Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

Jerry Atcovitz and Roslyn Atcovitz, H/W, v. Gulph Mills Tennis Club, Inc, Jkst, Inc. and Gulph Mills/Jkst Tennis Club, Inc., Lafayette Ambulance Rescue Squad I; appeal of: Gulph Mills Tennis Club, Inc., Jkst, Inc. and Gulph Mills/Jkst Tennis Club

No. 29 EAP 2001

SUPREME COURT OF PENNSYLVANIA

571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

April 8, 2002, Argued

December 20, 2002, Decided

PRIOR HISTORY: [***1] Appeal from the Order of the Superior Court entered January 16, 2001, at No. 3061 EDA 1999, reversing and remanding the Order of the Court of Common Pleas of Philadelphia County, Civil Division, entered September 13, 1999, at No. 1357 January Term 1998. Trial Court Judge: Flora Barth Wolf, Judge. Intermediate Court Judges: Joseph A. Del Sole, President Judge, Joseph A. Hudock and Correale F. Stevens, JJ.

Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 2001 Pa. Super. LEXIS 16 (2001).

DISPOSITION: Reversed. Trial court’s grant of summary judgment in favor of Gulph Mills affirmed.

COUNSEL: For Gulph Mills Tennis Club, Inc., APPELLANT: Lucien R. Tharaud, Esq.

For Gulph Mills/JKST Tennis Club, Inc., APPELLANT: Charles W. Craven, Esq.

For Jerry Atcovitz and Rosyln Atcovitz, h/w, APPELLEE: Alfred Anthony Brown, Esq. and J. Craig Currie, Esq.

JUDGES: BEFORE: ZAPPALA, C.J., AND CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR AND EAKIN, JJ. MR. CHIEF JUSTICE ZAPPALA. Mr. Justice Cappy files a concurring opinion. Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.

OPINION BY: ZAPPALA

OPINION

[**1220] MR. CHIEF JUSTICE ZAPPALA [*583]

We granted allowance of appeal in this case to determine whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter “AED,” on its premises for emergency use. 1 For the reasons that follow, we hold that such clubs do not owe a duty to have an AED available on their premises.

1 An AED is [HN1] “[a] portable device that uses electric shock to restore a stable heart rhythm to an individual in cardiac arrest.” 42 Pa.C.S. § 8331.2(f).

[***2] On January 16, 1996, Jerry Atcovitz suffered a stroke, secondary to a heart attack, while playing tennis at the Gulph Mills Tennis Club. 2 Within a minute of his collapse, two tennis club members administered cardiopulmonary resuscitation and called for an ambulance. Approximately ten minutes later, emergency medical technicians arrived and administered a series of defibrillation shocks with an AED and transported Atcovitz to a hospital. 3 Although he survived the incident, Atcovitz “sustained severe and permanent injuries, including anoxic encephalopathy with multiple permanent central nervous system disorders. He is no longer able to think or concentrate, is no longer able to walk or get out of bed unassisted, and requires assistance in virtually every aspect of his life.” R. 42a-43a.

2 Atcovitz was then sixty-four years old and had a twenty-year history of heart problems, including a previous heart attack and bypass surgery. Appellees do not assert that Gulph Mills had knowledge of such history.

3 Atcovitz did not respond to any of the AED shocks administered by the emergency medical technicians, but did subsequently respond to a transcutaneous pacemaker. From this, Gulph Mills remarks that Atcovitz was suffering from “atrial fibrillation,” as opposed to “ventricular fibrillation.” Thus, Gulph Mills implies that, even if Atcovitz would have received electrical defibrillation immediately after he collapsed, it would not have had any beneficial effect. Appellant’s Br. at 6; see also R. 30a, 147a-149a. This Court, however, must view the record in the light most favorable to the nonmoving party in reviewing a grant of summary judgment. Thus, we must operate under the assumption that earlier use of an AED would have mitigated Atcovitz’s injuries.

[***3] [*584] Appellees, Jerry Atcovitz and his wife, Roslyn, sued Gulph Mills for negligence in the Court of Common Pleas of Philadelphia County. 4 Specifically, they claimed that, “had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and, therefore, that [Gulph Mills] is liable to him for damages.” Trial Ct. Op. at 2. In its defense, Gulph Mills asserted that, at the time of Atcovitz’s injury, its employees would not have been permitted by law to use an AED.

4 Atcovitz also sued Lafayette Ambulance Rescue Squad, but the parties eventually agreed to dismissal of the rescue squad with prejudice. R. 111a-112a.

In an attempt to preclude Gulph Mills from asserting its defense, Appellees moved for partial summary judgment, which the trial court denied. Immediately prior to trial, however, Appellees orally moved for reconsideration of their motion. At the same time, Gulph Mills cross-moved [**1221] for summary judgment. 5 The trial court granted Gulph Mills’s [***4] cross-motion for summary judgment and dismissed the case. The court based its grant of summary judgment on the Emergency Medical Services Act, 6 hereinafter the “EMS Act,” and the regulations issued pursuant thereto. The court concluded that, at the time of Atcovitz’s injury, Gulph Mills’s employees were legally prohibited from using an AED. Thus, the court held that Gulph Mills “cannot be held negligent for failure to use the device.” Trial Ct. Op. at 4.

5 The Superior Court, citing Pennsylvania Rule of Civil Procedure 1035.2, reproved the trial court for considering a motion for summary judgment on the day of trial. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1281 n.2 (Pa. Super. 2001). The court’s admonition, however, seemed to overlook that the parties had agreed to reconsideration of Appellees’ motion and consideration of Gulph Mills’s cross-motion. R. 8a-14a. Indeed, the motions presented a pure question of law that would avoid the time and expense of trial if Gulph Mills prevailed, which, ultimately, it did.

6 Act of July 3, 1985, P.L. 164, No. 45, § 1, as amended, 35 P.S. §§ 6921- 6938.

[***5] Appellees filed a timely appeal to the Superior Court, which reversed the trial court’s order granting summary judgment. See Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, [*585] 1281 n.2 (Pa. Super. 2001). The court opined that the trial court’s reliance on the EMS Act was inappropriate because it was designed for and aimed at the administration of emergency services by trained and licensed professionals. As the EMS Act did not contain any provision addressing emergency actions by untrained lay persons, i.e., Gulph Mills’s employees, the court concluded that the trial court’s grant of summary judgment could not be supported by reference to the EMS Act or its implementing regulations.

