Lots of Changes in Ski Resort Ownership this past month

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What You Ought to Know About Destination Mountain Travel… Sept. 23, 2014

Vail Acquires Park City Mountain Resort, Doubling Utah Ski Options

0915_FL-park-city-utah-ski-resort_2000x1125-1940x1091.jpgThe just announced and immediate $182 million purchase of Utah’s Park City Mountain Resort (PCMR) is a win-win for skiers in Utah and across the nation. The ski resort was mired in controversy and looked likely to be closed and miss the entire 2014-15 ski season after its owners apparently failed to properly renew their lease on the slopes. “We are very pleased to bring a permanent end to this dispute and provide assurance to the guests and employees of PCMR, and to everyone in the Park City community, that they no longer have to worry about any disruption to the operation of the Resort,” said Rob Katz, chairman and chief executive officer of Vail Resorts (NYSE: MTN).

Source: Forbes. Read More…

Intrawest buys half of Canadian ski resort it doesn’t already own

winter-park-skiing-powder*304xx1800-1200-0-0.jpgDenver’s Intrawest Resorts Holdings Inc. will pay $52.5 million for the half of Blue Mountain Ski Resort it doesn’t already own.

Intrawest (NYSE: SNOW), which operates the Winter Park and Steamboat ski resorts in Colorado, has been a partner in Blue Mountain since 1999. The company said Friday it has a definitive agreement in place and expects the purchase to close by the end of this month.

Blue Mountain is the largest ski resort in Ontario and is about 90 miles northwest of Toronto. Intrawest said it doesn’t anticipate making significant changes to the resort or to its staff.

Source: Denver Business Journal. Read More…

Cumming family acquires majority interest in Snowbird

Snowbird TramThe Cumming family, owner of Park City Mountain Resort parent Powdr Corp., has purchased a majority interest in Snowbird Ski and Summer Resort, the Little Cottonwood Canyon resort said on Monday.

The deal is between the Cumming family and the Bass family. Dick Bass was a co-founder of Snowbird in the 1970s and the family has owned the resort outright since the early part of that decade. Powdr Corp., the Cumming family-controlled firm that owns PCMR and other mountain resorts across the U.S., was not involved in the deal.

Source: Park Record. Read More…

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Arbitration clause in a release is upheld in Mississippi, but only because it was “fair”

Larger issue is should you use arbitration and if you should, when?

Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037

State:

Plaintiff: Mississippi, United States Court of Appeals for the Fifth Circuit

Defendant: Virginia College L.L.C.; Education Corporation of America; Willis-Stein and Partners

Plaintiff Claims: negligence, conversion, embezzlement, and unjust enrichment

Defendant Defenses: Mandatory arbitration as found in the release which was part of the enrolment agreement

Holding: for the defendant

Year: 2012

The facts of this case are unknown. What is known is the plaintiff enrolled in the defendant college. To enroll she had to sign an Enrollment and Tuition Agreement. The Enrollment and Tuition Agreement (Enrollment form) had a mandatory arbitration clause.

Arbitration is a cross between mediation and a trial. Arbitration is usually done by a member of the American Arbitration Association or by a neutral party picked by both sides. Arbitration is a lot cheaper and faster than going to trial. In many states, an arbitrator cannot award all the types of damages that a jury or judge could. Arbitrators rarely award as much money in damages as a jury does.

Arbitration is supported by state law, which limits damages, compels arbitration and encourages and forces parties to an arbitration clause to arbitrate.

In this case, the plaintiff objected the required arbitration required in the contract. That arbitration was required by the trial court, and the plaintiff appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth circuit court upheld the mandatory arbitration.

Summary of the case

The discussion in this case is fairly simple. The plaintiff was unhappy about how the defendant school had retained portions of the federal financial aid she had received. She sued claiming the arbitration clause was void because it was unconscionable.

Under Mississippi law unconscionability:

…is proven by oppressive contract terms such that there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.

The plaintiff argued that the enrollment agreement was unconscionable because it limited damages, had a jurisdiction and venue clause and awarded the defendant attorney fees if it won its case. To overcome some of the issues, the defendant in its written argument to the appellate court considered the attorney fee’s clause stating the clause allowed any winning party to recover its attorney fees.

Consequently, the arbitration clause was not found to be unconscionable in this situation applying Mississippi law.

So Now What?

The real issue to look at in this case is, should you use arbitration if you run an outdoor recreation business or program and if so when.

