Colorado has a new Epinephrine law allowing most outdoor programs the ability to stock and administer epinephrine without criminal liability

That means recreation camps, colleges and universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment, ski areas, and sports arenas can carry epinephrine.

NOTE: The governor signed this measure on 5/14/2015.

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HOUSE BILL 15-1232

BY REPRESENTATIVE(S) Ginal and Landgraf, Buckner, Esgar, Fields, Mitsch Bush, Pettersen, Primavera, Rosenthal, Ryden, Salazar, Tyler, Vigil, Williams, Young, Hullinghorst; also SENATOR(S) Todd and Martinez Humenik, Kefalas, Kerr, Newell.

CONCERNING THE EMERGENCY USE OF EPINEPHRINE AUTOINJECTORS BY AUTHORIZED ENTITIES, AND, IN CONNECTION THEREWITH, MAKING AN APPROPRIATION.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, add article 47 to title 25 as follows:

ARTICLE 47 Use of Epinephrine Injectors by Authorized Entities

25-47-101.  Definitions. AS USED IN THIS ARTICLE:

(1)  “ADMINISTER MEANS TO DIRECTLY APPLY AN EPINEPHRINE AUTOINJECTOR TO THE BODY OF AN INDIVIDUAL.

(2)  “AUTHORIZED ENTITY MEANS AN ENTITY OR ORGANIZATION, OTHER THAN A SCHOOL DESCRIBED IN SECTION 22-1-119.5, C.R.S., OR A HOSPITAL LICENSED OR CERTIFIED PURSUANT TO SECTION 25-1.5-103 (1) (a)

(I) (A) OR 25-1.5-103 (1) (a) (II), AT WHICH ALLERGENS CAPABLE OF CAUSING ANAPHYLAXIS MAY BE PRESENT. THE TERM INCLUDES BUT IS NOT LIMITED TO RECREATION CAMPS, COLLEGES AND UNIVERSITIES, DAY CARE FACILITIES, YOUTH SPORTS LEAGUES, AMUSEMENT PARKS, RESTAURANTS, PLACES OF EMPLOYMENT, SKI AREAS, AND SPORTS ARENAS.

(3)  “EMERGENCY PUBLIC ACCESS STATION OR “EPAS” MEANS A LOCKED, SECURE CONTAINER USED TO STORE EPINEPHRINE AUTOINJECTORS FOR USE UNDER THE GENERAL OVERSIGHT OF A MEDICAL PROFESSIONAL, WHICH ALLOWS A LAY RESCUER TO CONSULT WITH A MEDICAL PROFESSIONAL IN REAL TIME BY AUDIO, TELEVIDEO, OR OTHER SIMILAR MEANS OF ELECTRONIC COMMUNICATION. UPON AUTHORIZATION OF THE CONSULTING MEDICAL PROFESSIONAL, AN EPAS MAY BE UNLOCKED TO MAKE AN EPINEPHRINE AUTOINJECTOR AVAILABLE.

(4)  “EPINEPHRINE AUTOINJECTOR MEANS A SINGLEUSE DEVICE USED FOR THE AUTOMATIC INJECTION OF A PREMEASURED DOSE OF EPINEPHRINE INTO THE HUMAN BODY.

(5)  “HEALTH CARE PRACTITIONER MEANS A PERSON AUTHORIZED BY LAW TO PRESCRIBE ANY DRUG OR DEVICE, ACTING WITHIN THE SCOPE OF HIS OR HER AUTHORITY.

(6) “MEDICAL PROFESSIONAL MEANS A PHYSICIAN OR OTHER PERSON AUTHORIZED BY APPLICABLE LAW TO PRESCRIBE DRUGS IN THIS STATE OR ANOTHER STATE.

(7)  “PHARMACIST HAS THE MEANING SET FORTH IN SECTION 12-42.5-102 (28), C.R.S.

(8)  “PROVIDE MEANS TO SUPPLY ONE OR MORE EPINEPHRINE AUTOINJECTORS TO AN INDIVIDUAL.

 

25-47-102.  Stock supply of epinephrine auto-injectors ­emergency administration. (1)  NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY:

(a) Prescribing to an authorized entity permitted. A HEALTH

CARE PRACTITIONER MAY DIRECT THE DISTRIBUTION OF EPINEPHRINE AUTOINJECTORS FROM AN INSTATE PRESCRIPTION DRUG OUTLET TO AN AUTHORIZED ENTITY FOR USE IN ACCORDANCE WITH THIS ARTICLE, AND HEALTH CARE PRACTITIONERS MAY DISTRIBUTE EPINEPHRINE AUTOINJECTORS TO AN AUTHORIZED ENTITY; AND

(b)  Authorized entities permitted to maintain supply. AN AUTHORIZED ENTITY MAY ACQUIRE AND STOCK A SUPPLY OF EPINEPHRINE AUTOINJECTORS PURSUANT TO A PRESCRIPTION ISSUED IN ACCORDANCE WITH THIS SECTION.

(2)  EPINEPHRINE AUTOINJECTORS MUST BE STORED:

(a) IN A LOCATION THAT WILL BE READILY ACCESSIBLE IN AN EMERGENCY;

(b)  ACCORDING TO THE APPLICABLE INSTRUCTIONS FOR USE; AND

(c) IN COMPLIANCE WITH ANY ADDITIONAL REQUIREMENTS THAT MAY BE ESTABLISHED BY THE DEPARTMENT OF HEALTH.

(3)  AN AUTHORIZED ENTITY SHALL DESIGNATE EMPLOYEES OR AGENTS WHO HAVE COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 TO BE RESPONSIBLE FOR THE STORAGE, MAINTENANCE,CONTROL, AND GENERAL OVERSIGHT OF EPINEPHRINE AUTOINJECTORS ACQUIRED BY THE AUTHORIZED ENTITY.

25-47-103. Use of epinephrine auto-injectors. (1)  AN EMPLOYEE OR AGENT OF AN AUTHORIZED ENTITY OR OTHER INDIVIDUAL WHO HAS COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 MAY USE EPINEPHRINE AUTOINJECTORS PRESCRIBED PURSUANT TO SECTION 25-47-102 TO PROVIDE OR ADMINISTER AN EPINEPHRINE AUTOINJECTOR TO ANY INDIVIDUAL WHO THE EMPLOYEE, AGENT, OR OTHER INDIVIDUAL BELIEVES IN GOOD FAITH IS EXPERIENCING ANAPHYLAXIS, REGARDLESS OF WHETHER THE INDIVIDUAL HAS A PRESCRIPTION FOR AN EPINEPHRINE AUTOINJECTOR OR HAS PREVIOUSLY BEEN DIAGNOSED WITH AN ALLERGY, OR TO PROVIDE AN EPINEPHRINE AUTOINJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL; AND

(2)  THE ADMINISTRATION OF AN EPINEPHRINE AUTOINJECTOR IN ACCORDANCE WITH THIS SECTION IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.

