acts or omissions that occur on or after September 14, 2004.”
USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.
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Arizona limited right for parent to waive child’s right to sue
Posted: February 17, 2012 Filed under: Arizona, Minors, Youth, Children, Statutes | Tags: Animal, Arizona, Arizona State University, Equine, health, Horse, Minor, Parental Responsibility, Parental Rights, Release Leave a comment »
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TITLE 12. COURTS AND CIVIL PROCEEDINGS
CHAPTER 5. LIMITATIONS OF ACTIONS
ARTICLE 3. PERSONAL ACTIONS
Go to the Arizona Code Archive Directory
A.R.S. § 12-553 (2011)
§ 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions
A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:
1. The person has taken control of the equine from the owner or agent when the injury or death occurs.
2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.
3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.
4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person’s representation of his skills, health and experience with and knowledge of equines.
B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.
C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner’s permission is not liable for injury to or death of the equine or the rider or handler.
D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:
1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.
2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.
E. As used in this section:
1. “Equine” means a horse, pony, mule, donkey or ass.
2. “Release” means a document that a person signs before taking control of an equine from the owner or owner’s agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.
HISTORY: Last year in which legislation affected this section: 1998
NOTES:
Premises Liability
SCOPE OF IMMUNITY.
This section does not shield stable owners from claims for negligent supervision, which do not involve horseback riding or activities directly relating thereto. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (Ct. App. 1998).
Grant of summary judgment in favor of the riding stable operator was proper where the document that the rider signed contained sufficient information to have been considered a release; further, this section does not completely deprive injured equine riders of a remedy and thus it does not violate the anti-abrogation clause, Ariz. Const. art. 18, § 6. Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557, 2003 Ariz. App. LEXIS 162 (Ct. App. 2003).
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New 3 day bicycle tour in Colorado leaves more questions than answers
Posted: February 16, 2012 Filed under: Cycling, Interbike | Tags: Interbike Leave a comment »Where, when etc. not available on the website. Also Sponsorships is going to be tough, everyone will be in Vegas for Interbike
Seriously, doesn’t anyone have a calendar anymore? A new 3 day bicycle tour has just been announced in Colorado. However the dates are during the bicycle industry trade show; Interbike. What retailer or manufacture is going to be available?
On top of that there is nothing but a date on the webpage or press announcement. Where is the event going to be held? The name implies a flat ride, (flat as Colorado cyclists understand hills) however no other information is available. The article and the sponsors imply that the ride will be in the northeast part of the state.
See New cycling tour to roll through Colorado Eastern Plains towns
For more information about the ride, go to pedaltheplains.com.
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Headlines about Canada ski injuries is very misleading.
Posted: February 15, 2012 Filed under: Skiing / Snow Boarding | Tags: Canada, Canadian Institute for Health Information, Hockey, Hospital, Ice skating, Ski, Snowmobile, Sport 1 Comment »Actual report does not take into account participants and uses skiing just to get press, not because it is the worst sport.
This study, when you read the headline implies one idea: Skiing is dangerous. When you read the article, you get a completely reverse opinion of what the study reports. More importantly, the study is being used for an agenda rather than a way to either reduce or study injuries.
The study looked at winter sports injuries in Canada. It is a simple study showing how many hospital visits occurred each winter based on various activities. From the study, the headlines looked at these two groups of numbers.
Slopes-Related Injuries 2,300
Hockey Players 1,114
The headline then stated that slope injuries were twice as dangerous as hockey. Right off the bat, though you see an issue. This is just a total number of hospital visits. It means nothing, unless you know how many people participated in the sport or how many hour’s participants spent on the sport. Unless, and it very well may be possible, the number of people skiing and boarding in Canada equaled the number of people playing hockey, then the numbers really don’t point to anything. The numbers definitely do not point out that skiing and boarding is twice as dangerous as hockey.
After some more reading, more numbers pop to the surface.
Snowmobiling 1,126
Ice Skating 889
Tobogganing 171
Snowmobiling creates more hospital stays than hockey. However, hockey is the measurement that the criteria are compared to. Is this because everyone in Canada understands the real risks of hockey? Or is hockey perceived as a dangerous sport.
If the cause for the headline is the latter, then the headline was just made to get your attention. Snowmobiling is half as dangerous as skiing and riding so why was snowmobiling not used as the comparison.
Then the bomb shell drops. All of these sports combined do not make up 10% of the other winter sports injuries.
However, the hospitalization numbers pale in comparison to people who were simply injured by winter activities.
In Ontario alone, the report says, there were more than 45,000 emergency department visits — 285 a day — due to winter activities in 2010-2011.
And that’s just the tip of the iceberg, Fortin says, given that many of the hurt would have visited family doctors, walk-in clinics or just suffered through their injuries.
If you dig through the article, you gather these stats.
|
Slopes-Related Injuries (Skiing/Boarding) |
2,300 |
|
Snowmobiling |
1,126 |
|
Hockey Players |
1,114 |
|
Ice Skating |
889 |
|
Tobogganing |
171 |
|
Total |
5,600 |
5600 injuries in five sports nationwide are nothing compared to 45000 in just one city alone. Twenty days in Ontario and those injuries exceed the ones the false headline was blaring about.
There were some relevant points that could be pulled from the report.
1. Injuries remained relatively constant over the five years of the report for all five sports.
a. However, this number still has more value if compared to the overall number of participants. If participating went up or down that changes the fact the injuries were constant.
2. The age group with the largest number of injuries was young males between the ages of 10 and 19.
3. 33% of the head injuries in all five sports came from skiing and snowboarding.
a. There were 759 head injuries over the past five years on the slopes showing a decrease in head injuries…. Maybe.
So? Think
You cannot take headlines at face value. EVEN MINE! Headlines get you to read the article, and that is their sole purposes. You have to understand what the article is trying to say, where the information that makes up the article comes from and maybe, what is the writer trying to accomplish.
See Skiing injuries lead to twice as many hospital stays as hockey, new data shows
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Research shows beacons have issues with multivictim searches
Posted: February 14, 2012 Filed under: Avalanche, Search and Rescue (SAR), Skiing / Snow Boarding | Tags: Adventure travel, avalanche, Avalanche Beacons, Beacons, Mulit Victim Searches, Mulitvictim Searches, Ski Resort Leave a comment »Problems may be more prevalent with older models of beacons
The issue is that some beacons will mask another beacon. If two victims with beacons are buried in close proximity then you may only see the one victim.
The article and issues are complex and are still be investigated, however if you are a professional or possibly use your beacon in multivictim situations you should read the article.
See Problems with multivictim searches or watch a Video about the issue.
What do you think? Leave a comment.
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This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!
Posted: February 13, 2012 Filed under: Case Analysis, Jurisdiction and Venue, New York, Pennsylvania, Summer Camp | Tags: American Camp Association, Camp, Lawsuit, Medical Malpractice, New York, parent, Physician, summer camp, United States Leave a comment »Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43
I really wish I could find out how this case resolved
This case covers a fact pattern that probably occurs weekly during the summer. The camper started suffering some illness. The camper was treated at camp by the camp physician and camp nurse then sent to a local hospital.
The parents sued the camp, camp physician, camp nurse and the treating physicians at the hospital for medical malpractice. The specific claim against the camp and its nurse and physician was a failure to “…timely recognize and properly care for and treat Jordan’s condition.”
In order to enroll the child in the camp, the parents were required to sign a camp contract. The contract covered many different details but was never identified by the court as a release.
The mother sued the camp in New York for the alleged injuries to her son.
So?
The second paragraph of the camp contract gave the camp permission to treat the child for any medical surgical or dental issues.
If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such as expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing adequate quantities of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps”.
(For other articles looking at the medical issues of camps and outdoor activities see Texas makes it easier to write a release because the law is clear, North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations, ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp, Adult volunteer responsibility ends when the minor is delivered back to his parents.)
The basis of the legal arguments on appeal were the jurisdiction and venue of the lawsuit. (For more articles on venue and jurisdiction see Four releases signed and all of them thrown out because they lacked one simple sentence!, A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit., Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court., The legal relationship created between manufactures and US consumers.). The camp was located in Pennsylvania and the jurisdiction and venue clause required any suit to be in Pennsylvania.
The venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania”
The camp operated out of an office in Pennsylvania in the summer where the camp was located, but it had an office in New York during the winter. When the child was ill, he was taken to a hospital which was located in New York.
The camp, camp nurse and camp physician filed motions to dismiss the complaint based on the jurisdiction and venue clause in the contract. The hospital and other physicians being sued also filed motions to dismiss based on the jurisdiction and venue clause in the contract. The contract stated, “the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party”
To void a jurisdiction and/or venue clause the party opposing it must prove that the clause is:
…unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.
Without proof of such an issue, then jurisdiction and venue clause are valid and enforceable and will not be set aside. The plaintiff did not prove to the court any of the necessary elements to have the clause set aside.
Thus, the contract allowed the court to dismiss the camp, camp nurse and camp physician’s as defendant and force the plaintiff to re-file the lawsuit in the Wayne County Pennsylvania court. “Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable…”
Third Parties – non camp employees
The physicians and hospital argued the language in the contact and the relationship between themselves and the camp then extended the jurisdiction and venue of the contact to them. As such they should be sued in the Common Pleas court of Wayne County Pennsylvania. However, the court found the parties to the original contract, the camp and the parents did not foresee the contract extending that far to third parties.
To reach to third parties in such a case the contract must.
…there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them.
Because the parties to the original contract did not contemplate in their formation of the contract, that hospital and physicians would be part of the agreement, the court could not extend the agreement to them in the suit.
So Now What?
This is a good discussion and points out the importance of having a forum selection clause in your documents and especially your release.
The scary and still unanswered part of the decision is the claims of medical malpractice can still be raised against the camp in Pennsylvania.
Make sure you contact your insurance agent and verify that you would be covered if a medical-malpractice claim is brought against you in a case like this. If you have or employee physicians, nurses or other licensed health care providers, you will need to have specific medical-malpractice coverage to cover them if you are sued. However, coverage for a non-entity such as a camp is rarely written into a policy.
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Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43
Posted: February 13, 2012 Filed under: Camp for Minors, Case Analysis, New York | Tags: Camp, Contract, Forum selection clause, LexisNexis, Medical Malpractice, Motion (legal), New York, New York Supreme Court, New York Supreme Court Appellate Division, summer camp, Supreme Court Leave a comment »Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43
Jordan Bernstein, an Infant, by His Mother and Natural Guardian, Malka Bernstein, et al., Respondents, v Randee Wysoki et al., Appellants, et al., Defendants. (Index No. 20686/07)
2008-06606, 2008-09740
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43
August 24, 2010, Decided
PRIOR HISTORY: Appeals from orders of the Supreme Court, Nassau County (Thomas P. Phelan, J.), entered June 13, 2008 and September 30, 2008. The order entered June 13, 2008, insofar as appealed from, denied that branch of the cross motion of defendants Randee Wysoki, Dina Farrell, Michael Farrell and Gregory Scagnelli to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause. The order entered September 30, 2008, insofar as appealed from, upon reargument, adhered to the original determination and denied that branch of the cross motion of defendant Julie Higgins which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.
Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 10774 (N.Y. Sup. Ct., Sept. 26, 2008)
Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 9483 (N.Y. Sup. Ct., June 10, 2008)
CASE SUMMARY:
PROCEDURAL POSTURE: Defendants, hospital doctors, camp doctor, and nurse, appealed an order by the Nassau County Supreme Court (New York) that, upon reargument, adhered to the original denial of their cross-motions to dismiss a medical malpractice action filed by plaintiffs, mother and child, based on CPLR 501.
OVERVIEW: The mother entered into a contract with defendant sponsor for her child to attend a summer camp in Pennsylvania. The contract gave the sponsor the authority in all medical matters, inter alia, to hospitalize and treat the child if necessary. The contract also provided that venue was in Pennsylvania. When the child developed a pain in his lower abdomen, he was initially treated by the camp doctor and then sent to a hospital where he was treated by the hospital doctors and nurse. Allegedly due to the failure of the defendants to timely recognize and properly care for and treat the child’s condition, he sustained various injuries. The appellate court found, inter alia, that the forum selection clause was valid. However, since nothing in the contract indicated that the sponsor intended to use the hospital doctors and nurse in particular in the event the child required “off-camp” medical services, they lacked a sufficiently close relationship with the sponsor such that their enforcement of the forum selection clause was foreseeable. However, because the camp doctor was the sponsor’s on-site medical employee, she could enforce the forum selection clause under § 501.