Probably, if you are an outdoor recreation activity in a state that supports the use of a release, and you have a well-written release, then no, do not require arbitration. The reason is simple; arbitration does not allow motions for summary judgment, which is a quick and final ending to the litigation.

Arbitration will allow the parties to go to arbitration and allow the plaintiff to have their day in court. Usually, a motion for summary judgment is faster, simpler and cheaper.

The only places I would consider arbitration in an outdoor recreation business setting would be those states that do not allow the use of a release, if those states support mandatory arbitration. At the time of the writing of this article, those states are: Louisiana, Montana, and Virginia (although Virginia attorneys continuously tell me lower courts uphold releases?).

Possibly Alaska, Hawaii, New York, Arizona, New Mexico, and West Virginia for some activities were the state legislature or the courts have held that releases are not valid for those activities. However, in all of those states, you must investigate the statute and make sure arbitration works the way you need as well as limits the damages that can be awarded by an arbitrator.

See States that do not Support the Use of a Release

Arbitration is not a cover up for having a bad release. If your release is bad, an arbitration clause is not going to provide any greater protection. Besides if you have a bad release, you probably have a bad arbitration clause also.

Of note, is the court looked at the over-all fairness of the agreement and the arbitration clause. Without a finding of fundamental fairness, the court might have voided the arbitration clause. In  

For an article on failed arbitration see: Complicated serious of cases created to defend against a mountaineering death.

What do you think? Leave a comment.

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

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

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

#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, Virginia College L.L.C., Education Corporation of America, Willis-Stein and Partners, Arbitration, Arbitration Clause, release, Enrollment Agreement, Tuition Agreement, Tuition, Enrollment, Mississippi,

 


Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037

Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037

Natifracuria, Plaintiff-Appellant, Virginia College L.L.C.; Education Corporation of America; Willis-Stein and Partners, Defendants-Appellees,

No. 11-60861 Summary Calendar

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 26, 2012, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the Southern District of Mississippi. USDC No. 3:11-CV-496.

DISPOSITION: The district court’s judgment is AFFIRMED.

COUNSEL: For NATIFRACURIA DANIELS, Plaintiff – Appellant: Precious Tyrone Martin, Sr., Esq., Precious Martin, Sr. & Associates, P.L.L.C., Jackson, MS.

For VIRGINIA COLLEGE, L.L.C., EDUCATION CORPORATION OF AMERICA, Defendants – Appellees: Ollie Ancil Cleveland, III, Esq., Peter Sean Fruin, Attorney, Maynard, Cooper & Gale, P.C. Birmingham, AL.

For WILLIS-STEIN AND PARTNERS, Defendant – Appellee: Robert Lewis Gibbs, Esq., Gibbs Whitwell, P.L.L.C., Jackson, MS.

JUDGES: Before REAVLEY, SMITH, and PRADO, Circuit Judges.

OPINION

[*893] PER CURIAM:*

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Plaintiff-Appellant Natifracuria Daniels appeals the district court’s order compelling arbitration of her state-law tort and restitution claims against Defendants-Appellees Virginia College at Jackson, Virginia College, L.L.C., Education Corporation of America, and Willis-Stein and Partners (collectively “Virginia College”). Virginia College moved [**2] to compel arbitration in order to enforce an arbitration clause in the “Enrollment and Tuition Agreement,” which Daniels signed before enrolling as a student at Defendant Virginia College at Jackson (individually, “the College”). On appeal, Daniels contends that the Agreement’s arbitration clause does not cover her tort claims, and she contends that the arbitration clause is unconscionable.

We AFFIRM.

The Enrollment Agreement’s arbitration clause requires arbitration of any claim “arising out of or relating to [the Agreement], together will all other claims . . . of any nature whatsoever arising out of or in relation to [Daniels's] enrollment and participation in courses at the College . . . .” Daniels alleges that the College unlawfully retained the portion of her federal financial aid monies that should have been disbursed to Daniels to cover her cost of living. She brings state-law claims sounding in negligence, conversion, embezzlement, and unjust enrichment. Because these claims arose “in relation to [Daniels's] enrollment and participation in courses at the College,” the district court was correct in finding them subject to the arbitration clause.