25-47-104.  Training. (1)  AN EMPLOYEE, AGENT, OR OTHER INDIVIDUAL MUST COMPLETE AN ANAPHYLAXIS TRAINING PROGRAM BEFORE USING AN EPINEPHRINE AUTOINJECTOR. THE TRAINING MUST BE CONDUCTED BY A NATIONALLY RECOGNIZED ORGANIZATION EXPERIENCED IN TRAINING LAYPERSONS IN EMERGENCY HEALTH TREATMENT OR BY AN INDIVIDUAL OR ENTITY APPROVED BY THE DEPARTMENT OF HEALTH. THE DEPARTMENT OF HEALTH MAY APPROVE SPECIFIC ENTITIES OR INDIVIDUALS TO CONDUCT TRAINING OR MAY APPROVE SPECIFIC CLASSES BY INDIVIDUALS OR ENTITIES. THE TRAINING MAY BE CONDUCTED ONLINE OR INPERSON AND, AT A MINIMUM, MUST COVER:

(a) HOW TO RECOGNIZE THE SIGNS AND SYMPTOMS OF SEVERE ALLERGIC REACTIONS, INCLUDING ANAPHYLAXIS;

(b)  THE STANDARDS AND PROCEDURES FOR THE STORAGE AND ADMINISTRATION OF AN EPINEPHRINE AUTOINJECTOR; AND

(c) EMERGENCY FOLLOWUP PROCEDURES.

(2)  THE INDIVIDUAL OR ENTITY THAT CONDUCTS THE ANAPHYLAXIS TRAINING PROGRAM SHALL ISSUE A CERTIFICATE, ON A FORM DEVELOPED OR APPROVED BY THE DEPARTMENT OF HEALTH, TO EACH PERSON WHO SUCCESSFULLY COMPLETES THE ANAPHYLAXIS TRAINING PROGRAM.

 

25-47-105.  Reporting. AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTOINJECTORS SHALL SUBMIT TO THE DEPARTMENT OF HEALTH, ON A FORM DEVELOPED BY THE DEPARTMENT OF HEALTH, A REPORT OF EACH INCIDENT ON THE AUTHORIZED ENTITYS PREMISES THAT INVOLVES THE ADMINISTRATION OF AN EPINEPHRINE AUTOINJECTOR PURSUANT TO SECTION 25-47-103. THE DEPARTMENT OF HEALTH SHALL ANNUALLY PUBLISH A REPORT THAT SUMMARIZES AND ANALYZES ALL REPORTS SUBMITTED TO IT UNDER THIS SECTION.

25-47-106.  Emergency public access stations – life-saving allergy medication. (1)  NOTWITHSTANDING ANY LAW TO THE CONTRARY:

 

(a) A MEDICAL PROFESSIONAL MAY PRESCRIBE A STOCK SUPPLY OF EPINEPHRINE AUTOINJECTORS TO ANY AUTHORIZED ENTITY FOR STORAGE IN AN EPAS, AND MAY PLACE A STOCK SUPPLY OF EPINEPHRINE AUTOINJECTORS IN AN EPAS MAINTAINED BY AN AUTHORIZED ENTITY;

(b) A MEDICAL PROFESSIONAL MAY CONSULT THE USER OF AN EPAS AND MAKE THE EPINEPHRINE AUTOINJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; AND

(c) ANY PERSON MAY USE AN EPAS TO ADMINISTER OR PROVIDE AN EPINEPHRINE AUTOINJECTOR TO AN INDIVIDUAL BELIEVED IN GOOD FAITH TO BE EXPERIENCING ANAPHYLAXIS OR TO PROVIDE AN EPINEPHRINE AUTOINJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL.

 

(2)  THE USE OF AN EPAS IN ACCORDANCE WITH THIS ARTICLE IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.

25-47-107. Good samaritan protections – liability. (1)  THE FOLLOWING INDIVIDUALS AND ENTITIES ARE IMMUNE FROM CRIMINAL LIABILITY AND FROM SUIT IN ANY CIVIL ACTION BROUGHT BY ANY PERSON FOR INJURIES OR RELATED DAMAGES THAT RESULT FROM AN ACT OR OMISSION TAKEN PURSUANT TO THIS ARTICLE:

(a) AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTOINJECTORS OR AN EPAS AND THE ENTITYS EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;

(b)  AN AUTHORIZED ENTITY THAT DOES NOT POSSESS OR MAKE AVAILABLE EPINEPHRINE AUTOINJECTORS OR AN EPAS AND THE ENTITYS EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;

(c) AN INDIVIDUAL OR ENTITY THAT CONDUCTS AN ANAPHYLAXIS TRAINING PROGRAM;

(d)  AN INDIVIDUAL WHO PRESCRIBES OR DISPENSES AN EPINEPHRINE AUTOINJECTOR;

 

(e) AN INDIVIDUAL WHO ADMINISTERS OR PROVIDES AN EPINEPHRINE AUTOINJECTOR;

 

(f)  A MEDICAL PROFESSIONAL WHO CONSULTS THE USER OF AN EPAS AND MAKES THE EPINEPHRINE AUTOINJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; OR

(g)  AN INDIVIDUAL WHO USES AN EPAS.

(2)  IMMUNITY UNDER SUBSECTION (1) OF THIS SECTION DOES NOT APPLY TO ACTS OR OMISSIONS THAT ARE GROSSLY NEGLIGENT OR WILLFUL AND WANTON.

(3)  THIS SECTION DOES NOT ELIMINATE, LIMIT, OR REDUCE ANY OTHER IMMUNITY OR DEFENSE THAT MAY BE AVAILABLE UNDER STATE LAW, INCLUDING THE PROTECTIONS SET FORTH IN SECTION 13-21-108, C.R.S. PROVIDING OR ADMINISTERING AN EPINEPHRINE AUTOINJECTOR BY AN ENTITY OR INDIVIDUAL IS DEEMED EMERGENCY CARE OR EMERGENCY ASSISTANCE FOR PURPOSES OF SECTION 13-21-108, C.R.S.

(4)  AN AUTHORIZED ENTITY LOCATED IN THIS STATE THAT PROVIDES OR ADMINISTERS AN EPINEPHRINE AUTOINJECTOR OUTSIDE OF THIS STATE IS NOT LIABLE FOR ANY RESULTING INJURIES OR RELATED DAMAGES IF THE AUTHORIZED ENTITY:

(a) WOULD NOT BE LIABLE FOR THE INJURIES OR RELATED DAMAGES IF THE EPINEPHRINE AUTOINJECTOR HAD BEEN PROVIDED OR ADMINISTERED IN THIS STATE; OR

(b)  IS NOT LIABLE FOR INJURIES OR RELATED DAMAGES UNDER THE LAW OF THE STATE WHERE THE AUTHORIZED ENTITY PROVIDED OR ADMINISTERED THE EPINEPHRINE AUTOINJECTOR.