OUTCOME: The order was modified by deleting the provision thereof denying the camp doctor’s cross-motion to dismiss, and by substituting therefor a provision vacating that portion of the order; and as so modified, the order was affirmed.
CORE TERMS: forum selection clause, doctor, infant, venue, signatory, inter alia, foreseeable, reargument, sufficiently close, nonsignatory, summer camp, enforceable, assigns, camper, prima facie, action to recover damages, non-signatory, medical malpractice, hospitalize, deprived, practical purposes, applicability, overreaching, beneficiary, nonparty, modified, unjust, refund, summons, bind
LexisNexis(R) Headnotes
Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses
Contracts Law > Third Parties > General Overview
[HN1] Non-parties to an agreement containing a forum selection clause may be entitled to enforce a forum selection clause where the relationship to the signatory is sufficiently close or where the liability of a corporation and an officer is based on the same alleged acts.
Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses
[HN2] A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.
Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses
[HN3] Absent a strong showing that it should be set aside, a forum selection agreement will control.
Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses
[HN4] As a general rule, only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement.
Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses
Contracts Law > Third Parties > General Overview
[HN5] There are three sets of circumstances under which a non-party may invoke a forum selection clause: First, an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a global transaction who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a non-party that is closely related to one of the signatories can enforce a forum selection clause. The relationship between the non-party and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them.
HEADNOTES
Contracts — Construction – Forum Selection Clause — Prima Facie Validity and Enforceability
1. In an action to recover damages for medical malpractice arising out of injuries sustained by the infant plaintiff while at summer camp, the forum selection clause in the summer camp contract between the camp and plaintiff mother was prima facie valid and enforceable. Plaintiffs failed to demonstrate that the forum selection clause was unreasonable or unjust, or that a trial in the selected forum would be so gravely difficult that, for all practical purposes, plaintiffs would be deprived of their day in court. Plaintiffs also failed to allege, let alone demonstrate, that the forum selection clause was the result of fraud or overreaching. Under the circumstances, plaintiffs failed to make any showing, let along a strong showing, that the forum selection clause should be set aside on such bases.
Contracts — Construction — Forum Selection Clause — Applicability
2. The forum selection clause in the summer camp contract between defendant camp and plaintiff mother was applicable in plaintiffs’ action to recover damages for medical malpractice arising out of injuries sustained by the infant plaintiff while at camp. Notwithstanding the placement of the forum selection clause in the paragraph of the camp contract which otherwise pertained to fees, tuition and refund policies, the applicability of the forum selection clause did not turn on the type or nature of the dispute between the parties. Rather, by its express language, the forum selection clause applied to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party.”
Contracts — Construction – Forum Selection Clause — Enforceability
3. The Pennsylvania forum selection clause in the summer camp contract between the camp and plaintiff mother was enforceable in plaintiffs’ action to recover damages for medical malpractice arising out of injuries sustained by the infant plaintiff while at camp even though it did not include any language expressly providing that plaintiffs and the camp intended to grant exclusive jurisdiction to Pennsylvania. The forum selection clause related to both jurisdiction and venue, and employed mandatory venue language.
Courts — Jurisdiction — Enforcement of Forum Selection Clause by Nonsignatory
4. In an action to recover damages for medical malpractice arising out of injuries sustained by the infant plaintiff while at summer camp, the doctors and nurse who treated the infant plaintiff were not entitled to dismissal of the complaint against them based on the Pennsylvania forum selection clause in the summer camp contract between the infant plaintiff’s mother and the camp. Those defendants were not signatories to the camp contract and did not have a sufficiently close relationship with the camp such that enforcement of the forum selection clause by them was foreseeable to plaintiffs by virtue of that relationship. Although plaintiffs had granted authority to the camp and to its “assigns” to hospitalize and treat the infant plaintiff, nothing in the camp contract indicated that the camp intended to use those defendants or the hospital where they worked in the event the infant plaintiff required off-camp medical services. Nor was there anything in the camp contract indicating that the camp intended to use the hospital where those defendants worked–located in a different state from the camp–in the event that the infant plaintiff required medical services.
Courts — Jurisdiction — Enforcement of Forum Selection Clause by Nonsignatory
5. In an action to recover damages for medical malpractice arising out of injuries sustained by the infant plaintiff while at summer camp, defendant doctor, who worked at the camp and treated the infant plaintiff before taking him to the hospital, was entitled to enforce the forum selection clause in the summer camp contract between the infant plaintiff’s mother and the camp, despite defendant’s status as a nonsignatory to the camp contract. The forum selection clause itself applied to any dispute arising out of the agreement or otherwise between the parties to which the camp or its agents was a party. Moreover, the camp’s relationship with defendant, its on-site medical employee, was sufficiently close so that enforcement of the clause was foreseeable.
COUNSEL: [***1] Martin Clearwater & Bell, LLP, New York City (William P. Brady, Timothy M. Smith and Stewart G. Milch of counsel), for appellants.
Napoli Bern Ripka, LLP, New York City (Denise A. Rubin of counsel), for respondents.
JUDGES: REINALDO E. RIVERA, J.P., HOWARD MILLER, THOMAS A. DICKERSON, SHERI S. ROMAN, JJ. RIVERA, J.P., MILLER and ROMAN, JJ., concur.
OPINION BY: DICKERSON, J.
OPINION
[*243] [***2] [**51] Dickerson, J.
Factual Background and the Camp Contract
On or about June 25, 2007 the plaintiff Malka Bernstein (hereinafter Malka) entered into a contract (hereinafter the Camp Contract) with the defendant Camp Island Lake (hereinafter the Camp) for her then 13-year-old son, the plaintiff Jordan Bernstein (hereinafter Jordan), to attend the Camp during summer 2007. The Camp is located in Starrucca, Wayne County, Pennsylvania, where it also maintains a summer office. The Camp maintains a winter office in New York City.
The second paragraph of the Camp Contract provided:
“If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing [*244] adequate quantities [***3] of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps” (emphasis added).
The Camp Contract also contained a forum selection clause. The sixth paragraph of the Camp Contract provided:
“Enclosed with this agreement is $ 1000 per child enrolled in program. Payments on account of tuition (less $ 100 registration fee) will be refunded if requested before January 1st. Cancellations of sessions will not be accepted after January 1st. Thereafter, no refunds will be made. All refunds will be made on or about May 1st. Installments on the balance will be due on January 1st, March 1st, & May 1st. A returned check fee of $ 25 will be applied to all returned checks. These rates are subject to change without notice. Any outstanding balance precludes admission to camp. The [***4] venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania” (emphasis added).
The eighth and final paragraph of the Camp Contract provided, in part, “[t]he parent represents that he/she has full authority [**52] to enroll the camper/to authorize participation in activities/medical care and to contract the aforesaid.”
On or about August 8, 2007, while enrolled at the Camp, Jordan developed a pain in his lower abdomen. The defendants Randee Wysoki and Jill Tschinkel, who were the doctor and registered nurse, respectively, working at the Camp at the time, allegedly cared for Jordan at the Camp before taking him to the defendant Wilson Memorial Regional Medical Center (hereinafter Wilson Memorial), in Johnson City, Broome County, New York, in the vicinity of the Camp. While at Wilson Memorial from August 8, 2007 through August 10, 2007, Jordan allegedly received care and treatment from the defendants Dina Farrell, M.D., Michael Farrell, M.D., Gregory Scagnelli, M.D., Julie Higgins, R.P.A., Patricia Grant, R.N., and [***5] William Kazalski, R.N. Allegedly due to the failure of the defendants to timely recognize and properly care for and treat Jordan’s condition, he sustained various injuries.
[*245] The Instant Action
In November 2007, Jordan and Malka, both as Jordan’s guardian and in her individual capacity, commenced the instant action, inter alia, to recover damages for medical malpractice in the Supreme Court, Nassau County, against, among others, the Camp, Wilson Memorial, “Randy ‘Doe,’ M.D.,” ” ‘Jane Doe’ R.N.,” Dina Farrell, and Michael Farrell. Thereafter, the plaintiffs amended their complaint to substitute Wysoki for the defendant Randy “Doe,” and to add Scagnelli as a defendant.
After joinder of issue, the Camp moved, inter alia, to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract.
The plaintiffs moved for leave to serve an amended summons and complaint to add Higgins and Jill Tschinkel, R.N., as defendants.
The defendants Grant, Kazalski, and Wilson Memorial jointly cross-moved to change the venue of the action from Nassau County to Broome County pursuant to CPLR 510 and 511 (a) on the grounds that the defendants [***6] Grant, Kazalski, Dina Farrell, Michael Farrell, Scagnelli, and Higgins worked and/or resided in, or within approximately 10 minutes of, Broome County, and also because Wilson Memorial was located in Broome County.
The defendants Wysoki, Dina Farrell, Michael Farrell, and Scagnelli (hereinafter collectively the doctor defendants) jointly cross-moved, inter alia, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract. The doctor defendants observed that, pursuant to the last paragraph of the Camp Contract, Malka represented that she had the authority to bind Jordan to the Camp Contract. The doctor defendants further pointed out that the Camp Contract “outlined the terms and conditions of [Jordan's] attendance at the Camp, including any necessary medical care and treatment or care and treatment decisions for [Jordan].” In that regard, according to the doctor defendants, “as all the parties to the instant action either provided care and treatment to [Jordan] at the Camp or at [Wilson Memorial] based on the Camp’s decision as to what care and treatment [Jordan] needed to receive, any litigation [***7] between the parties in this matter is subject to the terms and conditions of the [Camp Contract].”
[*246] Specifically, the doctor defendants argued that Wysoki was covered by the Camp Contract because she “was the physician working at the Camp who sent [Jordan] to [Wilson Memorial]” and thus “is part of this lawsuit through her work at [**53] the Camp.” The doctor defendants further argued that Dina Farrell, Michael Farrell, and Scagnelli were covered by the Camp Contract because they “treated [Jordan] at [Wilson Memorial] pursuant to the Camp’s decision as ‘in loco parentis’ and with the authority granted to the Camp . . . to have [Jordan] treated at a hospital” and thus “became involved in the care and treatment of [Jordan] based on the decision made of the Camp to take [Jordan] to [Wilson Memorial].”
The doctor defendants also argued that the Camp Contract contained a prima facie valid forum selection clause that should be enforced “absent a strong showing that it should be set aside.” The doctor defendants further argued that the forum selection clause, which by its terms applied to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents [***8] is a party,” applied to the instant action, since the plaintiffs’ tort claims depended on the existence of the Camp Contract. In that regard, the doctor defendants noted that “there would be no [tort claims] had [Jordan] not been a camper at the Camp during the Summer of 2007,” and that Jordan “would not have been a camper at the Camp without the terms and conditions of the [Camp Contract] being accepted and agreed to by [Malka].” Finally, the doctor defendants “noted that the Courts have held that [HN1] non-parties to an agreement containing a forum selection clause may be entitled to enforce a forum selection clause where the relationship to the signatory is sufficiently close or where the liability of a corporation and an officer is based on the same alleged acts” (citations omitted).
In an order entered June 13, 2008, the Supreme Court, inter alia, denied that branch of the Camp’s motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause, denied that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause, and granted the plaintiffs’ motion for [***9] leave to serve an amended summons and complaint (2008 N.Y. Misc. LEXIS, 9483, 2008 NY Slip Op 31711[U]).
The doctor defendants appeal, as limited by their brief, from so much of the foregoing order as denied that branch of their cross motion which was to dismiss the complaint based on the forum selection clause.
[*247] The Camp moved for leave to reargue that branch of its motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause. The Camp argued that the Supreme Court “blurred the distinctions between [a parent's] legal ability to bind an infant plaintiff to the terms of a forum selection clause as opposed to a release of liability,” and that, “contrary to a release of liability, the law permits a parent of a minor child who signs a contract with a forum selection clause to bind the minor child to the terms and agreements set forth by the forum selection clause.”