[HN1] Under Mississippi law,1 substantive [**3] unconscionability “is proven by oppressive contract terms such that there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.” Covenant Health and Rehab. of Picayune, LP v. Estate of Moulds, 14 So. 3d 695, 699-700 (Miss. 2009) (internal citation and quotation marks omitted). In Covenant Health, the Mississippi Supreme Court found that a contract containing an arbitration clause “coupled with a multitude of unconscionable provisions,” including asymmetrical limitations on liability, choice of forum, and other matters, was unenforceable in its entirety. Id. at 703. Daniels argues that the Enrollment Agreement is similarly laden with unconscionable provisions.

1 The Enrollment Agreement has an Alabama choice-of-law provision. But no party raises this provision, and they have relied on Mississippi law throughout their briefing on appeal and before the district court.

First, there is language in the arbitration clause that allows the College, but not Daniels, to seek injunctive relief in court. [HN2] An agreement that requires only one party to submit its claims to arbitration is unconscionable [**4] under Mississippi law,2 but the language at issue here merely allows the College to seek a preliminary injunction to halt a student’s ongoing breach of the Enrollment Agreement. The College must seek all other relief though arbitration. An asymmetric exception so limited in scope does not make an arbitration clause unconscionable. Sawyers v. Herrin-Gear Chev. Co., 26 So. 3d 1026, 1035 (Miss. 2010) (arbitration clause between car dealer and purchaser enforceable notwithstanding exception allowing car dealer to bring an action to repossess the car in court).

2 Covenant Health, 14 So. 3d at 700 (citing Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 658 (S.D. Miss. 2000)).

[*894] Daniels also points to the arbitration clause’s language prohibiting the arbitrator from awarding any damages not “measured by the prevailing party’s actual compensatory damages.” [HN3] Ostensibly bilateral limitations on punitive damages are unconscionable under Mississippi law if they are one-sided in practical effect due to the weaker party’s being “much more likely to be justified in seeking punitive damages.” Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 523-24 (Miss 2005) (ostensibly bilateral punitive-damages [**5] limitation in contract of adhesion between nursing home and occupant unenforceable against occupant), overruled on other grounds by Covenant Health, 14 So. 3d at 706 (Miss. 2009). However, as Virginia College concedes in its brief, the arbitration clause does not bar the arbitrator from awarding damages in excess of compensatory damages. It merely requires that the amount of such damages be based on the prevailing party’s compensatory damages. Sawyers, 26 So. 3d at 1036 (interpreting nearly identical language as requiring only that the parties be “limited as to the amount of punitive damages which might be awarded, since such an award would have to be ‘measured by the prevailing party’s actual damages'”). Such provisions are not unconscionable. Id.

Daniels next points to the Enrollment Agreement’s asymmetric liquidated damages provision, which she contends would leave her without any remedy for the wrongs she alleges because its language limits her recovery to “an amount equal to any non-refunded tuition payments . . . .” [HN4] Contractual provisions intended to exculpate a party of liability for its own tortious conduct are particularly suspect under Mississippi law. See Turnbough v. Ladner, 754 So.2d 467, 469 (Miss. 1999)). [**6] As Virginia College concedes, however, the liquidated damages provision in the Enrollment Agreement applies only to breach-of-contract damages, and would not affect recovery for Daniels’s claims.

Finally, a provision of the agreement permits the college to recover attorney’s fees against Daniels if it prevails in any action or arbitration that is “permitted” by the Enrollment Agreement or that “aris[es] out of [the Agreement] and the subject matter contained [there]in.” However, while the Enrollment Agreement is silent with respect to Daniels’s recovering fees if she prevails, Virginia College disavows any interpretation of it that would preclude Daniels from recovering attorneys’ fees to which she might otherwise be entitled under the arbitration rules. Given Virginia College’s concessions regarding the meaning of its provisions, enforcing the Enrollment Agreement’s arbitration clause is not unconscionable under Mississippi law.

The district court’s judgment is AFFIRMED.


Project Learning Tree has a new program: Grandparents as Environmental Educators

Project Learning Tree is piloting a new program: Grandparents as Environmental Educators!

We 10 grandparents to try this and provide feedback! If you have preschool-aged grandchildren, would like to receive a free Environmental Experiences for Early Childhood activity guide and music cd, AND earn a $25 stipend, then call us by 3:00 PM tomorrow-Wednesday! Be a member of our focus group and help us create something new!

Read the announcement below, then call 303-877-7585 immediately. Be one of the first 10 to call to receive the $25 stipend.

Did you play outside when young, not coming in until the dinner? Are you looking for inexpensive, entertaining and educational ways to engage and excite your young grandchildren outdoors without spending money on admission fees all the time? Have you read the very popular book, “Last Child in the Woods: Saving your child from Nature Deficit Disorder”? Do you lament that today’s children and their parents are often times more interested in “screens” –smart phones, video games, tablets, and other electronic toys and distractions?