 

25-47-108.  Health care professionals – hospitals – obligations under state and federal law. NOTHING IN THIS ARTICLE LIMITS THE OBLIGATIONS OF A HEALTH CARE PROFESSIONAL OR HOSPITAL UNDER STATE OR FEDERAL LAW IN PRESCRIBING, STORING, OR ADMINISTERING DRUGS OR DEVICES.

SECTION 2.  In Colorado Revised Statutes, 12-36-117, amend

(1.8) as follows:

 

12-36-117.  Unprofessional conduct. (1.8)  A licensee shall IS not be subject to disciplinary action by the board for issuing standing orders and protocols regarding the use of epinephrine auto-injectors in a public or nonpublic school in accordance with the requirements of section 22-1-119.5, C.R.S., or for the actions taken by a school nurse or by any designated school personnel who administer epinephrine auto-injectors in accordance with the requirements of section 22-1-119.5, C.R.S., OR FOR PRESCRIBING EPINEPHRINE AUTOINJECTORS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.

 

SECTION 3.  In Colorado Revised Statutes, 12-38-125, add (1) (o) as follows:

12-38-125.  Exclusions. (1)  No provision of this article shall be construed to prohibit:

(o)  A PRESCRIPTION BY AN ADVANCED PRACTICE NURSE WITH PRESCRIPTIVE AUTHORITY FOR THE USE OF EPINEPHRINE AUTOINJECTORS BY AN AUTHORIZED ENTITY IN ACCORDANCE WITH ARTICLE 47 OF TITLE 25,

C.R.S.

SECTION 4.  In Colorado Revised Statutes, 12-42.5-102, amend

(42) (b) (XV) as follows:

12-42.5-102.  Definitions. As used in this article, unless the context otherwise requires or the term is otherwise defined in another part of this article:

(42) (b)  “Wholesale distribution” does not include:

(XV)  The distribution, donation, or sale by a manufacturer or wholesaler of a stock supply of epinephrine auto-injectors to public schools or nonpublic schools for emergency use by designated school personnel in accordance with the requirements of section 22-1-119.5, C.R.S., OR TO OTHER ENTITIES FOR EMERGENCY USE IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.

SECTION 5. Appropriation. For the 2015-16 state fiscal year, $23,736 is appropriated to the department of public health and environment for use by the disease control and environmental epidemiology division.

This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.4 FTE. To implement this act, the division may use this appropriation for costs to implement this act.

 

SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.  

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Lloyd v. Sugarloaf Mountain Corp. et al. 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

Lloyd v. Sugarloaf Mountain Corp. et al. 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

C. Gary Lloyd v. Sugarloaf Mountain Corp. et al.

Docket: Han-03-76

SUPREME JUDICIAL COURT OF MAINE

2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

June 10, 2003, Argued

September 25, 2003, Decided

COUNSEL: Attorneys for plaintiff: Arthur J. Greif, Esq. (orally), Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, ME.

Attorneys for defendants: Evan M. Hansen, Esq. (orally), Preti Flaherty Beliveau Pachios & Haley, LLC, Portland, ME, (for Sugarloaf Mountain Corp.).

Stephen J. Burlock, Esq., [John A. Woodcock Jr., Esq (orally), withdrew June 24, 2003], Weatherbee & Burlock, P.A., Bangor, ME, (for USA Cycling).

JUDGES: Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ. Majority: SAUFLEY, C.J., and CLIFFORD, RUDMAN, and DANA, JJ. Dissenting: ALEXANDER, CALKINS, and LEVY, JJ.

OPINION BY: RUDMAN

OPINION

[**2] RUDMAN, J.

[*P1] C. Gary Lloyd appeals from a summary judgment entered in Superior Court (Hancock County, Gorman, J.) in favor of Sugarloaf Mountain Corp. and U.S.A. Cycling, Inc., d/b/a National Off-Road Bicycle Association (NORBA), on Lloyd’s negligence complaint and on their counterclaims for indemnification. Lloyd argues that the two releases he signed prior to the Widowmaker Challenge mountain bicycle [***2] race did not effectively discharge Sugarloaf and NORBA from liability for his injury. He contends that the first release, which he signed when he became a member of NORBA, was superseded by the second release, a race entry release he signed a few days before the race, and the entry release was ambiguous and too vague to exonerate Sugarloaf and NORBA from their own negligence. He further argues that because his injury occurred during a practice run instead of the race itself, the releases are inapplicable, and that, in any event, the releases should be unenforceable as contrary to public policy. In addition, Lloyd argues that a summary judgment should not have been granted to Sugarloaf and NORBA on their claims for indemnification. We affirm the judgment for Sugarloaf and NORBA on the complaint because the membership release unambiguously discharged them from liability for damages caused by their negligence, and affirm the judgment for Sugarloaf and NORBA on their claims for indemnification and the award of attorney fees because the indemnification clause is clear and unambiguous.

I. BACKGROUND

[*P2] Lloyd alleges that he was injured in a bicycle accident in August 1995, when [***3] he was participating in a practice session prior to the Widowmaker Challenge at Sugarloaf ski resort. The race was sponsored by NORBA. The injury occurred in a collision with another participant. 1 All parties agreed that race entrants were required [**3] to participate in the practice session.

1 The other participant was also initially named a defendant but was later dismissed from the suit.

[*P3] Lloyd became a member of NORBA and signed a membership release in June 1995, in which he acknowledged that cycling is an inherently dangerous sport and that his participation was at his own risk. In the membership release, he stated:

I release and forever discharge [NORBA, its employees, agents, members, sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person [***4] or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.

[*P4] Lloyd signed another release a few days before the Widowmaker Challenge was to take place. In this entry release, Lloyd again acknowledged the dangers of participating in a bicycle event and the possibility of serious injury. The entry release provided:

I hereby waive, release and discharge . . . any and all rights and claims . . . against the sponsors of this event, [NORBA, the promoter and any promoting organizations(s), property owners . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.

The entry release also contained an indemnification provision:

Should I or my successors assert my claim in contravention of this agreement, I or my successors shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, [***5] unless the other party or parties are financially adjudged liable on such claim for wilful and wanton negligence.

[*P5] Several years after his injury, Lloyd filed this action against Sugarloaf and NORBA in which he alleges that both entities acted negligently and with willful and wanton negligence. Both entities defended on the ground that the releases barred any claims, and both counterclaimed for indemnification. Lloyd sought a summary judgment on the counterclaims, and Sugarloaf and NORBA sought a summary judgment on the complaint. The court granted a summary judgment to Sugarloaf and NORBA on both the complaint and counterclaims. The court thereafter approved $ 18,420.50 in attorney fees and an additional amount in costs against Lloyd.