The doctor defendants moved, inter alia, for leave to reargue that branch of their cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause. The doctor defendants argued that the Supreme Court erred in finding that Malka could not bind Jordan to the terms of the Camp Contract, [***10] including the forum selection clause, stating, “[t]he Courts have consistently held that non-signatory infants, who are the subject of and obtain benefit from an agreement signed by the parent, such as a camp enrollment contract, are considered to be third-party beneficiaries for the purpose of enforcing the terms of the contract.” Therefore, according to the doctor defendants, because Jordan “was a [**54] third-party beneficiary of the [Camp Contract] and as the forum selection clause in the [Camp Contract] is valid, the forum selection clause must be found to be applicable to [Jordan's] claims as well as [Malka's claims].”
The doctor defendants further argued that the Supreme Court erred in finding “that there was no factual predicate for the foreseeable enforcement [of the forum selection clause in the Camp Contract] by the non-signatory [doctor defendants].” Specifically, noting that the Camp Contract granted authority ” ‘without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper,’ ” the doctor defendants argued that the Camp “contract itself contemplated and provided the factual predicate for the medical treatment [***11] at issue.”
The doctor defendants argued that they “are exactly the ‘assigns’ that were contemplated by the [Camp Contract], as the same sentence in the contract states that the assigns may ‘hospitalize/treat’ [Jordan] and/or ‘order injections/anesthesia/surgery’ for [Jordan].” Thus, according to the doctor defendants, “the [Camp Contract] is the only mechanism by which [they as non-signatories] were able to ‘hospitalize/treat’ [Jordan] [*248] and, thus, the [Camp Contract] is the only mechanism by which there are claims for the non-signatory hospitalization and treatment at issue.”
The doctor defendants further argued that “there was a sufficiently ‘close relationship’ between the signatories to the [Camp Contract] and the non-signatory [doctor] defendants, to reasonably foresee that [the doctor defendants] or noted ‘assigns’ in the contract would seek to enforce the terms of the contract” (emphasis omitted).
Finally, regarding Wysoki in particular, the doctor defendants argued that the Supreme Court erred in finding “that the same acts are not alleged with regard to the claimed liability of the Camp and Dr. Wysoki.”
At some point in time, the plaintiffs served a supplemental summons and a second [***12] amended summons and complaint, inter alia, adding Higgins as a defendant. Higgins moved, inter alia, to dismiss the complaint insofar as asserted against her based on the forum selection clause.
In an order entered September 30, 2008, the Supreme Court, inter alia, granted leave to reargue to both the Camp and the doctor defendants, and, upon reargument, adhered to its original determination denying the respective branches of the Camp’s motion and the doctor defendants’ cross motion which were to dismiss the complaint insofar as asserted against them based on the forum selection clause (2008 N.Y. Misc. LEXIS,10774, 2008 NY Slip Op 33610[U]). The Supreme Court also denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.
The doctor defendants appeal from so much of the second order as, upon reargument, adhered to the original determination denying that branch of their cross motion which was to dismiss the complaint based on the forum selection clause, and Higgins jointly appeals from so much of the same order as denied that branch of her motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.
Discussion
[HN2] ” ‘A [***13] contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the [*249] selected forum would be so gravely difficult that the challenging party would, [**55] for all practical purposes, be deprived of its day in court’ ” (Stravalle v Land Cargo, Inc., 39 AD3d 735, 736, 835 NYS2d 606 [2007], quoting LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 NYS2d 657 [2006]; see Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 765, 861 NYS2d 820 [2008]; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 790 NYS2d 684 [2005]).
[HN3] ” ‘Absent a strong showing that it should be set aside, a forum selection agreement will control’ ” (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836, 878 NYS2d 793 [2009], quoting Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 272, 557 NYS2d 140 [1990]).
The Forum Selection Clause Is Prima Facie Valid and Enforceable
In Horton v Concerns of Police Survivors, Inc. (62 AD3d 836-837, 878 NYS2d 793 [2009]), considering a forum selection clause under similar circumstances, we concluded,
“Here, the plaintiff failed to make the requisite ‘strong showing’ that the forum selection clause in her employment [***14] agreement, which requires disputes to be decided in the courts of the State of Missouri, should be set aside. Although the plaintiff averred that she is a single mother who resides with her teenaged daughter in Dutchess County, New York, this claim was insufficient, standing alone, to demonstrate that enforcement of the forum selection clause would be unjust. The plaintiff offered no evidence that the cost of commencing a wrongful discharge action in Missouri would be so financially prohibitive that, for all practical purposes, she would be deprived of her day in court. Moreover, the plaintiff did not allege that the inclusion of a forum selection clause in her employment contract was the product of overreaching, and she did not demonstrate that the clause is unconscionable.” (Citations omitted.)
[1] Similarly, here, the plaintiffs failed to demonstrate that the forum selection clause is unreasonable or unjust, or that a trial in Wayne County, Pennsylvania, would be so gravely difficult that, for all practical purposes, they would be deprived of their day in court. Moreover, the plaintiffs failed to allege, let [*250] alone demonstrate, that the forum selection clause was the [***15] result of fraud or overreaching. Under these circumstances, the plaintiffs failed to make any showing, let alone a strong showing, that the forum selection clause should be set aside on such bases (id.; see Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1331-1332, 887 NYS2d 121 [2009]; compare Yoshida v PC Tech U.S.A. & You-Ri, Inc., 22 AD3d 373, 803 NYS2d 48 [2005] [the Supreme Court properly declined to enforce a contractual forum selection clause fixing Tokyo as the forum for any litigation between the parties, since the plaintiff made "a strong showing that a trial in Tokyo would be so impracticable and inconvenient that she would be deprived of her day in court"]).
The Forum Selection Clause Applies to this Action
[2] Further, the forum selection clause applies to the instant tort action. Notwithstanding the placement of the forum selection clause in the sixth paragraph of the Camp Contract, which otherwise pertains to fees, tuition, and refund policies, the applicability of the forum selection clause does not turn on the type or nature of the dispute between the parties. Rather, by its express language, the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the [***16] parties to which the camp or its agents is a party” (see [**56] Tourtellot v Harza Architects, Engrs. & Constr. Mgrs., 55 AD3d 1096, 1097-1098, 866 NYS2d 793 [2008] [rejecting the defendant's claim that the subject forum selection clause in its agreement with the third-party defendant " 'was never intended to apply to third-party claims in personal injury and products liability actions such as . . . plaintiff's action here,' (since) under its broad and unequivocal terms, the applicability of the subject forum selection clause does not turn on the type or nature of the dispute between them; rather, it applies to 'any dispute arising under or in connection with' their agreement"]; see also Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 304, 546 NYS2d 591 [1989] [in a personal injury action to recover damages for negligence, the plaintiffs were bound by a forum selection clause in a camp enrollment contract which provided that "(t)he venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the Village of Hancock, N.Y. Justice Court or the County or State Supreme Court in Delaware County"]).
Jurisdiction and Venue
[3] Moreover, the forum [***17] selection clause is enforceable as a general matter even though it does not include any language [*251] expressly providing that the plaintiffs and the Camp intended to grant exclusive jurisdiction to Pennsylvania. The forum selection clause relates to both jurisdiction and venue, and employs mandatory venue language, providing that the venue of any dispute arising out of the agreement or otherwise between the parties “shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania.” Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable (see Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C., 50 AD3d 185, 187, 851 NYS2d 311 [2008]; John Boutari & Son, Wines & Spirits, S.A. v Attiki Importers & Distribs. Inc., 22 F3d 51, 52 [1994]).
Enforceability of Forum Selection Clause by Nonsignatories
Notwithstanding the fact that the forum selection clause is prima facie valid and enforceable and applicable to the instant tort action as a general matter, this Court must further determine whether the defendant doctors and Higgins, who are not signatories to the Camp Contract, may enforce the forum selection clause.
[HN4] As [***18] a general rule, “only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement” (Freeford Ltd. v Pendleton, 53 AD3d 32, 38, 857 NYS2d 62 [2008]; see ComJet Aviation Mgt. v Aviation Invs. Holdings, 303 AD2d 272, 758 NYS2d 607 [2003]). However,
[HN5] “there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by [**57] virtue of the relationship between them.” (Freeford Ltd. v Pendleton, 53 AD3d at 38-39 [citations [*252] omitted]; see Direct Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *8, 2000 WL 1277597,*3 [SD NY 2000]; [***19] cf. EPIX Holding Corp. v Marsh & McLennan Cos., Inc., 410 NJ Super 453, 463, 982 A2d 1194, 1200 [2009] ["It is clear that in certain situations, a non-signatory to an arbitration agreement may compel a signatory to arbitrate. Since arbitration agreements are analyzed under traditional principles of state law, such principles allow a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel" (citations and internal quotation marks omitted)].)
[4] Here, relying on the provision in the Camp Contract by which the plaintiffs granted authority to the Camp and to its “assigns” in all medical matters, inter alia, to hospitalize and treat Jordan, Dina Farrell, Michael Farrell, Scagnelli, and Higgins claim to have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship. Significantly, however, there is nothing in the Camp Contract indicating that the Camp intended to use Dina Farrell, Michael Farrell, Scagnelli, and Higgins in particular in [***20] the event Jordan required “off-camp” medical services. In fact, there is nothing in the Camp Contract indicating that the Camp intended to use Wilson Memorial–located in a different state from the Camp–and its physicians and physician assistants in the event Jordan required medical services.
Under these circumstances, Dina Farrell, Michael Farrell, Scagnelli, and Higgins do not have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship (cf. Freeford Ltd. v Pendleton, 53 AD3d at 40-41 ["Even a cursory examination of these two agreements makes clear that (defendants) Lane Pendleton and Cairnwood Management had every reason to foresee that (plaintiff) Freeford would seek to enforce the forum selection clause against them"]; Dogmoch Intl. Corp. v Dresdner Bank, 304 AD2d 396, 397, 757 NYS2d 557 [2003] ["(a)lthough defendant was a nonsignatory to the account agreements, it was reasonably foreseeable that it would seek to enforce the forum selection clause given the close relationship between itself and its (signatory) subsidiary"]; Direct [*253] Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *10-14, 2000 WL 1277597, *4-5 [***21] [where "a number of . . . clauses in the Agreement between (plaintiff) Direct Mail and (nonparty) MBNA Direct indicate that the signatories intended the contract to benefit related (nonsignatory defendant) MBNA companies," MBNA Corporation and MBNA America Bank, N.A., were sufficiently closely related to MBNA Direct such that it was foreseeable that they would seek to enforce a forum selection clause contained in the subject agreement]).
[5] Conversely, however, we conclude that Wysoki, as an employee of the Camp, is entitled to enforce the forum selection clause despite her status as a nonsignatory to the Camp Contract. The forum selection clause itself applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party” (emphasis added). Moreover, we find that the [**58] Camp’s relationship with Wysoki, its on-site medical employee, was “sufficiently close so that enforcement of the clause [was] foreseeable by virtue of the relationship between them” (Freeford Ltd. v Pendleton, 53 AD3d at 39). Thus, Wysoki, despite being a nonsignatory to the Camp Contract, was entitled to enforce the valid forum selection clause. Accordingly, [***22] the Supreme Court should have granted that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki based on the forum selection clause.
Conclusion
The Supreme Court properly denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause. However, the Supreme Court improperly, upon reargument, adhered to its prior determination denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.
Accordingly, the appeal from the order entered June 13, 2008 is dismissed, as that order was superseded by the order entered September 30, 2008, made upon reargument. The order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) [***23] and 501 based on the forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008 denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint [*254] insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause and thereupon granting that branch of the cross motion. As so modified, the order entered September 30, 2008 is affirmed insofar as appealed from.
Rivera, J.P., Miller and Roman, JJ., concur.
Ordered that the appeal from the order entered June 13, 2008 is dismissed, without costs or disbursements, as that order was superseded by the order entered September 30, 2008, made upon reargument; and it is further,
Ordered that the order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and [***24] 501 based on a forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause and thereupon granting that branch of the cross motion; as so modified, the order entered September 30, 2008, is affirmed insofar as appealed from, without costs or disbursements.