The court also addressed the effect of 42 Pa.C.S. § 8331.2, hereinafter the “AED Good Samaritan Act,” which provides “Good Samaritan civil immunity” for use of an AED in certain instances. It specifically provides immunity for untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Although the [***6] AED Good Samaritan Act was enacted after Atcovitz’s injuries, the court found that its passage evinced the Legislature’s desire that use of AEDs not be restricted solely to trained professionals. Accordingly, the court held that the trial court erred as a matter of law in granting Gulph Mills’s motion for summary judgment. See Atcovitz, 766 A.2d at 1282. Subsequently, Gulph Mills petitioned this Court for allowance of appeal, which we granted. See Atcovitz v. Gulph Mills Tennis Club, Inc., 566 Pa. 656, 782 A.2d 541 (Pa. 2001) (table).

[HN2] This Court’s scope of review of an order granting summary judgment is plenary. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118 (Pa. 2000). Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Id. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (Pa. 2001). [***7] [*586] The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Basile, 761 [**1222] A.2d at 1118. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Id. (citing Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (Pa. 1995)).

[HN3] The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant. Orner v. Mallick, 515 Pa. 132, 527 A.2d 521, 523 (Pa. 1987) (citing Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n.5 (Pa. 1983)); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 at 164 (5th ed. 1984). Here, we must focus our analysis on [***8] the threshold element of duty. 7 Only therein may we resolve the fundamental question of whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.

7 Appellees argue that the issue of duty was not considered by the lower courts and, therefore, may not be addressed by this Court. Appellees’ Br. at 4-5 (citing Pa.R.A.P. 302). Instead, Appellees assert that “the sole question under review is whether the law of this Commonwealth, at the time of Mr. Atcovitz’s cardiac arrest in January of 1996, made it illegal for Gulph Mills to have and use an [AED].” Id. at 4 (emphasis in original). Appellees’ characterization of the issue is too narrowly focused. Gulph Mills’s illegality defense is a subsidiary argument of the broader issue of duty, i.e., whether there was no duty because carrying an AED would have been illegal. Thus, the issue properly before this Court’s plenary review remains whether Gulph Mills owed a duty of care to Atcovitz to acquire and maintain an AED on its premises for emergency use.

[***9] [HN4] “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Law of Torts, supra, § 53 at 356. This Court has embraced [*587] an oft-quoted passage articulating the considerations that underlie the concept of common law duty:

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the [***10] community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”

D. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953) (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting)); Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (Pa. 2000); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (Pa. 1979). Thus, [HN5] the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society. Althaus, [**1223] 756 A.2d at 1169 (citing Gardner v. Consolidated Rail Corp., 524 Pa. 445, 573 A.2d 1016, 1020 (Pa. 1990)).

In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance [HN6] in determining whether a common law duty of care exists: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability [***11] of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 756 A.2d at 1169. [*588] Within this construct, we must resolve whether Gulph Mills owed a duty to Atcovitz to acquire and maintain an AED.

Here, our analysis turns upon the fifth Althaus factor, i.e., the overall public interest in the proposed solution. The Legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.

Looking first to the EMS Act, the Legislature aspired [HN7] “to assure readily available and coordinated emergency medical services of the highest quality to the people of Pennsylvania.” 35 P.S. § 6922(a). To accomplish this purpose, the Secretary of Health is required [HN8] “to plan, guide, assist and coordinate the development of areawide emergency medical services systems into a unified Statewide [***12] system and to coordinate the system with similar systems in neighboring states.” 35 P.S. § 6925(a). For that reason, [HN9] the Department of Health has adopted comprehensive regulations implementing the provisions of the EMS Act, including regulations establishing the qualifications, duties, and certification procedures for those involved in providing emergency medical services. See 28 Pa. Code §§ 1001.1- 1015.2. Similar to the EMS Act, the stated purpose of the regulations [HN10] “is to plan, guide, assist and coordinate the development of regional EMS systems into a unified Statewide system and to coordinate the system with similar systems in neighboring states, and to otherwise implement the Department’s responsibilities under the act consistent with the Department’s rulemaking authority.” Id. at § 1001.1.

To achieve these goals, the EMS Act and its implementing regulations explicitly classify and identify the capacities, training requirements, and qualifications of individuals who are authorized to deliver emergency medical services. See, e.g., 35 P.S. § 6931 (delineating [***13] emergency medical services personnel). Although the Superior Court’s observation [*589] that the EMS Act and its regulations do not specifically refer to the use of AEDs by untrained individuals is correct, we do not agree with the court’s conclusion that the EMS Act and its regulations are irrelevant to the issue of whether Gulph Mills had a duty to use an AED on its premises. Rather, they are relevant to demonstrate that the acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Indeed, the implication of the Legislature’s exclusion of untrained laypersons from the EMS Act and its regulations is to preclude unqualified and untrained individuals from administering emergency medical services using an AED. We must infer that, [HN11] under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters. Pane v. Commonwealth, Dep’t of Highways, 422 Pa. 489, 222 A.2d 913, 915 (Pa. 1966) (citing Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824, 832 (Pa. 1962)). It [**1224] would be absurd for the governmental system charged with rendering [***14] effective emergency medical care to hinder the delivery of that care using AEDs through the system, while ordinary citizens would be duty-bound to acquire, maintain, and use AEDs free from any regulation by the Department of Health.

Likewise, the Superior Court also misconstrued the AED Good Samaritan Act as evincing the Legislature’s intention that the EMS Act should not restrict the use of AEDs to trained professionals. The AED Good Samaritan Act, which was adopted two years after Atcovitz sustained his injuries, provides civil immunity for trained users of AEDs and requires that [HN12] “expected users shall complete training in the use of an AED. . . .” 42 Pa.C.S. §§ 8331.2(a), (c). [HN13] As an exception to that general rule, the AED Good Samaritan Act also provides civil immunity to untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Significantly, the AED Good Samaritan Act defines [HN14] “good faith” as including “a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed [***15] until emergency [*590] medical services personnel arrive or the person is hospitalized.” Id. at § 8331.2(f).

Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual. Indeed, the exception expresses that personnel under the EMS Act are the preferred users of AEDs: it applies only to instances where emergency medical services personnel are unavailable. In addition, it does not indicate that the Legislature aimed to dispense with the regulations governing the training and use of AEDs. Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to acquire, maintain, and use such a device on its premises. 8

8 Even if the AED Good Samaritan Act imposed a duty upon Gulph Mills to carry an AED, it would not control this case. The Legislature did not adopt it until two years after Atcovitz sustained his injuries

[***16] Neither the EMS Act nor the AED Good Samaritan Act imposed a duty upon Gulph Mills to acquire, maintain, and use an AED. Appellees do not cite any other case, statute, or regulation that would have imposed such a duty on Gulph Mills at the time of Atcovitz’s injuries in January 1996. Because Gulph Mills did not owe a duty to carry an AED, Appellees could not have established a prima facie claim of negligence. See Orner, 515 Pa. 132, 527 A.2d 521. Thus, there was no genuine issue of material fact and Gulph Mills was entitled to judgment as a matter of law. See Basile, 563 Pa. 359, 761 A.2d 1115. We reverse the order of the Superior Court and affirm the trial court’s grant of summary judgment in favor of Gulph Mills.