II. DISCUSSION

A. The Exculpatory Releases

[*P6] Lloyd first argues that the membership release was superseded, replaced, and discharged by the entry release because the entry release is more recent and applies to a specific race, and because the two releases are inconsistent. Lloyd claims that the membership release specifically releases claims of negligence whereas the entry release more generally releases “any and all” claims. Additionally, [***6] the entry release contains the indemnification clause providing for legal fees to be assessed against the releaser unless damages for willful and wanton negligence are awarded.

[*P7] While these two releases overlap, they are not inconsistent. The fact that [**4] one release specifies negligence and the other is more general does not create an inconsistency nor does the fact that the entry release contains an indemnification clause. There is nothing in the parties’ statements of material fact that indicates they intended the entry release to supersede or replace the membership release. In fact, the entry release affirmatively states that only NORBA members, that is, people who had signed a membership release, are allowed to sign up for the Widowmaker Challenge. We fail to discern any inconsistency that would demonstrate that the parties intended that the execution of the entry release would abrogate the membership release. The entry release is unambiguous and consistent with the membership release. Thus, we reject Lloyd’s argument that the membership release is inapplicable.

[*P8] [HN1] In order for the releases signed by Lloyd to absolve Sugarloaf and NORBA of their own negligence, [***7] they must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 (Me. 1979) (internal quotation marks omitted). We strictly construe such releases against the party seeking immunity from liability. Id. at 1207-08; see also Hardy v. St. Clair, 1999 ME 142, P6, 739 A.2d 368, 370. The membership release declares with specificity that Lloyd releases and discharges NORBA, as well as any sponsors and promoters, from all liability that arises directly or indirectly from the negligence of anyone connected with the sponsorship, organization, or execution of any bicycle race. Unlike the release in the Doyle case, 403 A.2d at 1208, but similar to the release in the Hardy case, 1999 ME 142, P4, 739 A.2d at 369, there is a specific reference in the membership release to the negligence of the parties seeking immunity. We conclude that the membership release, with its express reference to negligence, sufficiently spells out the parties’ intent to extinguish the negligence liability of NORBA [***8] and Sugarloaf.

[*P9] Lloyd contends the practice or inspection run in which he was injured was not sufficiently connected to the race to be covered by the releases. Given that the parties agree that the practice session was mandatory to participation in the race itself, it would be disingenuous to conclude that the practice run was not, in the words of the membership release, “arising directly or indirectly from or attributable . . . to any negligence . . . in connection with . . . any bicycle racing or sporting event,” and, therefore, we reject this contention. See Hardy, 1999 ME 142, P5, 739 A.2d at 370; see also Barnes v. New Hampshire Karting Ass’n, 128 N.H. 102, 509 A.2d 151, 155-56 (N.H. 1986) (holding that participation in a practice lap came within release language of “participating in the event”). Because the practice run was mandatory, any negligence occurring during the practice run was attributable to the bicycle racing event.

[*P10] Lloyd also argues that if the releases are otherwise valid we should nonetheless reject them as violating public policy. We have held that [HN2] releases saving a party from damages due to that party’s [***9] own negligence are not against public policy. Hardy, 1999 ME 142, P3 n.1, 739 A.2d at 369 (citing Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983)).

[*P11] Generally speaking, courts holding that similar releases for recreational activities are void as against public policy do so because they find that the activity is a public service or open to the public; the facility invites persons of every skill level to participate; the facility has the expertise and opportunity to control hazards and guard against negligence; the facility is in [**5] a better position to ensure against risks; and broad releases of liability would remove incentives for the facility to manage risks, thereby requiring the public generally to bear the costs. See Spencer v. Killington, Ltd., 702 A.2d 35, 36-38 (Vt. 1997) (holding entry form release for ski racing event void as against public policy); Umali v. Mount Snow, Ltd., 247 F. Supp. 2d 567, 575 (D. Vt. 2003) (applying Vermont law and finding NORBA releases for mountain bike races void as against public policy). An example of an analysis by a jurisdiction holding that releases [***10] are not against public policy is Barnes, 128 N.H. 102, 509 A.2d 151. In holding that a release of liability of a kart racing facility was valid, the New Hampshire Supreme Court found that the provision of kart racing was neither a public service nor a practical necessity, that the plaintiff was under no compulsion to participate in racing, and, therefore, under no compulsion to sign the release. Id. at 155. See also Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986); Jones v. Dressel, 623 P.2d 370, 375 (Colo. 1981).

[*P12] Even if we had no precedent stating that releases like these are not violative of public policy, we would be hard-pressed on this record to conclude that provision of an event entitled “Widowmaker Challenge” is a public service or that its entrants were under any compulsion to sign the release. We do not accept Lloyd’s invitation to overturn our previous decisions.

B. The Indemnification Provision

[*P13] Lloyd’s final argument is that judgment should not have been granted to Sugarloaf and NORBA on their counterclaims for indemnification. The court held that Sugarloaf and NORBA were [***11] entitled to an award of fees because of the indemnification language in the entry release: ”

I . . . shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, unless the other party or parties are financially adjudged liable on such claim for willful and wanton negligence.”

[*P14] The language in the entry release could not have been clearer. In his application for membership in NORBA, Lloyd not only released both NORBA and Sugarloaf from any and all liability, but also waived and promised not to sue on any such claims. Lloyd, in spite of the fact that he had signed two waivers, asserted claims against both Sugarloaf and NORBA. As we note, the releases signed by Lloyd prevent him from pursuing claims against either Sugarloaf or NORBA. Therefore, neither Sugarloaf nor NORBA will be “financially liable” on any basis, let alone “for willful and wanton negligence.” The language of the indemnification clause is unambiguous. Lloyd is contractually bound to indemnify the parties defending for the expense they incurred. The trial court appropriately enforced the contractual obligation assumed by Lloyd.

The entry is:

Judgment for NORBA [***12] and Sugarloaf on the complaint and the counterclaims are affirmed. Remand for assessment of attorney fees on the appeal.

DISSENT BY: CALKINS

DISSENT

CALKINS, J., with whom ALEXANDER and LEVY, JJ., join, dissenting.

[*P15] Although I agree with the Court that the membership release, which is unambiguous and specifically refers to negligence, absolves Sugarloaf and NORBA of their own negligence, I write separately because I believe that we should vacate the summary judgment granted to Sugarloaf and NORBA on their counterclaims for indemnification. In my opinion, the indemnification clause, which is contained [**6] in the entry release form, cannot support the judgment for attorney fees against Lloyd because it is unclear and ambiguous.