I’ll be Speaking at the 2012 Association of Independent Camps Conference in Atlanta
Posted: February 10, 2012 Filed under: Uncategorized | Tags: AIC, Association of Independent Camps, Atlanta, summer camp, Youth Leave a comment »
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SPRE Young Professional Network Award Applications Due
Posted: February 9, 2012 Filed under: Society of Parks & Recreation Education (SPRE) | Tags: #Award, #SPRE, Awards, Professional association, Society of Park and Recretaion Educators, Young Professional Network Award Leave a comment »Please spread the word – Applications due March 23, 2012!
An important part of membership in a professional organization is to recognize outstanding members and organizations who have contributed to the field. The Young Professional Network Awards program highlights the efforts of those who go above and beyond to make a difference in the community. Nominate one of your fellow network members for a prestigious Young Professional Network Award. Nominees must be members of our network and can be recognized for their contributions and achievements in the following categories:
*Rising Professional (advances to consideration for Robert Crawford Award)
*Outstanding Graduate Student
*Outstanding Undergraduate Student
*Outstanding Student Club/Organization
In addition, the Network can award a Distinguished Professional who may not be a member of our Network. The minimum requirement for this award is 15 years of experience so if you know of a qualified candidate, then nominate them and let’s recognize their important contribution. The Distinguished Professional Award will advance to the National Awards Committee for NRPA Distinguished Professional consideration.
All applications for the Young Professional Network Awards aredue by Friday, March 23, 2012! Submit your application through the following link:
http://www.nrpa.org/Membership/Awards/Network-Awards/
PSIA-AASI Releases E-Learning Module for Entry Level Instructors
Posted: February 9, 2012 Filed under: Skiing / Snow Boarding | Tags: E-learning, Professional Ski Instructors of America (PSIA), PSIA-AASI, Winter sport Leave a comment »
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In an effort to expand resources for those looking to become snowsports instructors, the Professional Ski Instructors of America (PSIA) and American Association of Snowboard Instructors (AASI) has launched the Entry Level Instructor’s Guide. This new e-learning tool details in easy-to-understand language what to expect in becoming a professional snowsports instructor.
The Entry Level Instructor’s Guide is the first in a series of online e-courses produced by PSIA-AASI that introduces the basics of teaching snowsports, PSIA-AASI as an organization, and PSIA-AASI models and concepts to prospective instructors or newly hired instructors. Each course integrates on-snow video content of snowsports classes in action, as well as downloadable attachments and links for additional research and learning.
“We’re always excited when we launch a new education product, and this one is at the start of a whole new range.” said Earl Saline, PSIA-AASI Professional Development Manager. “As technology has evolved, we are looking at how PSIA-AASI can evolve it’s delivery of education content and we’re excited to improve our online resources with the addition of these e-courses.”
The Entry Level Instructor’s Guide is a 14-minute online course that guides the viewer through a slide show providing an overview of what to expect as a new instructor. With voice-over and video content included, the course is an interactive experience that extends well beyond simply reading text on a screen. This free resource is available to anyone interested in learning more about snowsports instruction through the PSIA-AASI website, TheSnowPros.org.
“Our extension into e-learning came from a desire to provide valuable information for new instructors in a whole new way,” says Saline. “Rather than replace instructor training that a school might provide, the Entry Level Instructor’s Guide is meant to compliment that training for new staff. This piece was developed with members, trainers, and school director input, whose combination of knowledge and experience allowed us to create a great introduction to teaching snowsports that will translate regardless of where an instructor might be working or volunteering.”
What do you think? Leave a comment.
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The helmet issue is so contentious people will say the stupidest things
Posted: February 8, 2012 Filed under: Helmets, Skiing / Snow Boarding | Tags: Heavenly Mountain Resort, Lake Tahoe, Ski, ski season, Snowboard Leave a comment »
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County sheriff deputy reports a helmet would have saved the man’s life, even though he was wearing one and died of blunt force trauma.
In a sad case a snowboarder at Heavenly Mountain Resort avoided another skier and hit a sign post. See Snowboarder from England dies after crash at Heavenly. Another news source also reported the accident and received a quote from the investigating depty. The deputy was quoted in the article:
It is unknown if Perring was wearing a helmet at the time of the accident. A helmet would not have prevented the injuries that led to Perring’s death, Lovell said.
The first and most other reports stated the deceased, Perring was wearing a helmet. At the time of the quote, the newspaper reported the man died of blunt force trauma after hitting the sign, as reported by the deputy.
Perring was skiing on the resort’s Tamarack run about 3 p.m. when he attempted to avoid another skier, left the run and hit a sign post, Lovell said. He suffered blunt force trauma to his chest during the crash.
See Skier dies following collision with sign post at Lake Tahoe resort. Either the reporter was not quoting the deputy correctly (and obviously did not read their own article to put the quote in) or the deputy has been told or decided to say a helmet would have saved the person’s life.
They won’t. So far there have been 13 fatalities at ski areas this season and seven of the deceased were wearing a helmet. One person was not wearing a helmet and five of the reports do not identify if the deceased was wearing a helmet. See Skier/Boarder Fatalities 2011-2012 Ski Season
Do Something
I hope this is bad reporting, editing or something.
Wear a helmet. It will prevent a head injury if you are skiing or boarding. Just remember it will not save your life and it may make you feel more secure leading you to ski or board faster diminishing or eliminating any protection the helmet provides.
Most importantly, think!
What do you think? Leave a comment.
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Crank Brothers Autioning Dreambikes for Charity
Posted: February 7, 2012 Filed under: Cycling | Tags: bicycle, Crank Brothers, Cycling, Dream Bikes, Hans Rey, Mountain bike, Pedals, Sporting Goods Leave a comment »
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Tough fight on a case, release used to stop all but one claim for a CO ski accident
Posted: February 6, 2012 Filed under: Case Analysis, Colorado, Colorado Skier Safety Act, Professional Ski Instructors of America (PSIA), Release / Waivers, Skiing / Snow Boarding, Youth Program or Organization | Tags: Adventure travel, AEE, Alpine skiing, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Camp Fire USA, Colorado, Lawsuit, Marketing, PSIA, Standards, Summary judgment Leave a comment »Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234
But for an outrageous expert opinion, the release would have ended this lawsuit.
This case is a lawsuit against Breckenridge Outdoor Education Center (BOEC) and two of its employees by a disabled skier. Also sued was the manufacturer of the bi-ski, a device that allows people with no mobility to experience skiing. BOEC is a non-profit that provides tons of great services for people, most of whom are disabled. In this case, the plaintiff was a “legally blind, cognitively delayed, and physically limited by cerebral palsy” minor.
The plaintiff went to BOEC with a group people from Kansas, the Adventure Fitness Program at Camp Fire USA. Before going on the trip the plaintiff’s mother signed the necessary documents, including a release and reviewed the marketing and other information provided to her. Upon arrival, the plaintiff was taken to Breckenridge Ski Area with two BOEC employees. She was skiing in a bi-ski with the two defendant skiers. One was a lookout or later termed blocker in the case and one held tethers, which controlled the bi-ski.
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On the second run, the three were skiing down a blue or intermediate ski run. A third party not part of the suit lost control and skied between the defendant employee and the bi-ski into the tethers. This separated the BOEC employee from the bi-ski. The bi-ski proceeded down the ski slope, out of control hitting a tree. The injuries to the plaintiff were not described.
The plaintiff through her mother sued the bi-ski manufacture, BOEC and the two BOEC employees. The plaintiff claimed four counts of negligence per se because of violations of the Colorado Skier Safety Act against the defendant employee who was holding the tethers. (To see a definition of Negligence Per Se under Colorado law see Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability.) The plaintiff argued another claim sounding in “negligence, willful and wanton, reckless, and/or gross negligence” against BOEC. The remaining claims were against the manufacturer of the bi-ski which was dismissed in another action not the subject of this opinion.
This motion was a motion for Summary Judgment filed by BOEC to eliminate the fifth claim, the negligence, willful and wanton, reckless, and/or gross negligence of BOEC.
Validity of a Release for a minor signed by a parent under the CO Statute
The court first looked at the requirements for a release signed by a parent to be upheld under Colo. Rev. Stat. § 13-22-107, generally that the parent’s signature must be voluntary and informed. Prior to this decision, the only case that has taken a look at this issue was Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) which I reviewed in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.
In Wycoff, the release signed by the mother for the child was not upheld. The Wycoff release only had one sentence referring to releasing any claims. Here, the BOEC release had a minimum of six paragraphs informing the plaintiff’s mother that she was waiving her daughter and her legal rights.
Colorado law does not require the specific use of the word negligence in a release. However, all Supreme Court decisions to date had some language referencing waiving personal injury claims based on the activity the release covered.
The court concluded that the plaintiff’s mother signed a document that was clearly identified as a release, and thus she signed it voluntarily.
The court then looked at the release to see if it informed the plaintiff’s mother of the risks of the activity. The release had one full page that explained in detail the degree of risk involved in the BOEC programs. On top of that, the plaintiff’s mother had called and talked to the staff at BOEC as well as the staff of Adventure Fitness Program at Camp Fire USA that was taking her daughter on the trip.
After all of this, the plaintiff’s mother the court concluded was informed of the risks of the trip and the activity.
Validity of the Release
The court started by reviewing the Colorado requirements on how a release will be reviewed under Colorado law. This is fairly standard in all legal decisions.
Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, (Colo. App. March 31, 2011) (Reviewed here in Release stops suit for falling off horse at Colorado summer Camp.)
The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)
Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)
To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093
BOEC bears the burden of proving each of these elements
The court then went through each of the four steps to make sure this release met the requirements.
(i) there must not have been an obvious disparity in bargaining power between the releasor and releasee;
(ii) the agreement must set forth the parties’ intentions in clear and unambiguous language;
(iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and
(iv) the agreement may not violate public policy
Other courts had found that recreation services are not essential services and there is no unfair bargaining advantage in these types of services. Those recreational services in Colorado where courts had made this decision included mountain biking, bicycle rental, skydiving, handicapped downhill ski racing, and rental of ski equipment.
The issue of whether the party’s intentions are clear and unambiguous requires a review of the document. To do that the court looked at the requirements for a contract in general. (A release is a contract, an agreement between two parties with consideration flowing between the parties.) “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.“
In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.
The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.
Here, the release was written in simple and clear terms that were free from legal jargon, not inordinately long and/or complicated. Finally, the fact that the plaintiff’s mother indicated she understood the release satisfied this requirement.
The third requirement requires that the contract be fairly entered into. That means that one party is not so obviously disadvantaged that they are at the mercy of the other party. Because recreational activities are not essential services, and those services can be found through other parties who offer them this requirement is always met in the recreational setting. Essential services are those necessary for life. Examples are public transportation, utilities or food.
The last requirement is that the release does not violate public policy. This means that the release does not waive a duty of BOEC’s which cannot be waived. Again, recreational services do not make up a public policy or violate a public policy. In fact, under Colorado law, the public policy is to support recreational activities and thus have parent’s sign releases.
The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities. Colo. Rev. Stat. § 13-22-107(1)(a)(VI)
Was there a Material Misrepresentation or Fraud in the Inducement in the relationship between the plaintiff and her mother and the defendant BOEC.
or
Marketing makes promises that Risk Management must pay for.
A release is voidable if it was secured based on a material misrepresentation or fraud in the inducement. Here, the plaintiff argued that BOEC claimed it met the highest standards of the Association of Experiential Education (AEE), which it did not. The plaintiff claimed that BOEC claimed that it was accredited by AEE when it was not, and it met the standards of AEE for adaptive ski programs when there was not any standard for that program.
BOEC stated that at the time of the accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. BOEC also admitted that at the time of the accident the accreditation was for other programs of BOEC, and that AEE did not accredit adaptive ski programs.
Based on these two representations, the plaintiff then argued that BOEC misrepresented itself to the plaintiff.
To establish fraud, a plaintiff has to prove that
(1) a fraudulent misrepresentation of material fact was made by the defendant;
(2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false;
(3) the plaintiff relied on the misrepresentation;
(4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and
(5) the reliance resulted in damages.