Celebrate Grandparents’ Month with this workshop designed just for you! You’ll learn simple and fun ideas that will help you and your grandchildren connect with nature while they learn about counting, sorting, matching, colors, sounds, seasons, trees, vocabulary and more.

This hands-on workshop will cover various developmentally appropriate and thematic activities including snacks, literature, crafts, music, and inexpensive, natural materials for exploring and investigating. Take home the easy-to-use activity guide book and music CD filled with great ideas on how to engage three to six year-olds in outdoor exploration and play while helping them gain skills and vocabulary (30,000 words! Really!) to be ready for success in kindergarten and beyond-all in the convenience of your backyard or neighborhood park.

Thanks so much for your help! Share this with other grandparents! There are two workshops this weekend-on at Lookout Mt. Nature Center Saturday from 10-1, and one in Woodland Park, Sunday from 1-4. Go to www.coloradoplt.org for more information!


2015 Advancing Environmental Education Conference

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2015 Advancing Environmental Education Conference

Explore Research, Elevate Practice, Spark Collaborations

Friday, March 27-Saturday, March 28, 2015

Auraria Campus-Denver

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Submit a Session ProposalDue October 27, 2014
Help the Colorado Alliance for Environmental Education (CAEE) explore, elevate and spark environmental education by presenting at the 15th annual Colorado’s Advancing Environmental Education Conference (also known as Teaching Outside the Box).The conference will offer a variety of session topics, inspiring speakers, and many opportunities for networking and discovering new ideas, tools and techniques. This year also features new session formats, tracks and strands.

Overall Information about the Conference Event

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79.jpgCAEE is seeking session proposals that highlight environmental education (EE) approaches from a variety of backgrounds, sectors and focus areas, and in particular the connections between EE research, practices and collaborations that offer tangible takeaways for participants.CAEE is excited to be partnering with…

Three Auraria Campus departments for the conference: University of Colorado,Denver-Department of Geography and Environmental Science and Metro State University of Denver Centers:

Equity Assistance Center and One World, One Water Center. We are also specifically looking for sessions related to the focus of these departments and applicable to higher education students, professors, administrators.

Information on Submitting a Session Proposal

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Other Conference Announcements
Awards for Excellence in EE
The Awards Banquet will be held in conjunction with the conference on Friday, March 27, 2015. We received a record 28 program nominations and are excited to recognize the 2014 award recipients!Click here for more information on awards
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Due January 19: Conference Scholarships
Scholarships are available to help cover partial registration costs and is awarded upon completion of approximately 3-5 hours of volunteer time.Click here for more information.
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Become an Event Sponsor & Support EE in Colorado
Be a champion for EE in Colorado by sponsoring the conference/awards with monetary, booklet advertisement, in-kind support or develop a sponsorship specific to your interests.Click here for more information.
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Be Involved with Shaping the ConferenceJoin the Planning Committee
Contribute your ideas and skills at upcoming fall meetings towards the largest environmental education professional development event in Colorado! Learn about great EE programs, event planning & meet new people. Active committee members receive a registration fee discount.Click here to learn more about the committee.
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Other CAEE Announcements

Submit a Proposal by October 27
Click Here
Check Out What’s New This Year!
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Session Tracks
Research, Practices & Collaborations
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Session Strands
*Investigating Environmental Issues

*Connecting People to Nature

*EE in Schools

*Cultivating
Environmental Leaders*Inclusive Environmental Education

*Developing Capacity & Collaborations

Click for example topics.

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Session Formats
*Lightening Presentations*Research Poster Session

*Roundtable Discussions

*Panel Presentation

*Traditional Presentation

*Workshop

*Hands-On

Click for descriptions

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Become a CAEE Member & Receive Event Discounts
Become a CAEE member and save up to $50 on registration fees. Online registration will be available in November.Click here learn more about CAEE membership.
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Other Ways to be Involved with the Conference
Showcase your Organization as a Conference ExhibitorBecome a Conference Promotional Partner
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Stay Connected with CAEELike us on Facebook Follow us on Twitter

CAEE Website

EE Listserve

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Great article about the risks of an organization creating standards for members of the industry – and I did not write it

The article exams the ways that standards can come back and be a liability for the organization that created them.