[*P16] In my analysis, I start with the principle that contracts indemnifying a party from the party’s own negligence are strictly construed against the indemnitee. In Emery Waterhouse Co. v. Lea, 467 A.2d 986 (Me. 1983), we said that such contractual provisions are looked upon with disfavor and are construed strictly. Id. at 993.

It is only where the contract on its face by its very terms clearly and unequivocally reflects [***13] a mutual intention on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.

Id. In that case, the tenant had indemnified the landlord “against any and all claims” from damages “arising from or out of any occurrence in, upon or at the leased premises.” Id. However, because another portion of the indemnification clause “inferentially suggested” that attorney fees would be incurred only if the landlord was without fault, we found that the clause was inadequate. Id. In McGraw v. S.D. Warren Co., 656 A.2d 1222 (Me. 1995), we held that the contract indemnifying the defendant by a third party for “any claims” caused by anyone employed by the third party or the defendant was not sufficiently specific to indemnify the defendant for its own negligence. Id. at 1224.

[*P17] Secondly, just as with other contracts, we interpret a particular provision in light of the entirety of the agreement between [***14] the parties. See Crowe v. Bolduc, 334 F.3d 124, 137 (1st Cir. 2003) (applying Maine law and finding ambiguity in two agreements read in conjunction). Here, that means that the indemnification clause must be construed in the context of the contract in which it appears. That contract is the entry release.

[*P18] Thus, I look at the indemnification clause through the lens of strict construction, knowing that we disfavor such clauses, and in the context of the entire contract, and I proceed to decide whether the indemnification clause is clear and unambiguous. In doing so, I consider whether there are different interpretations that can be given reasonably to the contract. “[A contractual provision is considered ambiguous if it is reasonably possible to give that provision at least two different meanings.” Villas by the Sea Owners Ass’n v. Garrity, 2000 ME 48, P9, 748 A.2d 457, 461.

[*P19] The indemnification clause states: ”

I . . . shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, unless the other party or parties are financially adjudged liable on such claim for willful and wanton [***15] negligence.” Several lines above the indemnification clause and in close proximity to it, there is other language in the entry release that discharges NORBA and Sugarloaf from “any and all damages” for “any and all claims.” Lloyd suggests that the indemnification clause is ambiguous and equivocal because it contains an exception for willful and wanton negligence, whereas the other provision in the entry release exculpates NORBA and Sugarloaf from “any and all claims.”

[*P20] There are several possible constructions of the indemnification clause. First, there is the interpretation urged by Sugarloaf that the exception for willful and wanton negligence is inapplicable because Maine does not recognize the tort of willful and wanton negligence. Thus, Sugarloaf and NORBA cannot be found liable by a Maine court for willful and wanton negligence, [**7] and, therefore, the indemnification clause is consistent with the remainder of the release. NORBA proposes a slightly different interpretation: it could never be found liable for willful and wanton negligence because the entry release excuses it from “any and all claims,” which must include willful and wanton negligence. Although both of these [***16] interpretations have the effect of negating the willful and wanton exception in the clause, they are reasonable interpretations.

[*P21] A third reasonable interpretation is that although the entry release speaks to “any and all claims,” it only applies to claims for ordinary negligence. This construction recognizes the principle enunciated in a number of cases and commentaries that exculpatory releases, which immunize a party from its own gross negligence or willful and wanton negligence, are void as against public policy. Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235 (9th Cir. 1995); Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo. 1986); Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges and Universities?, 29 J.C. & U.L. 579, 603 (2003) (“Courts generally agree that one may not exonerate [oneself from liability for willful or wanton misconduct, for gross negligence, or for intentional torts, even if there is broad exculpatory language.”); Walter T. Champion, Jr., Fundamentals of Sports Law § 11:2 at 209 (1990) (“It is universally held that a release will not bar a claim for gross negligence. [***17] “). This interpretation anticipates that Maine courts would hold that Sugarloaf and NORBA are not exempt from willful and wanton negligence even though the release may excuse them from all other claims.

[*P22] Where the terms of an indemnification clause are not clear and unequivocal, the clause will not suffice to indemnify. Emery Waterhouse Co., 467 A.2d at 993. The indemnification clause here is equivocal, unclear, and ambiguous because it is susceptible to reasonable and differing interpretations. The membership release stands in sharp contrast to the entry release. The former clearly and unambiguously releases NORBA and Sugarloaf for “any and all liability” arising from “any negligence, action or omission to act.” The indemnification clause in the entry release provides for the payment of attorney fees “unless the other party or parties are financially adjudged liable on such claim for willful and wanton negligence,” but that same document discharges the indemnitees from “any and all claims.” The entry release does not unequivocally state that the bringing of a negligence claim against the indemnitee will result in the imposition of costs and attorney fees [***18] against the claimant. For this reason, it cannot be the basis for the imposition of an award for attorney fees. 2 Thus, I would vacate the summary judgment on the counterclaim and the award of attorney fees assessed against Lloyd.

2 At least one jurisdiction has held that an indemnity clause with an attorney fee provision in a recreational activity release is void as against public policy. Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205, 793 A.2d 125, 136 (N.J. Super. Ct. App. Div. 2002).


US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.

Agency requires more than just relationship; it requires actual control over the alleged agents.

Wilson v. United States, 989 F.2d 953; 1993 U.S. App. LEXIS 6165, (8th Cir. 1993)

State: Missouri, United States Court of Appeals for the Eighth Circuit

Plaintiff: Mark D. Wilson; Janet L. Wilson, Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump

Defendant: United States of America; the Boy Scouts of America

Plaintiff Claims: Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors

Defendant Defenses: No relationship between the BSA and the adult volunteers and the Missouri Recreational Use Statute

Holding: for the Defendant

Year: 1993

A group of Boy Scouts and their adult leaders were at Fort Leonard Wood, a US Army military post for the weekend to participate in the Army’s Youth Tour Program. The boys and adults stayed in a barrack. Stacked beside the barrack were aluminum alloy irrigation pipes that were approximately 30’ long. The pipes were stacked there when not in use for six years.

Three of the boys grabbed one of the pipes and carried it 20’ west of the building and raised it to a vertical position. It came in contact with a high-voltage line injuring two boys and killing one.

Because one of the defendants was the United States, as the owner of the land and property under the supervision and control of the US Army, the case was brought in the Federal District Court of Missouri for the Eastern District of Missouri.

The trial court dismissed the claims of all plaintiffs because of the Missouri recreational use act for the defendant US Army, and the BSA did not owe the plaintiff’s a duty of care. The plaintiff’s appealed.

Analysis

To sue an agency of the United States, your claims must meet the requirements of the Federal Tort Claims Act. The act allows the defendant to assert any defense allowed under the act and as allowed under the law of the state where the incident occurred.

In this case, the defendant US raised the defense provided by the Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348. The act provides immunity to landowners who make their property available for recreation without an entry charge.

Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Recreational use is defined by the act as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports.”

The immunity is available unless the landowner is:

…found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes.

The Army charged $2.00 per person to say in the building. The plaintiff’s argued that the recreational use act then did not apply to the defendant US Army.

1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.

The Fort was called an open military post. That means that members of the public were allowed to visit the post. The post was open to the public for “fishing, hunting, hiking, camping, picnicking or canoeing.” The Fort also offered the Youth Tour Program which allowed national youth organizations such as the BSA special programs not available to the general public. These programs included “visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.”

If the youth group or in this case, the BSA, want to spend the night, the Army charges a $2.00 per person fee.

This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night.

The application of the Missouri Recreational Use Statute, construes fees in the act as defined to enter upon the land. The $2.00 fee was paid to stay overnight in the building, entrance onto the base was free.

There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” fee, and that it is assessed on a per person/per night basis.

The remaining arguments presented by the plaintiffs were quickly dismissed by the court in a paragraph for each argument.

The court then turned to the claims against the Boy Scouts of America. In order to hold the National Council of the BSA liable for the acts of the volunteer adult leaders in Missouri, the plaintiff has to prove an agency relationship existed between the BSA and the adults. This would allow the plaintiff’s to argue a vicarious liability claim against the BSA.  

The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.

The court then accurately related the legal relationship between the BSA national office and volunteers of a unit.

The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.

The court then examined the requirements of respondeat superior, needed to hold an employer liable for the acts of an employee.

Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” If there is no right to control, there is no liability.

The plaintiff failed to produce any evidence that the BSA national council has any control over the “specific activities of individual troops, or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity.”

The appellate court upheld the lower court’s dismissal of the case.

So Now What?

This is another situation where the recreational use statute has been parsed by how the many paid were used by the landowner. Money paid to enter the land does not allow the landowner to use the defense of the state recreational use statute. Money paid for other things once on the land may still allow the use of the statute as a defense.

However, this is a narrow reading of the law and would be specific to each state law. Make sure you have consulted with a local attorney familiar with the law before making this decision to charge for other items.

The Boy Scouts of America do not supervise, control or have any power or authority over its volunteers.

 

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Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Mark D. Wilson; Janet L. Wilson, Appellants, v. United States of America; The Boy Scouts of America, Appellees. Mark D. Wilson; Janet L. Wilson, Plaintiffs, v. The Boy Scouts of America, Defendants. Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump, Appellants, v. United States of America; The Boy Scouts of America, Appellees.

No. 92-1438, No. 92-3363

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

989 F.2d 953; 1993 U.S. App. LEXIS 6165

September 18, 1992, Submitted

March 29, 1993, Filed

SUBSEQUENT HISTORY: [**1] Rehearing Denied May 10, 1993, Reported at: 1993 U.S. App. LEXIS 10903.

PRIOR HISTORY: Appeals from the United States District Court for the Eastern District of Missouri. District No. 89-1696-C-7. Jean C. Hamilton, U.S. District Judge.

DISPOSITION: Affirmed

CASE SUMMARY:

COUNSEL: For MARK D. WILSON, JANET L. WILSON, Plaintiffs – Appellants: Alan E. DeWoskin, 314-727-6330, Suite 426, 225 S. Meramec Avenue, St. Louis, MO 63105.

For UNITED STATES OF AMERICA, Defendant – Appellee: Joseph Moore, Asst. U.S. Attorney, 314-539-3280, U.S. ATTORNEY’S OFFICE, 1114 Market Street, St. Louis, MO 63101. Robert William Cockerham, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400. For BOY SCOUTS, OF AMERICA, Defendants – Appellees: Russell F. Watters, Robert William Cockerham, Thomas Michael Ward, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400.

JUDGES: Before HANSEN, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.

OPINION BY: ROSS

OPINION

[*954] ROSS, Senior Circuit Judge.

Appellants Mark Wilson and Janet Wilson, the parents of Anthony Wilson, and [*955] Jason Harbian and Daniel Winfrey, and their parents, appeal from the trial court’s 1 grant of summary judgment in favor of appellees United States of America and the Boy Scouts of America, in an action arising out of the death of Anthony Wilson and the injuries sustained by Jason Harbian and Daniel Winfrey.

1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

On April 22, 1988, Anthony Wilson, Daniel Winfrey and Jason Harbian, members of Troop 392 of the Boy Scouts of America, St. Louis Area Council, along with other boy scouts and five adult leaders, went to Fort Leonard Wood, a United States Army military post, on a boy scout trip as part of the Army’s Youth Tour Program. A pile of lightweight aluminum [**2] alloy irrigation pipes, approximately thirty feet in length, were stacked outside Building 1614, where the troop was billeted for the weekend. The pipes had been used for irrigation of the athletic field adjacent to the building, and when not in use, were stored alongside the building. The pipes had been stacked in this manner for approximately six years.

On the second night of their weekend stay, at approximately 10:30 p.m., Anthony, age thirteen, and five or six other scouts, ages twelve to sixteen, were outside Building 1614, while the leaders were inside the building. Anthony, Daniel and Jason picked up one of the aluminum pipes, carried it approximately twenty feet west of the building, and raised it to a near vertical position, causing the pipe to come in contact with a 7,200 volt power line which ran over the building. All three scouts received electric shocks; Anthony died as a result of the injuries he sustained.

Mark and Janet Wilson brought a wrongful death action against the United States pursuant to the Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors. [**3] Sometime later the Harbian/Winfrey plaintiffs filed personal injury actions against both the United States and the BSA, and eventually these cases were consolidated with the Wilson case for trial. Motions for summary judgment filed by the United States and the BSA were eventually granted as against all appellants. 2

2 On December 4, 1992, following oral argument of the Wilson appeal before this court, the Harbian and Winfrey cases were consolidated with the Wilson appeal. All parties agree that these cases arose from the same occurrence and are identical in material fact and law. The Harbians and the Winfreys rely on the briefs and oral argument submitted in the Wilson appeal. The Wilsons, Harbians and Winfreys will be collectively referred to as “appellants.”

The appellants’ theory of recovery against the BSA is based on an alleged agency relationship between the BSA and the adult volunteers supervising the scouts. The district court granted the BSA’s motion for summary judgment, concluding [**4] that appellants failed to produce any evidence that the national organization of the BSA had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. The district court also granted the United States’ motion for summary judgment based on its finding that the United States owed no duty of care to the scouts because they were recreational users of the property under Missouri’s Recreational Land Use Statute. See Mo. Rev. Stat. § 537.346. After careful consideration of each allegation raised by the appellants, we affirm the decision of the district court.