Here, the plaintiff could not prove that it relied on the misrepresentations of the BOEC and that the reliance was justified. The court did not find that BOEC had not misrepresented itself or its credentials. The court found the plaintiff had not proven reliance the final step needed to prove fraud.
The court also found that BOEC had not misrepresented the facts to the extent needed to be an intentional fraudulent misrepresentation.
At the time, BOEC followed the adaptive ski standards of the Professional Ski Instructors of America, (PSIA). BOEC was accredited by AEE for its other programs. The letter which had the critical information in it about standards, and accreditation was a letter used for all BOEC programs.
Was the conduct of the parties Willful and Wanton rising to the level of Gross Negligence?
This is always an issue when a release is signed because if the actions of the defendant rise to this level than the release cannot be used to stop claims for gross negligence or intentional acts.
“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.”
The court then reviewed the opinion of the plaintiff’s expert witness. His report labeled the BOEC program as inherently unsafe and went on from there. (See Come on! Expert’s will say anything sometimes.)
Based on the expert witness report, the court did not dismiss the last claim of the plaintiffs for gross negligence. The opinion of the expert raised enough facts to create an issue that could not be decided by the court.
All but this final claim was dismissed by the court.
A well-written release in this case almost won the day; it definitely took a lot of fight out of the plaintiff’s case. The only issue the release could not beat was an outrageous opinion by the plaintiff’s expert witness.
So Now What?
1. Don’t make the court look for a clause to support your release. Put in the release the magic word negligence and that the signor is giving up their legal rights for any injury or claims based on your negligence. Here, the court was able to find six paragraphs that did the same thing. You can eliminate a few paragraphs if you are up front and honest. You are giving up your right to sue me for any claim or loss based on my negligence.
2. Identify your document as a release. The court based its decision upholding the release based on the language in the release, and because it was labeled a release.
3. If you communicate with a client in advance of the activity about the risks or the release, make a note of it. This again was important to the court in proving the mother was not misled and knew what she was signing.
4. Besides specifically informing the signor of the fact they are giving up their right to sue, your release needs to point out the risks of your activity. Here, the court points out the page long list of risks as important in upholding the release. Too many releases do not include the risks.
5. Make it easy for your guests to contact you and ask questions about your release, your activity and the risks. Again, the court pointed this out as a specific issue that was important in the court finding for the defendant in this case.
6. The burden on proving that the release meets the requirements needed in a specific state is on the defendant. Consequently, it behooves the defendant recreation provider to place those requirements in the release so the plaintiff, upon signing, helps prove the document is valid.
7. Marketing sinks more ships in the outdoor recreation industry than injuries. Make sure your marketing matches who you are and what you do, and that you are not misrepresenting who you are and what you can do. In this case, BOEC escaped a disaster with its marketing of standards and accreditation that either did not exist, or that it did not have.
What do you think? Leave a comment.
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Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234
Posted: February 6, 2012 Filed under: American Association of Snowboard Instructors (AASI), Colorado, Colorado Skier Safety Act, Legal Case, Professional Ski Instructors of America (PSIA), Release / Waivers, Ski Area, Youth Program or Organization | Tags: AEE, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Breckenridge Ski Resort, Colorado, Colorado Ski Safety Act, Denver, Federal Rules of Civil Procedure, Minor, PSIA, Release, Summary judgment, United States Magistrate Judge Leave a comment »Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234
Kimberly N. Squires, by and through her Guardian and Natural Parent, LYLE K. Squires, Plaintiff, v. James Michael Goodwin, an individual, Breckenridge Outdoor Education Center, a Colorado corporation, and Mountain Man, Inc., a Montana corporation, Defendants.
Civil Action No. 10-cv-00309-CBS-BNB
United States District Court For The District Of Colorado
2011 U.S. Dist. LEXIS 129234
November 8, 2011, Decided
November 8, 2011, Filed
Prior History: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 128565 (D. Colo., Nov. 7, 2011)
CORE TERMS: ski, bi-ski, skiing, misrepresentation, willful, reckless, citations omitted, exculpatory, deposition, wanton, trip, instructor, adaptive, omission, outdoor, summary judgment, wilderness, public policy, bargaining, mountain, knot, recreational, disability, recklessly, daughter’s, sit-down, entity, lesson, negligence claim, precautions
COUNSEL: [*1] For Kimberly N. Squires, by and through her guardian and natural parent, Lyle K. Squires other, Lyle K. Squires, Plaintiff: Colleen M. Parsley, LEAD ATTORNEY, Gregory A. Gold, Gold Law Firm, L.L.C, Greenwood Village, CO; Richard Waldron Bryans, Jr., Bryans Law Office, Denver, CO.
For James Michael Goodwin, an individual, Defendant: Gary L. Palumbo, Bayer & Carey, P.C., Denver, CO.
For Breckenridge Outdoor Education Center, a Colorado corporation, Defendant: Deana R. Dagner, Joan S. Allgaier, John W. Grund, Grund Dagner, P.C., Denver, CO.
JUDGES: Craig B. Shaffer, United States Magistrate Judge.
OPINION BY: Craig B. Shaffer
OPINION
MEMORANDUM OPINION AND ORDER
This civil action comes before the court on Defendant Breckenridge Outdoor Education Center’s (BOEC’s) Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52). On September 16, 2010, the above-captioned case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. 636(c), Fed. R. Civ. P. 73, and D.C. COLO. LCivR 72.2. (See Doc. # 42). The court has reviewed the Motion, Ms. Squires’ Response (filed January 6, 2011) (Doc. # 56), BOEC’s Reply (filed January [*2] 24, 2011) (Doc. # 61), BOEC’s Notice of Supplemental Authority (filed April 18, 2011) (Doc. # 76), Ms. Squires’ Response to BOEC’s Notice of Supplemental Authority (filed May 12, 2011) (Doc. # 81), Ms. Squires’ Reply Memorandum Brief Regarding Misrepresentation (filed May 30, 2011) (Doc. # 84), BOEC’s Surreply Brief regarding Misrepresentation (filed June 6, 20110) (Doc. # 89), the affidavit, the exhibits, the arguments presented at the hearing held on July 20, 2011, and the entire case file and is sufficiently advised in the premises.
I. Statement of the Case
Ms. Squires’ claim against BOEC arises out of a ski accident (“the Accident”) that occurred at Breckenridge Ski Resort, Colorado on February 13, 2008. BOEC is a nonprofit Colorado corporation that provides outdoor experiences for people with disabilities. (See SAC (Doc. # 13) at 2-3, ¶ 6; Scheduling Order (“SO”) (Doc. # 40) at 7 of 15 (Undisputed Facts)). At all relevant times, Ms. Squires was 17 years old, legally blind, cognitively delayed, and physically limited by cerebral palsy. (See SAC at 1-2, ¶ 2).
BOEC employed Jennifer Phillips as a para-ski instructor at the time of the Accident. (See SO at 7 of 15). On the morning of [*3] the Accident, Ms. Squires was paired with Ms. Phillips and placed in a bi-ski. (See id.). The bi-ski was manufactured by Defendant Mountain Man. (See id.). Ms. Phillips and Ms. Squires went to Peak 9 at Breckenridge Ski Resort. (See id.). Ms. Phillips utilized tethers as a means to control the bi-ski. (See SAC at 5 of 13, ¶ 16). On their second run, Ms. Squires and Ms. Phillips skied down Cashier trail. (See SO at 7 of 15). Defendant Goodwin was also skiing down Cashier trail. (See id.). Defendant Goodwin lost control and skied into the tethers between Ms. Squires and Ms. Phillips. (See Goodwin Deposition, Exhibit B to Motion (Doc. # 52-2), at 2, 3 of 3). Due to the force of the collision with Defendant Goodwin, Ms. Phillips lost control of the tethers and the bi-ski containing Ms. Squires continued down Cashier trail unrestrained until it collided with a tree. (See SAC at 5 of 13, ¶ 19; BOEC’s Answer to SAC (Doc. # 27) at 2-3 of 8, ¶ 12). Ms. Squires was injured when the bi-ski collided with a tree. (See SO at 7 of 15).
Ms. Squires filed her initial Complaint on February 12, 2010, alleging five claims for relief against Defendants Goodwin and BOEC based on diversity of citizenship [*4] jurisdiction. (See Doc. # 1). She filed her First Amended Complaint (“FAC”) on April 15, 2010, alleging nine claims for relief against Defendants Goodwin, BOEC, and Mountain Man, Inc. (“Mountain Man”). (See Doc. # 5). Ms. Squires refiled her First Amended Complaint on April 19, 2010 pursuant to a request from the Clerk of the Court. (See Doc. # 11). Ms. Squires filed her Second Amended Complaint (“SAC”), the current operative pleading, on June 2, 2011, alleging nine claims against Defendants Goodwin, BOEC, and Mountain Man. (See Doc. # 13). Ms. Squires’ First, Second, Third, and Fourth Claims for Relief allege negligence per se under the Ski Safety Act, Colo. Rev. Stat. § 33-44-109(2) and common law negligence against Defendant Goodwin. (See Doc. # 13 at 6-7 of 13). Ms. Squires’ Fifth Claim for Relief alleges negligence, willful and wanton, reckless, and/or gross negligence against Defendant BOEC. (See id. at 8-9 of 13). The court granted summary judgment in favor of Defendant Mountain Man on Ms. Squires’ Sixth, Seventh, Eighth, and Ninth Claims for Relief for strict products liability, breach of implied warranty of fitness and/or merchantability, common law negligence, and breach [*5] of express warranty. (See id. at 9-12 of 13; “Order on Pending Motions” (Doc. # 119)).
Defendant BOEC moves for summary judgment on the Fifth Claim for Relief in the SAC on the grounds that Ms. Squires is prevented from bringing the claim by a valid release of liability.
II. Standard of Review
“Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law.” Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F. Supp. 2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted). “When applying this standard, the court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Id. “All doubts must be resolved in favor of the existence of triable issues of fact.” Id. However, if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion [*6] of fact, “the court may . . . grant summary judgment if the motions and supporting materials — including the facts considered undisputed — show that the moving party is entitled to it.” Fed. R. Civ. P. 56(e).
III. Analysis
A. Release of Negligence Claim under Colo. Rev. Stat. § 13-22-107
Prior to the Accident, on January 13, 2008, Ms. Squires and her mother, Mrs. Squires, signed an “Acknowledgement [sic] of Risk and Release of Liability” (“Release”). In Colorado, the parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence. Colo. Rev. Stat. § 13-22-107. The statute requires that such a decision be “voluntary and informed.” Colo. Rev. Stat. § 13-22-107(1)(a)(V).
(1)(a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities [*7] may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
. . .
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit [*8] a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Colo. Rev. Stat. § 13-22-107.
“Because waiver is an affirmative defense, the Defendant has the burden to prove waiver.” Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) (Furman, J, dissenting) (citing C.R.C.P. 8(c)). Ms. Squires argues that BOEC is not entitled to summary judgment on the Fifth Claim for Relief based on the Release because her mother’s decision to sign the Release was not informed.1 Relying on Wycoff, 251 P.3d at 1260, Ms. Squires argues that the decision was not informed because the Release did not inform Mrs. Squires of the risks associated with BOEC’s winter program, failing to “mention skiing, skis, ski slopes, ski lifts, or anything at all specific to skiing.” (See Response (Doc. # 56) at 9 of 19).
1 Ms. Squires concedes that Mrs. Squires signed the Release voluntarily. (See, e.g., Doc. # 84-4 at 6 of 7).
In Wycoff, a 17-year old minor attending a church-sponsored event was injured when she was riding [*9] on an inner-tube towed by an ATV on a frozen lake. Wycoff, 251 P.3d at 1263. The minor and her mother had signed the registration and information form that contained a release. Id. While the minor was aware that riding on an inner-tube towed by an ATV on a frozen lake would be an activity at the event, her mother was not. Wycoff, 251 P.3d at 1263. The court in Wycoff interpreted § 13-22-107(3) to require that a parent’s decision to release a child’s prospective claims be “voluntary and informed.” Id. Although the court noted the standard for informed consent to a medical procedure, it did not adopt that standard for a parental release of claim. Wycoff, 251 P.3d at 1264. Without setting forth precisely how much information is required for a parental release to be “voluntary and informed,” the court held that a one-page “registration and information” form, which happened to contain one sentence in the last paragraph stating, “I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation,” was legally insufficient to release a child’s negligence claim. Id. at 1265. The court agreed that “[a] release need not contain [*10] any magic words to be valid,” but recognized that “in every Colorado Supreme Court case upholding an exculpatory clause, the clause contained some reference to waiving personal injury claims based on the activity being engaged in.” Wycoff, 251 P.3d at 1265. The “registration and information” form held inadequate in Wycoff made no reference to the subject activity or to waiving personal injury claims, nor did it provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. Id.