Mr. Justice Cappy files a concurring opinion.

Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.

CONCUR BY: CAPPY

CONCUR

CONCURRING OPINION

MR. JUSTICE CAPPY

I join the majority opinion to the extent that it holds that we must balance the factors in Althaus ex rel. Althaus v. [*591] Cohen, 562 Pa. 547, 756 A.2d 1166 (Pa. 2000). After evaluating all five factors, I agree [***17] that no duty exists here.

DISSENT BY: NIGRO

DISSENT

[**1225] DISSENTING OPINION

MR. JUSTICE NIGRO

While I do not necessarily disagree with the majority’s conclusion that a tennis club does not owe a duty to its members to acquire and maintain an automated external defibrillator (“AED”) on its premises for emergency use, that issue is not before us here. The only issue that the Superior Court considered below was whether the Emergency Medical Services Act, 35 Pa.C.S. §§ 6921- 6938, and the Department of Health regulations promulgated pursuant to that Act specifically prohibited Appellants from using an AED. Concluding that they did not, the Superior Court reversed the trial court’s entry of summary judgment in favor of Appellants on the basis of those authorities. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1282 (Pa. Super. 2001) (“Although we make no finding on the ultimate merits of [plaintiffs’] claim, we find that the trial court erred as a matter of law in granting [defendant’s] motion for summary judgment on the basis of the statutes and regulations cited.”) As I agree [***18] with the Superior Court’s conclusion in that regard, I would affirm the Superior Court’s order and remand the case to the trial court to consider in the first instance whether there is any basis on which to conclude that Appellants owed a duty to Appellees.

Mr. Justice Saylor joins the dissenting opinion.


America’s National Parks Received a New Record with the Number of Visitors attending 2015

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America’s National Parks: Record Number of Visitors in 2015

WASHINGTON – WASHINGTON – More than 305 million people visited national parks in 2015, eclipsing the all-time visitation record that the National Park Service saw in the previous year. The unofficial visitation numbers for 2015 were announced by National Park Service Director Jonathan B. Jarvis, as the National Park Service (NPS) is celebrating its centennial year.

“The increasing popularity of our national parks comes as we are actively reaching out to new audiences and inviting them to explore the depth and breadth of the national park system,” Jarvis said. “The 409 parks we care for preserve natural, cultural and historic landscapes across 84 million acres in all 50 states, the District of Columbia and U.S. Territories, and they tell stories that reflect the great diversity of our nation.”

Record visitation tests the capacity of the park system and challenges parks to continue to provide great experiences for all visitors. Jarvis said park managers are adjusting to make sure they have sufficient staff to provide interpretive programs, answer visitor questions, respond to emergencies and to keep restrooms, campgrounds and other facilities clean.

Park visitors can plan their trips to avoid peak crowds by visiting the most popular parks in spring and fall and by visiting early in the morning or later in the day. Visitors can also take advantage of shuttles and walking trails at some parks, including Yosemite and Glacier and Acadia national parks.

“Even with record breaking visitation, visitors can still find quiet places in the parks for those willing to seek them out,” Jarvis said. “I can take you to Yosemite Valley on the Fourth of July and within five minutes get you to a place where you are all alone.”

Much of the increase in national park visitation is the result of the National Park Foundation’s “Find Your Park” media campaign. The campaign has sparked interest from travelers and also from communities near national parks, state tourism agencies and Congress. In late December 2015, Congress approved a nine percent funding increase for the National Park Service, which will help the agency continue to provide excellent visitor services as visitation increases.

“The increase in Congressional appropriations comes at a critical time for the National Park Service and will help us to serve the growing number of visitors,” Jarvis said. “We look forward to continuing to work with Congress as it considers additional legislation in support of the National Park Service Centennial, which would further improve the national parks by encouraging philanthropy and volunteerism, while also allowing us to improve visitor services and connect with a new generation of national park visitors.”

By the Numbers: Unofficially, the NPS recorded more than 305 million visits during 2015. That is an increase of more than 12 million visits, and more than four percent, over the 2014 figure of 292.8 million visits. About 365 of 409 parks in the national park system record visitation numbers. The NPS has recorded more than 13 billion visits to parks since park managers began counting visitors in 1904, some 12 years before the NPS was created. Official statistics including the most-visited parks of the national park system and the most-visited national parks will be released in late February.

www.nps.gov


Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

Paul A. Gemmink, Plaintiff-Appellant, — v. — Jay Peak Inc., Defendant-Appellee.

Docket No. 14-2725-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

807 F.3d 46; 2015 U.S. App. LEXIS 20768

August 19, 2015, Argued

November 30, 2015, Decided

PRIOR HISTORY: [**1] Pro se plaintiff Paul Gemmink was injured while skiing at defendant Jay Peak’s ski resort. Although Gemmink could not recall the circumstances of his injury, he came to believe that he had been injured in a collision with another skier as a result of Jay Peak’s negligent maintenance of ski jumps on its property. As a result, Gemmink brought an action to recover against Jay Peak for his injuries. The District Court granted summary judgment to Jay Peak, finding that Gemmink had failed to establish that any negligence on the part of Jay Peak was the cause of Gemmink’s injuries. We affirm the judgment of the District Court.

Gemmink v. Jay Peak, Inc., 2014 U.S. Dist. LEXIS 87912 (D. Vt., June 23, 2014)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The district court properly granted a ski resort summary judgment dismissing plaintiff’s negligence suit because the causal link between the resort’s assumed negligence in its maintenance of ski jumps and the injuries incurred by plaintiff was far too attenuated to sustain his claim, as there was no evidence as to how he sustained those injuries.

OUTCOME: The judgment was affirmed.

CORE TERMS: causation, ski, summary judgment, trail, skier, jump, sporting events, happened, intersection, ski jump, circumstantial evidence, coming, stairs, evidence to support, access to information, inter alia, expert testimony, assumption of risk, indifferent, nonmoving, proffered, opposing, stronger, proffer, harmful, causal, skiing, dark, infer

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Appellate Review > Standards of Review

[HN1] An appellate court reviews a grant of summary judgment de novo.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Absence of Essential Element of Claim

Evidence > Procedural Considerations > Burdens of Proof > Allocation

[HN2] Where the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can point to an absence of evidence to support an essential element of the nonmoving party’s claim.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Nonmovants

Civil Procedure > Summary Judgment > Evidence

[HN3] In ruling on a motion for summary judgment, the court draws all inferences in favor of the nonmoving party, but the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.