I. United States of America

The action against the United States arises [HN1] under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, thus, the “United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.” Id. at § 2674. Further, the United States is “entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States . . . as well as any other defenses to which the United States is entitled.” [**5] Id. Therefore, the United States is entitled to [*956] the benefit of state recreational use statutes, if applicable, when it is sued under the Federal Tort Claims Act. See Hegg v. United States, 817 F.2d 1328, 1329 (8th Cir. 1987) (construing the Iowa Recreational Use Statute); Umpleby v. United States, 806 F.2d 812, 815 (8th Cir. 1986) (applying North Dakota’s Recreational Use Statute).

[HN2] The Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348 immunizes landowners who make their property available for the recreational use of others without an entry charge. The statute specifically provides:

[HN3] Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Id. at § 537.346. “Charge” is defined in the statute as:

[HN4] the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational [**6] purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.

Id. at § 537.345(1). “Recreational use” as defined in the statute includes outdoor activities, such as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports. Id. at § 537.345(4).

[HN5] While providing for a general immunity against liability, a landowner may nonetheless be liable if found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Id. at § 537.348(1). Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes. Id. at § 537.348(3)(d).

The appellants contend that the Missouri Recreational Land Use Statute does not apply to the United States because (1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States [**7] receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.

A.

Fort Leonard Wood is an open military post, where members of the public can freely enter without being stopped or questioned by guards or military police. Specified areas are open to the public for fishing, hunting, hiking, camping, picnicking or canoeing. Many tours are given to various groups, such as senior citizens and church and school groups, free of charge. The Fort also offers a Youth Tour Program which is open only to national youth organizations, such as the Boy Scouts of America. The program includes activities which are not available to the general public, such as visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.

If a troop in the Youth Tour Program chooses to stay overnight in Building 1614, a $ 2.00 per person/per night lodging fee is charged. This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, [**8] soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night. Significantly, the lodging fee is charged on a per person/per night basis, while there is no charge for the tour itself, which is offered only on Saturdays.

The interpretation of the various recreational use statutes is controlled by the precise language of each statute. Courts that have construed recreational land use statutes with language similar to the Missouri statute have interpreted “charge” as ” [*957] an admission fee to enter the land.” For example, in Genco v. Connecticut Light and Power Co., 7 Conn. App. 164, 508 A.2d 58, 62 (Conn. App. Ct. 1986), noting that the Connecticut General Statute § 52-557f defines “charge” as “the admission price or fee asked in return for invitation or permission to enter or go upon the land,” the court held that “the only way to avoid inconsistent application of the Act . . . is to interpret the word ‘charge’ as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.” Id. (emphasis added).

Furthermore, a parking fee paid by [**9] a camper is not a charge within the meaning of the Nebraska Recreational Use Statute, which defines “charge” as “the amount of money asked in return for an invitation to enter or go upon the land.” Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309, 313 (Neb. 1984) (emphasis added). In Garreans, the court noted that the

charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee . . . did not entitle . . . [the person paying the fee] to a greater right to use any of the park’s other facilities than that had by the general public.

Id.

As in Jones v. United States, 693 F.2d 1299, 1303 (9th Cir. 1982), where a one dollar fee was charged the injured plaintiff to rent an inner tube for snow sliding, the fee paid by the scouts to bunk in Building 1614 was not “charged to members of the public for entry on to the land or for use of the land.” Id. Rather, the scouts paid the $ 2.00 fee to bunk in Building 1614, but entered the park without paying a fee. The Jones court held that the plaintiff [**10] “could have used . . . the Park without making any payment if she had brought her own tube.” Id. Similarly, the appellants could have used Fort Leonard Wood without making this $ 2.00 payment if they had chosen not to stay overnight. The Missouri statute does not provide that the immunity for an entire parcel should be nullified if a landowner charges for admission to a different portion of the parcel, nor would such a rule be consistent with the statute’s purpose. “Consideration should not be deemed given . . . unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admission fee.” Moss v. Department of Natural Resources, 62 Ohio St. 2d 138, 404 N.E.2d 742, 745 (Ohio 1980) (emphasis added).

The appellants herein paid $ 2.00 per night for the right to stay overnight in Building 1614. There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all of the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” [**11] fee and that it is assessed on a per person/per night basis. The appellants have failed to present any evidence that the fee was required in order to enter Fort Leonard Wood.

B.

The remainder of appellants’ arguments with regard to the liability of the United States are also without merit. The appellants contend that the United States is outside the protection of the Missouri Recreational Land Use Statute because the scouts are not “members of the general public.” They contend that because only members of national youth organizations are eligible to participate in the Youth Tour Program, the scouts should be treated as guests or invitees. Appellants’ argument, however, relies upon a distinction not made within the language of the Missouri Recreational Land Use Statute. The plain language of the statute indicates that a landowner owes no duty of care “to any person who enters on the land without charge” for recreational purposes. Mo. Rev. Stat. § 537.346 (emphasis added).

We also reject the appellants’ argument that the United States is outside the protection of the Missouri statute because the Army’s purpose in allowing admission to Fort Leonard Wood is to develop public [*958] goodwill [**12] in fostering a business purpose. See Mo. Rev. Stat. § 537.345(1). When Boy Scout troops visit the Fort, they are not recruited or encouraged in any way to join the Army, nor are any records kept of scouts who have participated in the Youth Tour Program. Further, appellants have failed to establish that the Army operates as a business within the intended meaning of the statute.

Finally, appellants’ argument that Building 1614 was essentially a commercial “hotel” located in a “populated, residential area,” and therefore falls within the “noncovered land” exception of section 537.348(3)(d) is without merit. The record does not support appellants’ contention that the Fort was “predominately used for residential purposes,” nor that Building 1614 was operated as a commercial enterprise. Nor can we accept appellants’ argument that the United States acted with willful and wanton disregard for the safety of the troops or negligently failed to protect them against an ultrahazardous condition. There simply has been no evidence presented to establish either of these theories.

The judgment of the district court granting summary judgment in favor of the United States is affirmed.

II. Boy [**13] Scouts of America

The appellants also challenge the district court’s grant of summary judgment in favor of the Boy Scouts of America. The appellants contend there is a genuine issue of material fact as to whether an agency relationship existed between the BSA and the adult volunteers of Troop 392 so as to provide for vicarious liability for any negligence on the part of the adult leaders. The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.

The appellants first argue that the district court improperly considered the affidavit of Lloyd Roitstein, Area Director in the North Central Region of the Boy Scouts of America, in considering the relationship between the national organization and the individual troops because the affidavit was not based on personal knowledge. We agree with the district court that Roitstein’s role as an Area Director [**14] establishes his personal familiarity with the Boy Scout organization and conclude that the affidavit was properly considered.

The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.