The Release here provides in pertinent part:
In consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities. . . I, and/or the minor student, and/or the person for which I am legal guardian, the undersigned:
1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that
2. Understand that risks during outdoor programs [*11] include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical facilities or while traveling to and form the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.
I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes [*12] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.
(See Exhibit A to Motion (Doc. # 52-1)). On the other side of the Release was a letter of explanation (“Greetings Letter”) that the court may consider as evidence of whether the decision to sign the Release was informed. (See id. at 4 of 5; Deposition of Sara Squires, Appendix 4 to Ms. Squires’ Reply (Doc. # 84-4) at 3 of 7). See Wycoff, 251 P.3d at 1264 (“We will assume for purposes of this case that a facially deficient exculpatory contract could be cured by extrinsic evidence.”); Glover v. Innis, 252 P.3d 1204, 1209 (Colo. App. 2011) (extrinsic evidence permitted not to contradict or vary terms of an agreement, but to show waiver of a provision of the agreement). The Greetings Letter stated in pertinent part:
Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure [*13] or activity is unclear to you.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledgement of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places[.]
(See Doc. # 61-1 at 4 of 5).
A finding that Mrs. Squires’ decision to sign the Release was informed is not inconsistent with the analysis in Wycoff, 251 P.3d at 1260. First, the release in Wycoff was one sentence that “state[d] only that plaintiff will not hold Grace ‘responsible for any liability which may result from participation,’” surrounded by sentences addressing different topics. Here, the Release was clearly entitled at the top “Acknowledgement [sic] of Risk and Release of Liability,” in large, italicized letters. (See Doc. # 52-1). The first sentence again states, “ACKNOWLEDGMENT OF [*14] RISK AND RELEASE OF LIABILITY (REQUIRED)” in capital letters and underlined. Id. The Release signed by Ms. Squires was clearly identified as a waiver and release of liability.
Second, the Release includes one full page that explains in detail the degree of risk involved with BOEC outdoor programs, events, activities, and/or courses; the extent of possible injuries from any activity, including injury, permanent disability, fatality, and other risks not known or not reasonably foreseeable; participation in activities and the use of equipment; and the release of BOEC from any all and claims, whether resulting from negligence or otherwise. (See Doc. # 52-1). Ms. Squires was a participant in a BOEC winter outdoor program that included skiing. The Release refers to outdoor programs and sets forth a detailed explanation of the possible risks of injury to property and person. (See id.).
It is conceded that when she signed the Release, Mrs. Squires knew that her daughter would be skiing during her trip to Colorado. (See Doc. # 56 at 10 of 19). Nevertheless, Ms. Squires argues that the Release did not provide any, much less adequate, information regarding the inherent risks of skiing or describe [*15] the particular risks of the sit-down ski that she used and that it would be controlled by her instructor with tethers. Ms. Squires provides an affidavit from Mrs. Squires stating that, in response to her telephone inquiry, a BOEC employee instructed her to mark “Sit-Down” and “Bi-Ski” on the “Wilderness/Ski Group Information” Form, and that no one from BOEC explained to her what a “Sit-Down” or “Bi-Ski” was. (See Affidavit of Sara A. Squires, Exhibit 1 to Response (Doc. # 56-1); Doc. # 84-4 at 5 of 7).
Mr. and Mrs. Squires were provided the BOEC forms and applications to be completed in advance of the trip, including the Release, by Andrea Breier, Director of the Adventure Fitness Program at Camp Fire USA at the time, the group that organized the ski trip that Ms. Squires attended. (See Affidavit of Andrea Breier, Exhibit D to Reply (Doc. # 61-1) at 1-2 of 5). Mrs. Squires had opportunities to ask questions about the ski trip and the forms before her daughter’s trip to Colorado. (See id. at 2 of 5). Ms. Breier specifically recalls explaining to Mrs. Squires that Ms. Squires would be seated when skiing, that BOEC uses sleeping bags to pad the bucket seat, that students in wheelchairs [*16] have two assistants helping them, and that the instructor uses guide ropes to steer the ski down the mountain. (See id.). Mrs. Squires knew that her daughter would be using some form of sit-down ski on this trip because her primary means of mobility was by wheelchair and she would not have been able to ski down the mountain standing up. (See id.). Mrs. Squires completed the BOEC application and Release and provided Ms. Breier a typewritten summary that explained Ms. Squires’ conditions, limitations, and medical needs. (See Doc. # 61-1 at 2 of 5, ¶ 11). Mrs. Squires also wrote a detailed letter to BOEC, stating in pertinent part:
Sometimes during activities such as skiing, kids who have an implanted baclofen pump can experience withdrawal.2 If she is in a “bucket”/”basket” type ski, where she might be more scrunched up, or her body is more compressed down, then the catheter line can become pinched or kinked up. If they use the bucket type, then her rehab doctor recommends that she ski for about 2 hrs and then be allowed to stand up to help “straighten” out the line. Then, go back to skiing again. If they use a “sit down ski” where she is more upright (like sitting in a wheelchair), then [*17] she shouldn’t have any problems. I am not familiar with the types of equipment they have, but am only saying what other families whose children also have pumps have told me about the equipment.
(Letter from Sara Squires dated February 12, 2008, Exhibit E to Reply (Doc. # 61-2)).
2 Ms. Squires had a surgically inserted baclofen pump, which dispenses medication for muscle spasms.
Despite that the Release does not specifically include the words, “skiing,” “sit-down,” or “bi-ski,” Mrs. Squires understood that her daughter would be seated in some type of sit-ski on the trip. While Mrs. Squires claims to have had no knowledge of what a sit-down bi-ski was at the time she signed the Release, the evidence demonstrates that she had sufficient notice and knowledge of the activities that her daughter would be participating in and the associated risks. Mrs. Squires conscientiously made inquiries to BOEC about the forms and the trip. (See Doc. # 84-4 at 5 of 7). Mrs. Squires was familiar with releases generally. (See Doc. # 84-4 at 4 of 7 (“Because . . . every single program on the face of the earth has a risk and release of liability and some verbiage to that effect.”); see also 6 of 7 (“It’s the [*18] same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberley’s behalf for everything that she has ever participated in.”). Ms. Squires’ parents were informed that she would be skiing in Breckenridge, Colorado, in a type of sit-down ski, controlled by an instructor with tethers. The Release specifically refers to outdoor activities and associated risks and was accompanied by a cover letter that explained the risks involved with ski lessons, including the possibility of serious injury and even death. The Release provides that risks during outdoor programs include injury, permanent disability, fatality, severe social or economic losses, and other risks not known or reasonably foreseeable. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 8 (that “mother may not have contemplated the precise mechanics of her daughter’s fall does not invalidate the release and does not create a genuine issue of material fact”). When she signed the Release, Mrs. Squires had sufficient information “to assess the degree of risk and the extent of possible injuries from any activity,” Wycoff, 251 P.3d at 1265, and to make an informed decision to release any claims that [*19] Ms. Squires may have had against BOEC.
B. Validity of Release
The court having determined that the decision to release Ms. Squires’ prospective claims was informed pursuant to Colo. Rev. Stat. § 13-22-107(1)(a)(V), the court must next determine whether the Release was legally valid. “Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, * 1 (Colo. App. March 31, 2011) (citation omitted). “The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998); see also Robinette v. Aspen Skiing Co., L.L.C., 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (D. Colo. Apr. 23, 2009), aff’d, 363 Fed. Appx. 547 (10th Cir. 2010) (citing B & B Livery, 960 P.2d at 136). “Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the [*20] other’s negligence.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (citation omitted). “To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy.” Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (citations omitted). BOEC bears the burden of proving each of these elements. See id.
Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1112 (10th Cir. 2002) (public need and disparity of bargaining power absent in context of mountain biking and bicycle rental); Jones v. Dressel, 623 P.2d 370, 377-78 (Colo. 1981) (because recreational skydiving service “was not a matter of practical necessity for even some members of the public” and thus “not an essential service,” Defendant did not possess a decisive [*21] advantage of bargaining strength over plaintiff); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409-10 (D. Colo. 1994) (handicapped downhill ski racing was “a recreational activity, . . . neither a matter of great public importance nor a matter of practical necessity”) (citing Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 475 (D. Colo. 1992) (upholding an exculpatory clause in the context of ski equipment rental)). Ms. Squires does not challenge BOEC’s ability to prove this first element.
Second, the court evaluates whether the Release expresses the parties’ intent in clear and unambiguous language. “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996) (citation omitted). Ms. Squires argues that the Release is ambiguous and, therefore, invalid, because the language, “[a]lso I understand that I share the responsibility for safety during all activities” expresses a “shared regime of risk,” contradicts the language “I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, [*22] and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity,” and makes the participant/signer solely responsible for any injuries or bad outcomes. (See Doc. # 52-1; Doc. # 56 at 15-17 of 19).
“Terms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation.” Ad Two, Inc. v. City and County of Denver, 9 P.3d 373, 376 (Colo. 2000). “In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.” Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (citations omitted). “The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.” Moland v. Industrial Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004). Specific terms, such as “negligence,” are not required for an exculpatory agreement to shield a party from negligence claims. Potter, 849 F. Supp. at 1410 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989) [*23] (noting that the release was written in simple and clear terms that were free from legal jargon, the release was not inordinately long and complicated, the plaintiff indicated in her deposition that she understood the release, and the first sentence of the release specifically addressed a risk that described the circumstances of the plaintiff’s injury)). The inquiry is not whether specific terms are used, but “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. See also Chadwick, 100 P.3d at 467 (Colorado Supreme Court has “previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions”). “If there is no ambiguity, a contract will be enforced according to the express provision of the agreement.” B & B Livery, 960 P.2d at 136.
Here, the Release is written in clear and simple terms, is free from legal jargon, is neither long nor complicated, and encompasses the risks encompassed by Ms. Squires’ Fifth Claim for Relief. The Release specifically includes claims for [*24] negligence. The specific risk of what occurred in the Accident is encompassed within the risks of BOEC’s outdoor winter program. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at * 3 (“specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the risks of skiing/riding”) (internal quotation marks omitted). The court does not find the Release ambiguous.
Nor does the court find the Release is reasonably susceptible to Ms. Squires’ interpretation. Ms. Squires interprets two provisions in the Release in a way that strains logic to conclude that the Release as a whole is ambiguous. That Ms. Squires agrees to share the responsibility of safety during BOEC activities is not mutually exclusive from Ms. Squires agreeing to release claims arising out of BOEC activities.
Ms. Squires also notes the Release language that “BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course,” claiming that BOEC failed to do this, and querying how BOEC could shift this responsibility to its participants. Ms. Squires claims that BOEC’s failures related to the equipment used, terrain selected, use of volunteers, control of [*25] the bi-ski, training and selection of instructors, assessment of plaintiff’s disabilities, provision of instructions and safety precautions, and prevention of accidents with other skiers. The Release specifically addresses that “although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety.” (See Doc. # 52-1).
When the Release is read as a whole and the words are given their generally accepted meaning, it is susceptible to one reasonable interpretation: that although BOEC has taken precautions, it cannot guarantee absolute safety; that there are serious risks involved in BOEC activities; and that, to participate in BOEC activities, the releaser agrees to release BOEC from any and all claims related to a BOEC activity. The Release by its plain language expresses the parties’ intent to release BOEC from liability for all personal injuries resulting from negligence in conjunction with a BOEC activity.