Evidence > Relevance > Circumstantial & Direct Evidence

Torts > Negligence > Causation > Cause in Fact

Evidence > Procedural Considerations > Burdens of Proof > Allocation

Evidence > Procedural Considerations > Burdens of Proof > Burden Shifting

[HN4] A showing of cause-in-fact almost always involves circumstantial evidence. Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. Is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that in fact occurred? In such circumstances, a jury can assume that the injury occurred as the expected or ordinary result of the defendant’s conduct. If for some reason it was not the ordinary result of the defendant’s conduct, that the “extraordinary” had occurred must be shown by the party wishing to counter causation. For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Torts > Negligence > Causation > Cause in Fact

Evidence > Procedural Considerations > Burdens of Proof > Allocation

Evidence > Relevance > Circumstantial & Direct Evidence

[HN5] In addition to considering the strength of the circumstantial evidence linking injury and harm, the cases dealing with questions of causation take into account two other factors. First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis of finding negligence under the doctrine of res ipsa loquitur. But it also serves as a basis for finding causation. Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

Torts > Negligence > Causation > Cause in Fact

Evidence > Relevance > Circumstantial & Direct Evidence

[HN6] In deciding whether sufficient proof of causation has been proffered to get to a jury, courts consider whether the law of the jurisdiction is indifferent as to error in one direction or the other. If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished.

Torts > Negligence > Causation > Cause in Fact

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Torts > Negligence > Defenses > Assumption of Risk > Procedure

[HN7] By statute, although assumption of risk has generally been subsumed in comparative negligence, Vt. Stat. Ann. tit. 12, § 1036, it has been expressly retained as to sporting events, Vt. Stat. Ann. tit. 12, § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently “obvious and necessary” as to be assumed generally forms a jury question under Vermont law. Vermont wants courts to treat errors in this area pretty much symmetrically.

COUNSEL: PAUL A. GEMMINK, Pro se.

THOMAS P. AICHER, Cleary Shahi & Aicher, P.C., Rutland, VT, for Defendant-Appellee.

JUDGES: Before: CALABRESI, STRAUB, POOLER, Circuit Judges. Judge POOLER joins only Parts I and II(B) of the opinion.

OPINION BY: CALABRESI

OPINION

[*47] CALABRESI, Circuit Judge:

I. BACKGROUND

On February 21, 2011, Paul Gemmink and his daughter, Christine, visited the [*48] Jay Peak ski resort in Jay, Vermont. The two skied down the Northwest Passage trail, with Christine preceding her father as she turned onto the Kokomo trail, which intersected the Northwest Passage trail. When Christine reached the base [**2] of the ski lift at the end of the trail, she noticed that her father had failed to follow her descent. Instead, a Jay Peak ski patroller would find Gemmink “combative and in obvious pain,” lying on his back by a tree on the left side of the Kokomo trail, near the Kokomo-Northwest Passage intersection. App’x at 31. Gemmink had been rendered unconscious and, though argumentative, could not recall or provide an account of the incident. Christine, however, had observed a ski jump situated near the trees on the right side of the intersection, leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink. Id. at 30, 32. Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.

Proceeding pro se, Gemmink brought this action against Jay Peak to recover for injuries that he claims were sustained as a result of Jay Peak’s negligence. Specifically, Gemmink asserts that Jay Peak negligently permitted dangerous jumps on [**3] its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side. The District Court (Murtha, J.) granted Jay Peak’s motion for summary judgment, finding that Gemmink had failed to establish that Jay Peak’s alleged negligence was the cause of his injuries. Gemmink now appeals.

II. DISCUSSION

A.

[HN1] This Court reviews a grant of summary judgment de novo. Amerex Group, Inc. v. Lexington Ins. Co., 678 F.3d 193, 199 (2d Cir. 2012). [HN2] Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). [HN3] The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015).

Before the district court, it was assumed that the negligence of Jay Peak in the structure and maintenance of the jumps was sufficiently made out to survive summary judgment. Accordingly, for purposes of this opinion, we will assume arguendo that Gemmink has established such [**4] a potential basis for liability on the part of Jay Peak. The issue before us, then, is a not-infrequent one in torts cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.

As Professor Abraham has demonstrated in his recent article, [HN4] a showing of cause-in-fact almost always involves circumstantial evidence. See Kenneth S. Abraham, Self-Proving Causation, 99 Va. L. Rev. 1811, 1815-16 (2013). Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is [*49] likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that in fact occurred?

In such circumstances, as then-Chief Judge Cardozo set out in Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (N.Y. 1920), a jury can assume that the injury occurred as the expected or ordinary result of the defendant’s conduct. Id. at 816. If for some reason it was not the ordinary result of the defendant’s conduct, that the “extraordinary” had occurred must be shown by the party [**5] wishing to counter causation. For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

[HN5] In addition to considering the strength of the circumstantial evidence linking injury and harm, however, the cases dealing with questions of causation take into account two other factors. First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis [**6] of finding negligence under the doctrine of res ipsa loquitur. See, e.g., Griffen v. Manice, 166 N.Y. 188, 194-96, 59 N.E. 925 (1901). But it also serves as a basis for finding causation. See Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d 112, 120-21 (2d Cir. 2006); Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411, 431-32 (2d Cir. 2004) (Calabresi, J., concurring). Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

But cases of this sort also involve a third factor. Thus, [HN6] in deciding whether sufficient proof of causation has been proffered to get to a jury, courts consider whether the law of the jurisdiction is indifferent as to error in one direction or the other. If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished. Compare Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d at 121 (finding summary judgment against plaintiff appropriate [**7] because, inter alia, New York courts placed only a minimal duty on the defendant to avert the type of harm incurred, which is “close to saying that if an error is to be made in this context, it is better made in favor of the defendant“) (emphasis added), with Williams v. KFC Nat. Mgmt. Co., 391 F.3d at 432 (finding summary judgment against plaintiff inappropriate because, inter alia, of “the absence of any reason to [*50] prefer erring in favor of [the defendant] rather than the plaintiff”).

B.

With these three factors in mind, we turn to the case before us. The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency. And plaintiff has failed to proffer expert testimony suggesting a stronger link. See Human Rights Comm’n v. LaBrie, Inc., 164 Vt. 237, 668 A.2d 659, 667 (Vt. 1995) (“Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well founded knowledge and can do no more than indulge in mere speculation.”) (internal quotation marks [**8] omitted).