[HN6] Under the doctrine of respondeat superior an employer is liable for the negligent acts or omissions of his employee which are committed within the scope of his employment. Light v. Lang, 539 S.W.2d 795, 799 (Mo. App. Ct. 1976). [**15] Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. Usrey v. Dr. Pepper Bottling Co., 385 S.W.2d 335, 338 (Mo. Ct. App. 1964). The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” Id. at 339. If there is no right to control, there is no liability.

Courts of other jurisdictions that have addressed the issue now before this court have rejected the imposition of liability against the BSA or the local councils, [*959] noting the lack of control these entities exercise over individual troops and their sponsoring organizations. For example, in Mauch v. Kissling, 56 Wash. App. 312, 783 P.2d 601 (Wash. Ct. App. 1989), the court found there was no basis for the doctrine of apparent authority because the plaintiff had not presented evidence that BSA consented to or had control of the scoutmaster’s activities. Id. at 605.

Similarly, in Anderson v. Boy Scouts of America, Inc., 226 Ill. App. 3d 440, 589 N.E.2d 892, 168 Ill. Dec. 492 (Ill. App. Ct. 1992), [**16] the court found the plaintiffs had failed to establish that an agency relationship existed between the plaintiffs and the local council or the BSA:

We find no provisions in the charter, bylaws, rules and regulations promulgated by the BSA, nor can plaintiffs cite to any provisions within these documents, which specifically grant BSA or its district councils direct supervisory powers over the method or manner in which adult volunteer scout leaders accomplish their tasks.

Id. at 894-95.

Recently, the Missouri Court of Appeals considered the Wilson’s cause of action against the St. Louis Area Council of the Boy Scouts of America, arising from the same circumstances of the instant case. The Missouri court dismissed the suit against the local council, finding that “Council neither controlled the actions of the troop leaders nor ran the program at Fort Leonard Wood.” While the Missouri state court decision involved the local council, it is instructional here because the relationship between the national organization and the individual troop leaders is even more remote.

Appellants also contend that sufficient facts establish a jury question as [**17] to whether a principal/agent relationship existed under a theory of implied agency or apparent authority. Implied agency and apparent authority, however, are based on manifestations by the principal which causes a third person reasonably to believe that an agent of the principal is authorized to do certain acts. Barton v. Snellson, 735 S.W.2d 160, 162 (Mo. Ct. App. 1987). Appellants contend the use of common uniforms, emblems, books and awards in the scouting program, a national insurance program, issuance of the national membership card and other printed materials locally, as well as other indicia of a relationship between BSA and the local council, create a manifestation of authority upon which an innocent third party might reasonably rely.

Appellants fail, however, to produce any evidence that BSA manifested that it had direct control over the specific activities of individual troops or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. On the contrary, the Boy Scout Handbook clearly provides, “what the troop does is planned by the patrol leaders’ council.” The organizational structure of the BSA [**18] leaves the control of the specific activities at the level closest to the individual troop. Appellants have produced no direct or circumstantial evidence to suggest that in this case BSA manifested control.

In summary, we conclude that the district court properly granted summary judgment in favor of the Boy Scouts of America and the United States. The judgment of the district court is affirmed.


Grand Canyon Gondola Project seems to be Derailed

Grand Canyon Trust
Hello Friends,Good news! Years of fighting a well-funded campaign to build a mega resort and tramway on the Grand Canyon’s east rim have finally paid off.Save the Confluence family members and Navajo citizens opposed to the proposed “Escalade” development are celebrating. Escalade’s promoters are no longer employed in the executive office of the Navajo Nation.

On May 12, Navajo President Russell Begaye took office. The next day he issued a firm statement against Escalade. Begaye’s vice president, Jonathan Nez, added “any attempts to pass legislation to proceed with the development would be vetoed by the president.”

Save the Confluence family members expressed relief and thanked the new leaders for ending their “nightmare” under the Ben Shelly administration: “We believe ‘the two mighty’ rivers, the Colorado and the Little Colorado, have spoken.” They concluded that “while the president’s stance is being recognized as good and welcome news, we will remain cautious of the Navajo Nation Council.”

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As you know, protecting the Grand Canyon requires constant vigilance. The Forest Service is currently seeking public comments on whether to pave the way for a large subdivision and several million square feet of retail space near Tusayan, within half a mile of Grand Canyon National Park. You have until June 2, 2015 to comment.

The Grand Canyon Trust pledges our ongoing assistance to Save the Confluence families and efforts to permanently protect the confluence and Grand Canyon from inappropriate development.

Thanks to all for your enduring support to Keep the Canyon Grand.

With gratitude,

Roger Clark

Grand Canyon Program Director

P.S. Your donations make this work possible. Make a gift today.

Photo courtesy of Jack Dykinga


FIS establishes new regulations for ski racing helmets. Standards filter down to other ski races and eventually maybe the public.

Basis of the new test for ski helmets is the helmet must survive a drop test that is approximately three feet higher and at a speed approximately three mph faster.

The FIS, (International Ski Federation) has established new regulations for helmets that will be worn in FIS competitions. Those are the world cup level ski races held around the world.

After FIS adopted these new standards, the USSA (US Ski Association) adopted the same standards for many of their races this year and more the following years.

I’m not going to try to interpret the regulations here you are better off trying to figure it out on your won. Seriously, the regulations are the most convoluted work I’ve read and were made to make it impossible to understand. On top of that they make it impossible to copy the information from their website, even off PDF’s. (Why don’t they want this information to be known?)

1)   To show the new helmets meet the new standards they are going to have the CE Mark and conform to one of the following regulations.

a)   DIN EN 1077

b)   ASTM F2040

c)   SNELL S98 or RS 98

2)   If the helmet is designed for GS (Giant Slalom), SG (Super G) or DH (Downhill) racing it must have a conformity label affixed in a non-removable way, at the back of the helmet, in a position not be covered by the goggle strap. The conformity label must contain the text “Racing helmet to conform to FIS specifications 2013.”

Why?

If you want a better ski helmet look for one that meets the new requirements. It can take a bigger impact.

It is going to be a simple helmet, hard ear covers, no spoilers, etc. These helmets are going to be pretty dull, little venting and nothing except the stickers you put on them. However, if you want to protect your head….

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com         James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, USSA, FIS, Skiing, Ski Helmet, GS, DH, SG, Downhill, Super G, Giant Slalom, International Ski Federation, US Ski Association,

 


Death is something we should have the freedom to choose as part of our life, something we expect to have as a basic freedom.

The opportunity to live life as you want includes the opportunity to die attempting to life.

Dean Potter was living life to the absolute when he died. Dean was exercising his freedom to live. He was violating park rules on paragliding and for that and for the fact he died he will be condemned.

But no one will ever be able to say Dean did not live.

Whether you liked Dean or not, you have to support the fact he died free, living life has he wanted.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com         James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,  Dean Potter, Yosemite, Paragliding,

 

 

 

 

 

 

 


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