Third, the court examines whether the Release was fairly entered into. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect [*26] to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *3 (citations omitted). Ms. Squires does not challenge BOEC’s ability to prove that the service provided here is a recreational service, not an essential service, and thus there is no unfair bargaining advantage. Where the releasor fails to point to any other unfair circumstances surrounding the exculpatory agreement, the third factor is satisfied. See Mincin, 308 F.3d at 1111. As in Chadwick, Mrs. Squires signed the Release at home in Kansas, in advance of the ski trip. 100 P.3d at 469. Mrs. Squires signed the Release voluntarily. There is no suggestion that Mrs. Squires is not competent. It is clear that Mrs. Squires is a devoted parent who has zealously tried to enhance her daughter’s quality of life. There is no evidence that the services provided by BOEC could not have been obtained elsewhere. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 3 (“in assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere”) (citing Jones, 623 P.2d at 375). Mrs. Squires is experienced and familiar with liability releases [*27] in general. Ms. Squires has not demonstrated any other unfair circumstances surrounding the execution of the Release.
Finally, the court finds that the Release does not violate public policy. The adaptive recreational ski services provided by BOEC are recreational and not a matter of great public importance or practical necessity. The evidence does not indicate that the Release was entered into in any unfair manner. The Release does not exculpate BOEC from any duty in violation of public policy. The Release does not undermine any competing public policy. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *4. The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.” Colo. Rev. Stat. § 13-22-107(1)(a)(VI).
In sum, as the court finds no obvious disparity in bargaining power between the parties to the Release, that the parties’ intentions are clear and unambiguous, that the agreement was fairly entered into, and that the Release does not violate [*28] public policy, the court concludes that the Release is valid. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *6 (Colo. App. Mar. 31, 2011) (determining exculpatory agreement was valid because it “did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims”); Chadwick, 100 P.3d at 469-70 (enforcing exculpatory agreement releasing organizer of hunting trip from injuries sustained when he was thrown off mule, where exculpatory agreement unambiguously expressed the intent of the parties, was not unfairly entered into, injured party read agreement and understood he was executing a release of liability when he signed it, and agreement violated no duty to the public). Ms. Squires has released “BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action” from any claims resulting from negligence in conjunction with a BOEC activity.
C. Material Misrepresentation and Fraud in the Inducement
Ms. Squires argues that BOEC’s Motion for Summary Judgment must be denied because the Release is voidable based on material misrepresentation and fraud in [*29] the inducement. “A release is an agreement to which the general contract rules of interpretation and construction apply.” Chase v. Dow Chemical Company, 875 F.2d 278 (10th Cir. 1989) (citations omitted). “Like any contract, a release procured through fraud can be set aside.” Id.
Ms. Squires argues that BOEC fraudulently misrepresented in the Greetings Letter, on the reverse side of the Release, that all of its “activities are conducted in a manner consistent with the highest standards, as defined by the Association of Experiential Education (“AEE”),” when in fact there were no written standards for the adaptive ski program, and that the program was accredited by AEE when in fact the program was not so accredited. (See Doc. # 61-1 at 4 of 5). There is no statement regarding AEE standards or accreditation in the Release itself. (See Doc. # 52-1). BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. (See Doc. # 84-6 at 2 of 2). BOEC’s Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive [*30] ski program that Ms. Squires attended. (See Deposition of Jeffrey Inouye (Doc. # 84-2) at 2 of 2). Ms. Squires argues that based on the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.” (Reply Memorandum Brief Regarding Misrepresentation (Doc. # 84) at 4 of 11). Ms. Squires argues that Mrs. Squires relied on these claimed misrepresentation when she signed the Release on January 13, 2008.
In addition to its adaptive ski program, BOEC has a department that operates its wilderness program, which facilitates year-around programming for people with disabilities and special needs. (See Doc. # 89-3 at 3 of 3). The Greetings Letter is sent to participants involved in a wilderness course, who may or may not participate in the ski program. (See Doc. # 89-1 at 2-5 of 5). Groups interested in a wilderness course, which includes lodging and activities other than skiing, such as a ropes course, and climbing wall, will complete paperwork through the wilderness program. Id. Each program has its own separate [*31] set of forms to be completed by participants. Id. Groups who are interested only in skiing at BOEC will complete paperwork for the ski program. (See Doc. # 89-1 at 2-5 of 5). Ms. Squires was a student of BOEC as a participant of the Camp Fire USA group (“Camp Fire”). (See Doc. # 61-1 at 1-2 of 5). For its trip to Colorado, Camp Fire contracted with the wilderness program for a five-day wilderness course that included transportation and lodging in addition to skiing. (See Wilderness Course Contract (Doc. # 89-2) at 1-2 of 2). The Release and Greetings Letter were from the wilderness program. (See Doc. # 89-1 at 3 of 5).
While BOEC’s adaptive ski program did not have its own written ski lesson policies and procedures at the time of the Accident, it has at all times trained its instructors and followed the standards for adaptive skiing set forth by the PSIA, the governing body that establishes national standards for skiing. (See Doc. # 89-3 at 2 of 3). BOEC’s adaptive ski program used the PSIA Core Concepts book, the Adaptive Ski Program Manual, and the Alpine Technical Manual. (See id.; see also Doc. # 84-5).
“To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation [*32] of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.” Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010) (citing CJI-Civ. 4th 19:1 (1998)). See also J.A. Walker Co., Inc. v. Cambria Corp., 159 P.3d 126, 132 (Colo. 2007) (applying same elements to a fraudulent inducement claim). “Implicit within these elements are the requirements that the claimant demonstrate that it relied on the misrepresentation and that its reliance was justified under the circumstances.” Loveland Essential Group, LLC v. Grommon Farms, Inc., 251 P.3d 1109, 1116 (Colo. App. 2010) (citation omitted).
“The misrepresentation must be made with the intent to deceive and for the purpose of inducing the other party to act on it, and there must be evidence that the other party did in fact rely on it and was induced thereby to act to his injury or damage.” Club Valencia Homeowners Ass’n v. Valencia Assocs., 712 P.2d 1024, 1026-27 (Colo. App. 1985) [*33] (citation omitted). Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.
Reasonable and justifiable reliance is also required for a claim of fraudulent misrepresentation. Ivar v. Elk River Partners, LLC, 705 F. Supp. 2d 1220, 1238 (D. Colo. 2010). See also Sheffield Services Co. v. Trowbridge, 211 P.3d 714, 725 (Colo. App. 2009) (“a necessary element to all fraud actions is that the plaintiff justifiably relied on the misrepresentation or the nondisclosure”); Williams v. Boyle, 72 P.3d 392, 399 (Colo. App. 2003) (element of fraudulent misrepresentation is “the right or justification in relying on the misrepresentation”).
The evidence fails to demonstrate justifiable reliance by Mrs. Squires on the statements regarding AEE standards and accreditation in the Greetings Letter. The Greetings Letter emphasized the importance of reading and signing the Release on the reverse side. (See Doc. # 84-1 at 1 of 1). The Release explains that skiing involves a risk of serious [*34] bodily injury and that it is impossible to eliminate all risk. (See Doc. # 52-1). Despite the emphasis on the importance of reading and signing the Release, Mrs. Squires did not take particular note of the language in the Release. “I can only say I assume I read it. I have no recollection of reading it before I signed it.” (See Doc. # 84-4 at 6 of 7). Ms. Squires propounds that Mrs. Squires paid close attention to the Greetings Letter but did not place any importance on the Release itself, which contained the exculpatory provisions. (See id. (the Release contained “the same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberly’s behalf for everything that she has ever participated in. So I did not put any more credence towards this particular document than I did anything else.”)). Mrs. Squires had substantial knowledge about the ski trip, learned from Camp Fire’s past experiences, communications with Ms. Breier, and BOEC’s written materials. (See Doc. # 84-4 at 2-7 of 7). The evidence does not support a finding that Mrs. Squires justifiably relied on the information in the Greetings Letter regarding the AEE while taking no [*35] notice of the exculpatory language in the Release she signed. The evidence shows that Mrs. Squires did not make the decision for Ms. Squires to participate in the ski trip in reliance on the alleged misrepresentations. The court concludes that Ms. Squires has not created a genuine issue of fact for trial on the element of justifiable reliance on the Greetings Letter. For this reason also, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.
D. Willful and Wanton Conduct
The parties acknowledge that the Release cannot bar civil liability for gross negligence. See Colo. Rev. Stat. § 13-22-107(4) (“Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.”); Chadwick, 100 P.3d at 467 (“In no event will an exculpatory agreement be permitted to shield against a claim of willful and wanton negligence.”).
“Although the issue of whether a defendant’s conduct is purposeful or reckless is ordinarily a question [*36] of fact, if the record is devoid of sufficient evidence to raise a factual issue, then the question may be resolved by the court as a matter of law.” Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). See also Terror Mining Co. v. Roter, 866 P.2d 929, 935 (Colo. 1994) (summary judgment proper even when willful and wanton conduct alleged, where facts are undisputed and do not establish or imply willful conduct); United States Fire Insurance Co. v. Sonitrol Management Corp., 192 P.3d 543 (Colo. App. 2008) (“Ordinarily, determining whether a defendant’s conduct is willful and wanton is a question of fact.”) (citation omitted).
“Gross negligence is willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *9 (citing Forman, 944 P.2d at 564. “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” Forman, 944 P.2d at 564. See also Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007) (“Conduct is willful and wanton if it is a dangerous course of action that is consciously [*37] chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”) (internal quotation marks and citation omitted); United Blood Servs. v. Quintana, 827 P.2d 509, 523 n. 10 (Colo. 1992) (“Willful misconduct consists of conduct purposely committed under circumstances where the actor realizes that the conduct is dangerous but nonetheless engages in the conduct without regard to the safety of others.”) (citation omitted); Safehouse Progressive Alliance for Nonviolence, Inc. v. Qwest Corporation, 174 P.3d 821, 830 (Colo. App. 2007) (“Willful and wanton behavior is defined as a mental state of the actor consonant with purpose, intent, and voluntary choice.”) (internal quotation marks and citation omitted).
Based on her expert witness, Mr. Gale’s, opinion, Ms. Squires argues that BOEC acted recklessly, precluding application of the Release. Mr. Gale, a snow sports safety consultant with 43 years of ski safety training and experience, concludes that BOEC acted recklessly based on: (1) “an inherently unsafe bi-ski program administered and conducted by BOEC,” (2) BOEC instructor Jennifer Phillips’ selection of inappropriately difficult [*38] terrain and failure to follow proper lesson plan procedures, and (3) BOEC volunteer Jim Trisler’s failure to “do his job as a blocker, look-out . . . .” (See Doc. # 56-4 at 9-11 of 11; Doc. # 56-5 at 1-2 of 8; Doc. # 88-8 (Curriculum Vitae)).
In his Expert Report, Mr. Gale concludes:
The incident was the cumulative result of an inherently unsafe bi-ski program administered and conducted by BOEC. It knew or should have known that its “word of mouth” rather than written safety protocols and procedures were ineffective and substantially enhanced the risk over and above the inherent risks of skiing to Miss Squires. It purposely chose a dangerous course of training, supervision, and bi-ski program implementation. In doing do it created a strong probability that this circumstance was [a] predictable incident that was bound to happen sooner or later. It failed to address fundamental safety procedures even though it appears to do so in its other adaptive program offerings. . . This further demonstrates BOEC’s willful, reckless, and comprehensive disregard for Miss Squire’s safety.
(Doc. # 56-5 at 1 of 8, ¶ 5.2). Mr. Gale also concludes that the conduct of BOEC’s instructor, Ms. Phillips, was [*39] intentional, willful, and reckless.
The conduct of BOEC’s instructor Jennifer Phillips fell well below the PSIA standards. As a PSIA certified instructor, she was or should be well aware of the policies, procedures, and standards for bi-ski instruction particularly terrain selection. The plethora of written PSIA instructional methodology and information addresses skill based instructional activities with safety as a fundamental priority and duty. She intentionally made the decision to abandon the PSIA lesson plan and sequential format for bi-ski instruction. This conduct demonstrates intentional, willful, and reckless disregard for Miss Squire[s'] safety.