The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.

We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

A review of Vermont law suggests that it follows the approach of symmetrical indifference. [HN7] By statute, although assumption of risk has generally been subsumed in comparative [**9] negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently “obvious and necessary” as to be assumed generally forms a jury question under Vermont law. See Estate of Frant v. Haystack Grp., Inc., 162 Vt. 11, 641 A.2d 765, 770-71 (Vt. 1994) (rejecting the conclusion that “by enacting § 1037, the legislature intended to provide more protection from liability for ski areas” and stating that “§ 1037 is broad enough . . . [that s]kiers should be deemed to assume only those skiing risks that the skiing industry is not reasonably required to prevent,” as determined by “a jury [applying] a contemporary sense of what constitutes an obvious or necessary risk”). Vermont’s approach stands in notable contrast both to Connecticut, where participants in sporting events rarely assume the risk of that participation, see, e.g., Jagger v. Mohawk Mt. Ski Area, Inc., 269 Conn. 672, 849 A.2d 813, 827 (2004), and to New York, where assumption of risk is powerfully applied by courts to bar recovery by participants in sporting events, see, e.g., Martin v. New York, 64 A.D.3d 62, 878 N.Y.S.2d 823, 825-26 (App. Div. 3rd Dept. 2009); N.Y. Gen. Obl. Law § 18-106. This contrast reinforces [*51] our conclusion that Vermont [**10] wants us to treat errors in this area pretty much symmetrically.

Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

III. CONCLUSION

The judgment of the District Court is, therefore, AFFIRMED.


Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Release lacked one clause and consequently, failed to protect the defendant sending the case to trial.

Weinrich v. Lehigh Valley Grand Prix Inc, 2015 Pa. Dist. & Cnty. Dec. LEXIS 79

State: Pennsylvania: Common Pleas Court of Lehigh County, Pennsylvania, Civil Division

Plaintiff: Nicholas Weinrich

Defendant: Lehigh Valley Grand Prix Inc, incorrectly Identified As Lehigh Valley Grand Prix LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release & Premises Liability

Holding: For the Plaintiff

Year: 2015

This is an interesting case. The activity is outside the normal area of the law covered by this site; however, the legal issues are very important to everyone reading these posts.

The plaintiff was injured driving a go-kart around the defendant’s go-kart track. This was the second time the plaintiff had been at the go-kart track; the first time was about six months prior.

While driving around the track a piece of plastic from the guard rail was sticking into the track. The plaintiff drove past it and it hit is leg giving him a two-inch laceration.

The plaintiff had signed a release the first time he attended the go-kart track which was six months prior to the date of his injury. He did not sign one the second time when he was injured. The defendant stated that people who have already signed a release are not asked to sign one again.

The defendant filed a motion for summary judgment based on the release the Pennsylvania Premises Liability Act. The act stated that a defendant’s business did not owe a duty to the business invitee for open and obvious hazards.

Analysis: making sense of the law based on these facts.

First, the court reviewed the requirements for a release to be valid in Pennsylvania.

First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly; each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

The next issue was whether a release for recreational issues violates public policy in Pennsylvania. Again, releases for recreational activities do not violate Pennsylvania public policy concerns. Participants are free to go to any recreational facility or none at all.

In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Such releases do not contravene public policy. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances.

The court then got into the real issue. The plaintiff argued the release was not valid because he had signed the release six months prior to the date of his injury. The issue then resolved around when a contract terminates. Normally, a contract terminates based on a date or time frame which is based on language within the contract itself. This release had no language as to how long the release was supposed to last. “The salient issue in evaluating the instant waiver is that the language on the form neither limits the time for its applicability nor specifies the event or occasion to which it applies.”

Generally, time frames are to be determined by the parties to the agreement. If not by the parties, then the language of the release is to be examined for an indication of time. Failing language in the release terminating the agreement, the court can infer from the parties intended performance, which must be within a reasonable amount of time.

Since the release had no language on termination, then the court determined the release terminated within a reasonable amount of time. Since this was not defined, then a term, phrase or clause was missing from the release.

If an essential term is left out of a contract, the court can infer the term. (An essential term is always the one that the issue resolves around in court.)

In this case, the release Plaintiff executed is silent as to duration. Based on the foregoing case law, the Court determines that this is an essential term which is left out of the agreement. Therefore, a reasonable term is to be imposed instead of invalidating the release as a whole. Id. Because contract principles further dictate that contractual duration is presumed to be for a reasonable amount of time in the absence of a specified time for performance, the parties’ release must therefore be deemed to apply for a reasonable period of time.

However, since the reasonable period of time is not set forth by the industry, parties, the release or the law, that time period must be determined by the factfinder. The fact finder when a case has been set for a jury trial is the jury. “What constitutes a reasonable time, however, is generally a question of fact to be resolved by the factfinder.”

Consequently, Defendant’s argument in support of summary judgment based on the existence of a release must be denied. Summary judgment is only appropriate where there is no genuine issue of material fact. Whether six months following the execution of a release for a recreational activity constitutes a reasonable amount of time is a question more appropriately posed to a finder of fact. The reasonableness of the duration in question is therefore, a genuine issue of material fact and summary judgment is inappropriate.

The simple phrase stating the release is valid for a year or more sent this case back to the jury for trial.

The other issue argued by the defendant was the definition of a business invitee which as defined did not create liability on the part of the defendant. A landowner does not owe a duty for open and obvious conditions on the land. In this case, the open and obvious condition would be the piece of plastic sticking out into the track.

As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness.

The issue of open and obvious then was reviewed as it is defined in Pennsylvania.

A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” “For a danger to be ‘known,’ it must not only be known to exist, but … also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.”

Generally in Pennsylvania, a landowner has no duty to protect business invitees from open and obvious dangers. “In the context of amusement facilities, Pennsylvania courts have held that there is no duty to protect participants against the typical risks attendant to those activities.”

However, here again whether something is open and obvious in this case, a plastic part peeling off a guard rail is something that must be determined by the factfinder.

Nonetheless, the question of whether conditions on land were, in fact, open and obvious is generally a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion.

Because in both cases, the release and the definition of the law required completion by the fact finder, the case was sent back for trial.

Summary judgment would not be appropriate on these grounds because there are factual issues regarding constructive notice and whether there were appropriate steps undertaken by Defendant. Testimony before a factfinder is necessary to assess whether and to what extent the employees were aware in advance of the existence of the dangerous condition. These are all factual questions to be resolved by a factfinder.

So Now What?

Here again, the release failed either because of a lazy program, an ineffective system or with both those failing a release that is missing components.

Either every time someone comes to your facility, event or business, they sign a release, or you have a system that tracks when people have signed the release and not and a release that covers that period of time.

At a minimum, you should have someone sign your release yearly. Season’s change, activities change and you might change your business, program, activities, anything and everything. That change may need to be placed in your release and at least follows up on.

This change in your program or start of the new year or season is the perfect opportunity to have an attorney review your release. Inform your attorney of any changes in your operation. Have your release checked to make sure it will do the job you and your insurance company expect it to do.

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#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, Release, Open and Obvious, Time, Business Invitee, Go Kart, Go Kart Racing, Contract, Missing Term, Missing Phrase, FactFinder,

 


Cycling is Evolving Fast, Stay Up: Lennard Zinn’s New Road Bike Maintenance Book Covers New and Old Tech for All the Bikes You Ride

Lennard Zinn’s New Road Bike Maintenance Book Covers New and Old Tech for All the Bikes You Ride

Lennard Zinn, the world’s leading expert on bicycle maintenance and repair, has released the new fifth edition of his best-selling guide Zinn & the Art of Road Bike Maintenance. Offering simple step-by-step instructions to vintage components as well as the newest shifting, braking, cyclocross, forks, and bottom bracket systems, Zinn’s fifth edition is the most complete resource for DIY bike service. The book is now available in bookstores, bike shops, and online. Preview the book and the expanded table of contents at http://www.velopress.com/zinn.

Zinn & the Art of Road Bike Maintenance is the world’s best-selling guide to bicycle repair and maintenance. From basic repairs like how to fix a flat tire to advanced overhauls of drivetrains and brakes, Lennard Zinn’s clearly illustrated guide makes every bicycle repair and maintenance job easy for everyone.

Zinn’s friendly step-by-step guide explains the tools you’ll need and how to know you’ve done the job right. The book’s two-color interior is easy to read-even in a dimly-lit garage or workshop. Hundreds of hand-drawn illustrations and exploded parts diagrams show just the right level of detail to lead you through every bicycle repair task.

What’s New in Zinn & the Art of Road Bike Maintenance, 5th Ed.:

* New tech covered in depth: through-axle forks, SRAM eTap wireless shifting, second generation Shimano and Campagnolo electronic shifting, direct-mount sidepull brakes, SRAM X-Sync 1×11 cyclocross systems, tubular tire gluing tapes.
* New chapter on electronic shifting covers maintenance, service, repair, and troubleshooting of all Shimano, SRAM, and Campagnolo electronic shifting groups.
* New chapter on disc brakes covers maintenance, service, and repair of all hydraulic and mechanical systems.
* New troubleshooting charts
* New master guide to press-fit bottom brackets
* Also covered in the 5th edition: All derailleur shifting systems (5-speed through 11-speed); all bottom bracket systems (cone-and-cup through press-fit); all brake systems (including caliper, V-brake, cantilever, and disc); all headset, stem, handlebar and fork systems; wheelbuilding for all bikes including cyclocross and disc-brake wheels; special sections on cyclocross throughout including troubleshooting, maintenance, service, repair, and equipment selection; updated and expanded torque tables; complete illustration index and complete subject index.

Zinn & the Art of Road Bike Maintenance: The World’s Best-Selling Bicycle Repair and Maintenance Guide, 5th Ed.
Lennard Zinn | Paperback. Two-color interior with tables and over 700 illustrations throughout.
8 1/2″ x 11″, 488 pp., $26.95, 9781937715373

Lennard Zinn is the world’s leading expert on bike maintenance and repair. He is a world-renowned bicycle technician, frame builder, and tech writer for VELO magazine and VeloNews.com. Zinn was a member of the U.S. national racing team and has been riding and fixing bikes for nearly 50 years. A professional frame builder for his business Zinn Cycles, Lennard hosts the popular bike tech Q&A column on VeloNews.com. His best-selling bike maintenance and repair books include Zinn & the Art of Road Bike Maintenance, Zinn & the Art of Triathlon Bikes, Zinn’s Cycling Primer, The Mountain Bike Performance Handbook, and The Mountain Bike Owner’s Manual.


Amgen Tour of California Route Released 800 mile ride starting May 15, 2016

2016 AMGEN TOUR OF CALIFORNIA ROUTE ANNOUNCED,

ONE OF THE LONGEST AND MOST CHALLENGING IN RACE HISTORY

Millions Expected to Line Nearly 800 Scenic Miles to Cheer on

Premier Men and Women Cyclists in Eleventh Annual Event

LOS ANGELES, Calif. (Jan. 28, 2016) – The 2016 Amgen Tour of California route was released today, revealing a scenic but challenging course across nearly 800 miles of California’s most beautiful terrain where the world’s most accomplished cyclists will compete for the overall title May 15-22, 2016. Presented by Visit California, the route announcement included a route video with details of each of the eight stages, viewable at www.amgentourofcalifornia.com/stages.

Beginning May 19, an international field of lauded women cyclists will compete for four days with similar stage starts and finishes to the men’s course, doubling the racing excitement for many of this year’s host cities. The Amgen Tour of California Women’s Race empowered with SRAM is the first North American stage race of the inaugural UCI Women’s WorldTour and features the first Team Time Trial in race history.

For only the second time in Amgen Tour of California history, the race will progress south to north, beginning in San Diego and traveling through 10 additional host cities (four new this year) before a new champion is crowned in the state capital of Sacramento. The peloton will endure nearly 65,000 feet of climbing, including the race’s first ascent up the infamous Gibraltar Road in Santa Barbara County.

“We have an epic route in store for the 11th annual Amgen Tour of California,” said Kristin Klein, president of the Amgen Tour of California and executive vice president of AEG Sports. “Competitors and fans are in for thrills – in particular, one of the longest routes ever with lots of climbing, our second time riding south to north across the state, four new host cities, our first team time trial (women), and a can’t-miss race finish with the first-ever Gibraltar Road climb during the Queen Stage. The level of competition will highlight why the Amgen Tour of California is America’s Greatest Race and also one of the international season’s most challenging.”

Cyclists of all levels will have the chance to join public preview rides of several Amgen Tour of California stages, including the sixth annual L’Etape California on April 24 from Thousand Oaks to Santa Barbara County, and other free community rides with new race ambassador and four-time National Champion Freddie Rodriguez in Folsom (today), Monterey County (Feb. 3) Santa Rosa (March 19) and San Diego (April 30). More information on Amgen Tour of California public rides is available at amgentourofcalifornia.com.