(Doc. # 56-5 at 1 of 8, ¶ 5.3). Mr. Gale further identifies reckless conduct with regard to the use of slip knots to ensure that the bi-ski would remain tethered to the BOEC instructor. He concludes that:
Defendant BOEC was or should have been fully aware of the dangers of a detached bi-ski caused by the reckless choice not to properly utilize or dangerously utilize BOEC’s own slip knot rule powerfully hitting some object, person, or a tree. The safety procedures, training, and program risk management did not match the risk nor fully [*40] address the safety requirements dealing with a detached and out of control bi-ski loose on the slope. The foreseeable consequence was a serious injury to the student, the public, or both. The entities recklessly disregarded Miss Squires['] safety and willfully created this higher than normal risk for Miss Squires. There were no prudent or careful precautions taken to reduce or lessen the risk of this predictable and foreseeable incident.
(Doc. # 56-5 at 2 of 8, ¶ 5.5).
Mr. Bil Hawkins of Knott Laboratories also provided an expert report. (See Doc. # 56-2). Mr. Hawkins has a B.S. in civil engineering and is a certified Level II Rope Access Technician. (See Doc. # 88-5). Mr. Hawkins examined the safety knot, or slip knot, used to fasten the bi-ski’s tether to BOEC instructor Ms. Phillips. This knot was the only mechanism that prevented the downhill movement of the bi-ski. Mr. Hawkins concludes in his expert report:
Based upon Knott Laboratory’s inspection, the available evidence, and this engineer’s education, training, and experience, the following conclusions have been reached within a reasonable degree of engineering certainty:
o Ms. Phillips was not certified to [i]nstruct students on [*41] a bi-ski device at the time of Ms. Squires['] accident on February 13, 2010
o BOEC knew or should have known that Ms. Phillips was not certified to instruct participants on a bi-ski device at the time of Ms. Squires['] accident on February 13, 2010
o Ms. Phillips did not follow BOEC’s written policy by providing two independent means of anchor when providing sole support to a participant on a rope device
o The safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly
(Doc. # 56-2 at 11 of 11).
There is thus some evidence in the record that it may have been reckless for Ms. Phillips to take Ms. Squires on Cashier, a blue run, on the day of the Accident. Ms. Squires was a blind, first-time skier strapped to a bi-ski with no means to control her own speed or direction. It was BOEC policy to start such a student on a green run. (See Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2). But see Deposition of Stanley Gale (Doc. # 90-5) at 2 of 2 (“Q: Are you saying — are you saying that it’s wrong to have an adaptive bi-skier on Cashier run? A: No.”); Expert Report of Ruth Ann DeMuth (Doc. # 100-5) at 5 of 6 [*42] (BOEC employee Jennifer Phillips “did not compromise the safety of Miss Squires by going up the Beaver Run Lift to Cashier.”).
The court cannot conclusively determine based on the evidence before it whether there was a purposeful or conscious failure to use a slipknot or tie the properly. The use of a slipknot with a bi-ski is the established BOEC policy. (See Deposition of Jennifer L. Phillips (Doc. # 100-3) at 2-3 of 3; Deposition of Paul E. Gamber (Doc. # 100-4) at 4 of 4). Witnesses who were asked agreed that it could be reckless to conduct a bi-ski lesson without a properly-tied slip knot tethering a bi-ski with fixed outriggers. (See Deposition of Jennifer L. Phillips (Doc. # 90-8) at 2 of 2; Deposition of Peter W. Axelson (Doc. # 97-9) at 3 of 3; Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2; (Doc. # 90-7) at 2 of 2; Deposition of Ruth Ann DeMuth (Doc. # 90-6) at 2 of 2; Deposition of Patrick B. Kelley (Doc. # 90-4) at 2 of 3). Mr. Hawkins concludes that “[t]he safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly.” (Doc. # 56-2 at 11 of 11).
This evidence and these conclusions by the [*43] expert witnesses could demonstrate reckless, grossly negligent, and willful and wanton acts and omissions. A jury could conclude there was purposeful conduct committed recklessly with conscious disregard for the rights and safety of Ms. Squires. The evidence, viewed in a light most favorable to Ms. Squires, might lead a reasonable jury to conclude that BOEC was conscious of its conduct and the existing conditions and knew there was a strong probability that injury to Ms. Squires would result. The court concludes that Ms. Squires is properly afforded an opportunity to present to a jury evidence of the alleged willful and wanton, reckless, or grossly negligent acts or omissions. It will best be determined at trial, after the submission of Ms. Squires’ case in chief, whether BOEC acted recklessly.
The court addresses separately Ms. Squires’ argument that BOEC volunteer, Mr. Trisler’s, “acts and omissions” were “more than mere recklessness.” (See Doc. # 56 at 14 of 19). Mr. Gale concludes that
[t]he conduct of BOEC trained Jim Trisler fell below the duty of a blocker. He did absolutely nothing to prevent the collision or intervene prior to the collision between Jennifer Phillips and Michael [*44] Goodwin. He failed in his essential duties which were to prevent the collision, or at the very least, to reduce the severity of the consequences.
(See Doc. # 56-5 at 2 of 8, ¶ 5.4). See also Doc. # 56-4 at 10 of 11 (“he did not do his job as a blocker, look-out, or make his presence known to Michael Goodwin. Apparently, he did not hear or see Michael Goodwin coming down out of control before the powerful impact. He was not vigilant nor did he fulfill his duty and responsibility to protect and warn. It seems that he was not on the look-out as he should have been or he would have likely seen Michael Goodwin skiing too close, out of control, and headed for Jennifer Philips and Miss Squires['] bi-ski device.”). Ms. Squires argues that ‘[a]lthough Mr. Gale does not specifically use the word reckless in describing Mr. Trisler’s acts and omissions, his analysis and description describe more than mere recklessness.” (Response (Doc. # 56) at 14 of 19). The court disagrees. Colorado law defines negligence as “a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect [*45] . . . others from bodily injury, . . .” CJI-Civ. 9:6 (2011). The evidence in the record, including Mr. Gale’s opinion, amounts to no more than negligence by Mr. Trisler. As to Mr. Trisler, there is insufficient evidence to create a genuine issue of material fact that he acted willfully and wantonly, that is, that he consciously chose a dangerous course of action with knowledge of facts that, to a reasonable mind, created a strong probability that injury to Ms. Squires would result. The Release thus bars Ms. Squires’ claim based on Mr. Trisler’s conduct.
Accordingly, IT IS ORDERED that:
1. Defendant BOEC’s Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52) is GRANTED IN PART AND DENIED IN PART.
2. The Fifth Claim for Relief in the Second Amended Complaint (Doc. # 13) shall proceed against Defendant Breckenridge Outdoor Education Center only on the alleged willful and wanton, reckless, or grossly negligent acts or omissions.
3. The court will hold a Telephonic Status Conference on Thursday December 8, 2011 at 8:30 a.m. Counsel for the parties shall create a conference call and then telephone the court at 303-844-2117 at the scheduled time.
DATED at Denver, Colorado, this 8th [*46] day of November, 2011.
BY THE COURT:
/s/ Craig B. Shaffer
United States Magistrate Judge
Guiding Opportunity at Grand Canyon National Park
Posted: February 3, 2012 Filed under: Arizona, Grand Canyon National Park | Tags: Arizona, Grand Canyon National Park, Grand Canyon National Park, Hiking, NationalParkService, Park, South Rim Leave a comment »Arizona Outback Adventures will be conducting a series of day hikes on various trails at the South Rim of Grand Canyon National Park on May 19th 2012.
We are recruiting guides to join our existing staff for three days of work on a contract basis.
Pay is $100.00-$120.00 per day dependent upon experience and qualifications
Guaranteed gratuity plus additional tips possible
All meals, park entrance and camping fees included
Applicants are required to have:
· Current WFR certification (or higher)
· Current CPR certification
· Good general knowledge of Grand Canyon’s history, geology, flora and fauna
· Experience hiking the main trails from the South Rim
· The ability to handle a group of seven diverse hikers on your own
· The ability to follow specific instructions and procedures
· A day pack, comprehensive first aid kit, trowel and all appropriate clothing and footwear for changing weather conditions
· Be physically fit
· Have a pleasant, friendly and engaging personality
· Have a presentable appearance
· Be available from 5:00am 5/17 through 9:00pm 5/19
· Experienced Grand Canyon hiking and rafting guides preferred
To apply email tim@aoa-adventures.com with a brief outline of your experience and qualifications, list all trails that you have hiked from the Main South Rim area (Hermit to Grandview) and the approximate number of times on each trail. Attach a current photo and a single sheet with a color scan of your Driver’s License, WFR Card and CPR card (if separate) with expiration dates clearly showing.
What do you think? Leave a comment.
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Guiding Job in the Grand Canyon
Posted: February 3, 2012 Filed under: Arizona, Grand Canyon National Park | Tags: Angel’s Gate Tours, Arizona, Colorado River, Grand Canyon National Park, Grand Canyon National Park, Guide, Hiking, National Parks and Monuments, Park, Travel and Tourism Leave a comment »Angel’s Gate Tours is looking for experienced Grand Canyon guides to lead sightseeing tours, day hikes and the occasional backpacking trip in Grand Canyon. We are specifically recruiting experienced Grand Canyon boatman and other Grand Canyon backcountry professionals. Please contact us if you meet the following requirements:
- Minimum WFR certified, with CPR. (More advanced med certs are also acceptable).
- Good driving record. (1 minor ticket is usually OK)
- Must be able to pass Arizona DOT physical (this is pretty simple, basically it verifies that you can see, hear and move well enough to drive a vehicle).
- Outstanding Grand Canyon knowledge. (You know your schist from Shi-nola, and can present complex material in an entertaining manner).
- Hiking experience on all South Rim trails.
This is an excellent opportunity for Grand Canyon backcountry professionals that need to spend more time in town due to family, children, dog issues or other constraints. The majority of our tours and hikes depart from and return to Flagstaff daily. Please visit our website at www.SeeGrandCanyon.com and call (928) 814-2277 to schedule an interview. Angel’s Gate Tours is an EOE.
My Letter posted in Bicycle Retailer and Industry News as a Guest Editorial
Posted: February 3, 2012 Filed under: Cycling | Tags: Andy Tompkins, bicycle, Bicycle Retailer & Industry News, Business, Consumer Goods and Services, Cycling, Interbike, Las Vegas Nevada, Manufacturing, Nielsen, Retail Leave a comment »
February 1, 2012
Marc Sani
Bicycle Retailer and Industry News
25431 Cabot Road, Suite 204
Laguna Hills, CA 92653
Via Email: msani@bicycleretailer.com
Re: Termination of Andy Tompkins
Dear Marc:
I received the email from Andy Tompkins like many announcing his termination from Nielsen and Interbike. I felt sorry for Andy and more so for the industry. When I read your guest editorial in the January 1, 2012 issue of BRAIN, I had a big smile on my face as well as the tug in my heart.
I understand budgets and the need to create a bottom line that meets with management and shareholder expectations. Andy brought many things to the table that cannot be immediately calculated or identified on a spreadsheet. I suspect he did not survive this long in the industry without meeting the bottom line expectations as well.
Andy stood out among a group of talented people at Nielsen. He had an enviable ability to listen to every compliment, complaint or “suggestion,” no matter how it was delivered and leave the person feeling like their time had not been wasted. In the trade show industry that many are saying is dying, Andy and his team kept Interbike coming back, getting better and growing. The excitement that you feel when you attend a tradeshow when retailers want to find out what is new each year still existed at Interbike even though many other venues had popped up to steal Interbike’ s luster.
Your piece pointed out many of those skills and issues that Andy brought to his job each morning. Your piece also will provide a basis to evaluate and see where the trade show industry, Interbike and Andy are going.
The bike industry needs Interbike. Not for the big manufactures for the name brands but for the retailers who leave the big booths and walk around the walls. The new exhibitors bring the excitement, the ideas and what will eventually be the next big thing to the show. They do not have the opportunity to show their products to a nationwide audience anywhere but Interbike. For those new and upcoming manufactures Interbike is the only opportunity. For retailers, those new manufacturers are the next opportunity.
Andy Tompkins provided that opportunity, big or small, for manufacture or retailer and he will be missed. Your article did a great job of make sure the cycling industry knows it.
Sincerely,
James H. Moss, JD
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