Once again, local organizing committees are filling thousands of volunteer positions for various duties along the course. Volunteer registration is now open at amgentourofcalifornia.com.

2016 AMGEN TOUR OF CALIFORNIA ROUTE ANNOUNCEMENT PRESENTED BY VISIT CALIFORNIA

MEN’S ROUTE

STAGE 1 PRESENTED BY AMGEN SHIFTING GEARS FOR HEART HEALTH

SUNDAY, MAY 15

San Diego

106 miles / 170.5 kilometers

Expected Outcome: Group sprint finish

The first day of racing will begin and end in first-time host city San Diego, the birthplace of California and the state’s second largest city. A natural fit for the nation’s premier cycling race, San Diego features a vibrant beach-oriented community whose residents are passionate about living a healthy lifestyle.

The peloton will depart Mission Bay traveling through Balboa Park before heading south toward downtown and the harbor with views of the historic Gaslamp District and Coronado Bridge.

The race’s first Visit California Sprint will take place in bike-friendly Imperial Beach before heading east toward the rolling hills of East County. With only one Lexus King of the Mountain point on Honey Springs Road, fans can expect a fast finish as the riders race west back to the coast.

STAGE 2

MONDAY, MAY 16

South Pasadena to Santa Clarita

92 miles / 148 kilometers

Expected Outcome: Group sprint finish

Stage 2 will begin in new host city South Pasadena, known for its historic homes, charming tree-lined streets and proximity to Rose Bowl Stadium.

Despite being a sprinter’s finish, the profile on the way to Santa Clarita is filled with long gradual climbs that could take a toll on the sprinters’ legs. Riders will face several Lexus King of the Mountain points in the Angeles National Forest including Highway 2, Big Tujunga and Little Tujunga Canyon. Throughout the route, riders will see numerous historic California bridges and tunnels.

Santa Clarita, host to the most stages in race history (12), will welcome the riders for a wide, flat finish in downtown Newhall.

STAGE 3 PRESENTED BY AMGEN BREAKAWAY FROM CANCER®

TUESDAY, MAY 17

Thousand Oaks to Santa Barbara County (Gibraltar Road)

104.1 miles / 167.5 kilometers

Expected Outcome: Select group of 2-4 riders

Stage 3 has been 11 years in the making and is the day every general classification rider will have circled on their calendar. The challenging Queen Stage will begin in Thousand Oaks, home to biotechnology company Amgen, the race’s title sponsor since its inception. This area is a popular training ground for professional and weekend cyclists alike. Riders will leave Thousand Oaks and quickly descend to the cool breeze of the Pacific Coast Highway.

After traversing the flat strawberry fields of Oxnard and Ventura, the peloton will roll through the undulating terrain of Lake Casitas, Carpinteria and Montecito.

With approximately 6 miles to go, the profile will turn upward on Gibraltar Road, a beautiful twisting mountain road with an 8% average grade. Fans and teams have long requested a finish here, and road conditions have finally made it possible this year. With each turn toward what is sure to be an epic finish, the peloton will experience magnificent views of Santa Barbara and the beach below.

Fans have the opportunity to ride this course at the sixth annual L’Etape California on April 24, three weeks before the race. Once again, Amgen Tour of California Ambassador Jens Voigt will lead the ride along with new ambassador and four-time National Champion Freddie Rodriguez. Registration is open now at amgentourofcalifornia.com/letapecalifornia-register.

STAGE 4 PRESENTED BY VISIT CALIFORNIA

WEDNESDAY, MAY 18

Morro Bay to Monterey County at Mazda Laguna Seca Raceway

133.6 miles / 215 kilometers

Expected outcome: Select group finish

Stage 4 will feature several race “firsts” including the inaugural journey north up Pacific Coast Highway from new waterfront host city Morro Bay, which will showcase its natural beauty to the world.

Riders will roll out from the iconic Morro Rock and head north along California’s most famous coastline, passing windswept beaches and a dynamic estuary. For the next 100 miles, there are no turns as riders head north through coastal Cambria, over Big Sur’s famous Bixby Bridge and through Carmel-By-The-Sea en route to Monterey County.

The road to the marine-life oriented region of Monterey will be long with possible headwinds but also boundless beauty. Monterey was originally a fishing village, and today is one of the most visited areas in California and home to the world-famous Pebble Beach and Monterey Bay Aquarium.

With several short, steep climbs in the final five miles, this course could favor riders with quick bursts of power like last year’s race champion Peter Sagan (SVK). After 133 miles, expect a select group at the front to take a lap on the first racecourse finish in race history – the famously technical Mazda Raceway Laguna Seca, a venue known worldwide for motorsports competitions.

STAGE 5 PRESENTED BY VISIT CALIFORNIA

THURSDAY, MAY 19

Lodi to South Lake Tahoe

132.4 miles / 213 kilometers

Expected Outcome: Select group finish

Stage 5 will usher riders from the beautiful vineyards of Lodi to a long gradual ascent to an uphill finish in South Lake Tahoe, reaching a peak elevation of 8,600 feet – the highest in race history. The ride, essentially a 130-mile climb that gains in elevation from 50 feet to 6,650 at the finish, will showcase California’s diversity, from the rich soil of the Central Valley to the mighty peaks of the Sierra Nevada Mountains.

This stage will be similar to Big Bear Lake stages of years past with plenty of climbing over the long route through national forest and wilderness areas. Upon reaching South Lake Tahoe, a short steep climb up Ski Run Boulevard will deliver the cyclists to the finish at Heavenly Mountain Resort.

STAGE 6

FRIDAY, MAY 20

Folsom Time Trial

12.6 miles / 20.3 kilometers

Expected Outcome: Wide roads and non-technical, rolling course favors pure time trialists

In 2014, time trial specialists Bradley Wiggins, Rohan Dennis, and Taylor Phinney took podium honors. In 2016, the 12.6-mile out and back course returns to Historic Downtown Folsom.

In a town made famous by musician Johnny Cash, cycling now takes center stage, with the course passing beneath the recently constructed Johnny Cash Bike Trail Bridge. Folsom residents enjoy a healthy lifestyle and will be lining up to see the next time trial winner show off their best race against the clock.

STAGE 7 PRESENTED BY LEXUS

SATURDAY, MAY 21

Santa Rosa

109 miles / 175.4 kilometers

Expected Outcome: Select group finish

Stage 7 will begin and end in longtime host city Santa Rosa in the heart of Sonoma County wine county, one of the many fantastic viticulture hot beds the race will pass through this year. It will cover some of the same territory as the popular annual Levi’s GranFondo event.

The course will be rolling throughout with four Lexus King of the Mountain points along King Ridge Road, Pacific Coast Highway and Coleman Valley Road. These country roads through redwoods, coastline and forests will keep the peloton attentive with the feeling of riding on the edge of a continent.

With a crucial time trial the day prior, this penultimate stage in the general classification competition will most likely feature aggressive racing and a small group vying on the downtown circuits of the flat finish.

STAGE 8 PRESENTED BY LEXUS

SUNDAY, MAY 22

Sacramento

93 miles / 149.7 kilometers

Expected Outcome: Group sprint finish

The capital city of California has hosted the Amgen Tour of California Overall Start for the past two years as well as individual stage finishes; 2016 will bring its first Overall Finish. This sports-crazed city is thriving with a new stadium under construction and several national sporting events taking place throughout the year.

The course will travel along the Sacramento River and cross Tower Bridge twice before returning downtown where fans will anxiously wait along the traditional finish circuits around the Capitol building.

Last year was the closest men’s race finish ever with general classification champion Peter Sagan winning by a mere 3 seconds after earning an intermediate sprint time bonus and bonus seconds on the final stage sprint. What excitement will this year’s final race day hold?

2016 AMGEN TOUR OF CALIFORNIA ROUTE ANNOUNCEMENT PRESENTED BY VISIT CALIFORNIA

WOMEN’S ROUTE

STAGE 1 PRESENTED BY VISIT CALIFORNIA

THURSDAY, MAY 19

South Lake Tahoe

72.7 miles / 117 kilometers, 4,700-foot gain (at an altitude of 6,500 feet)

Expected Outcome: Select group finish

Stage 1 of the Amgen Tour of California Women’s Race empowered with SRAM will complete a full clockwise 72-mile loop of Lake Tahoe, just like the first stage in 2015.

The high-altitude route will feature an early Queen of the Mountain climb at Emerald Bay on the West Shore before reaching North Lake Tahoe and the communities of Kings Beach and Incline Village. As the race traverses the hilly yet beautiful East Shore, teams will begin working to set up \ general classification contenders for the short but steep uphill finish to Heavenly Mountain Resort – a 1-mile climb at an approximately 7% average gradient.

Lake Tahoe is known for its natural wildlife and outdoor enthusiasts, so fans will likely be watching from boats, paddle boards and bikes throughout the loop.

STAGE 2

FRIDAY, MAY 20

Folsom Team Time Trial

12.6 miles / 20.3 kilometers

Expected Outcome: Wide roads and non-technical, rolling course will create opportunities for strong teams

Stage 2 of the Women’s UCI WorldTour race will be a critical team time trial, a first for the Amgen Tour of California. The teams will race on the same time trial course as the men, out and back from Historic Downtown Folsom.

STAGE 3 PRESENTED BY LEXUS

SATURDAY, MAY 21

Santa Rosa

64 miles / 111 kilometers

Expected Outcome: Select group finish

Stage 3 of the Women’s Race empowered with SRAM will feature another long road course loop, similar to the first stage of the race around Lake Tahoe. At a race distance of 64 miles over rolling and twisting terrain, expect aggressive riding before the race returns to downtown Santa Rosa for three circuits. Santa Rosa is in for double the racing excitement, hosting the start and finish for the women and men on this day.

The first and last third of the course will feature the same roads as the men’s route with a single Queen of the Mountain climb on Coleman Valley Road.

STAGE 4 PRESENTED BY LEXUS

SUNDAY, MAY 22

Sacramento

41 miles / 66 kilometers (20 laps)

Expected Outcome: Group sprint finish

The overall champion will be decided after 20 laps of a downtown Sacramento circuit on wide, fast roads. Fans can expect shakeups until the very end — last year, Sacramento saw a thrilling women’s finish when Trixi Worrack’s (GER) general classification win came down to sprint time bonuses and the final sprint for the stage.

Preview Video – https://youtu.be/am3iWtJiN8k

Full-Length Video – https://youtu.be/_7PoKUwi7ds


2015-2016 In bound ski/board fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of January 15, 2016. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Red type is natural or medical conditions that occurred inbounds on the slopes

Green Type is Fatalities while sledding at the Resort

Blue Type is a Lift Accidents

2015 – 2016 Ski Season Fatalities

#

Date

State

Resort

Where

Trail Difficulty

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

Ref # 2

1

11/29

CA

Bear Mountain

 

 

she collided with a metal stairway[i]

 

Ski

21

F

Jackson Township, CA

 

http://rec-law.us/1HAkwAp

http://rec-law.us/1LJ13sm

2

12/7

WY

Jackson Hole

Moran Run

Blue

Hit tree

 

Board

23

F

Boston, MA

Y

http://rec-law.us/1OO1M1P

http://rec-law.us/1NGuZLh

3

12/15

CO

Steamboat

 

 

fell, landing face down in the snow

 

Ski

70

M

Louisville, CO

 

http://rec-law.us/1TPTaHk

http://rec-law.us/1YksmR0

4

12/19

WA

Snoqualmie Pass

Silver Fir

 

tree-well

 

Ski

50

M

North Bend, WA

 

http://rec-law.us/1ZDDJG7

http://rec-law.us/1ms5yCF

5

12/22

WY

Jackson Hole

Sundance run

 

found inverted in a tree well

 

Ski

25

F

Jackson Hole, WY

Y

http://rec-law.us/1kwuRlK

http://rec-law.us/1mlDKjR

6

12/23

NY

Whiteface Lake Placid

Summit Express

Blue

fell and struck his head

blunt impact to the head

Board

26

M

Litiz, PA

N

http://rec-law.us/1P2BrJ2

 

7

12/23

CA

Bear Valley

 

 

 

 

Ski

71

M

 

 

http://rec-law.us/1JMVglS

http://rec-law.us/1OvzGUe

8

1/6

CO

Vail

 

 

 

tree well

Board

25

M

Avon, CO

 

http://rec-law.us/1ZqNv1y

http://rec-law.us/1ZYSDa6

9

1/12

UT

Park City

 

Intermediate

 

 

 

60

M

 

 

http://rec-law.us/1SNa4bx

 

10

1/24

VT

Mount Snow

 

 

 

 

Board

56

M

Simsbury, CT

 

http://rec-law.us/20r061U

http://rec-law.us/20r061U

 

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.

You can download a PDF of this chart here: 2015 – 2016 Ski Season Deaths 1.15.16.

What do you think? Leave a comment.

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

Download a PDF of this chart here.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.

What do you think? Leave a comment.

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

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Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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