The Center for Association Leadership is the trade association for non-profit association directors. Its purpose is to provide information and education for non-profit associations, their directors and their boards. Part of that education is articles by attorneys to outline the risk areas of association.

One article was sent to me by one of my trade association clients. It is titled Certification and the Law. The title is a little misleading. The article is really about standards rather than certification. If you read the article you will see the term certification is used interchangeably with standards.

The article talks about the risks of doing so first and discusses the National Spa and Pool Institute litigation in the late 90’s that put the association in bankruptcy. The legal costs alone exceeded the insurance available to pay the claim.

Thankfully, full-scale judicial attacks are relatively rare, but as the cases involving the National Spa and Pool Institute show, such claims can be devastating. NSPI lost a jury trial in 1998 which, inter alia, alleged that NSPI had failed to exercise a duty of using “reasonable care” when it promulgated its swimming pool standards. NSPI’s legal defense costs greatly exceeded its insurance coverage. To avoid being shut down by the jury’s verdict and in order to post a bond for the appeal of the case, NSPI filed for Chapter 11 reorganization.

There are many other legal issues discussed in the article including educational programs etc. but I’ll quote sections concerning creating standards that I think are important.

Antitrust. Certification programs beg antitrust scrutiny, given that the object of standard setting is to bring competitors together to set criteria for, among other things, restricting entry into a field. Antitrust law prohibits anyone from unreasonably creating a barrier to practice in a profession. Therefore, the certification organization must make sure that all of its eligibility requirements are reasonable-that is, relevant to determining the professional’s skill level and not so high as to block the majority of professionals from being eligible to apply for certification.

The article discusses the liability requirements to hold an association liable for its standards.

Third-party reliance. If a customer, patient, or employer is injured by a certified product or professional, it is possible that the certifying organization will be held liable for negligence or negligent misrepresentation. The argument follows that the person relied on the certification as a guarantee of competence; because the certified product or professional did not perform competently, the certification should not have been granted. Thus, it is argued, the standard-setting organization should be liable to the injured person for its mistaken or negligent grant of certification.

In order to find liability, the injured party generally must prove that

    the organization should have known better than to grant certification;

    the organization should have known that its mistake could result in the injury; and

    the injured party was justified in relying on the certification as a guarantee of competence.

There are very few of these types of lawsuits. The article discusses lawsuits that have been filed.

Among those that have arisen, several have held that the organization is not liable in the case of products when it did not manufacture the product that caused the injury and did not exercise control over the manufacturer. Nevertheless, it is clear that liability may be found when certification is negligently granted or maintained. The deciding factor is the degree of control that can be shown that the standard-setting program exercised-or should have exercised-over the product or professional.

As the article points out, lawsuits against trade associations are rare, however, if they do occur, they can be devastating.

See Certification and the Law

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

#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, Certification, Standards, Non-profit, Trade Association, Center for Association Leadership,

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Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.

If you purchase a helmet that only protects part of your head, then you cannot sue for injuries to the part of your head not protected.

Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

State: Georgia, US Court of Appeals for the Eleventh Circuit

Plaintiff: Lois Elaine Wilson

Defendant: Bicycle South, Inc.

Plaintiff Claims: Product Liability (breach of warranty, strict liability, and negligence)

Defendant Defenses: Assumption of the Risk and Open and Obvious

Holding: For the defendants

Year: 1990

This case is fairly easy to understand, even though the opinion is quite complicated. The plaintiff was riding her bike from Florida to California. While traveling through Georgia she crashed suffering head injuries.

She sued claiming the rear wheel of the bike collapsed causing her crash. She claimed her head injuries were caused because the helmet failed to protect her head.

She sued the wheel manufacturer, Opportunities Inc., the bicycle manufacturer, Trek Bicycle Corporation and the retailer Bicycle South, Inc. The three defendants were found not liable at trial.

The jury did find the helmet manufacturer, Skid Lid Manufacturing Company liable for the plaintiff’s head injuries. The majority of the decision reviews the helmet issues. The plaintiff purchased the helmet for her ride. The helmet was a “half helmet” which only covered the top half of her head. The helmet came down to about the top of her ears.

The jury found in favor of the plaintiff on the head injury issue caused by the helmet manufacturer. The defendant Skid Lid moved for a judgment notwithstanding the verdict, (JNOV), which the court granted. The defendant helmet manufacturer appealed the decision.

A JNOV is effectively a motion filed by the losing party and the judge overrules the jury. This is a motion that is rarely granted and only done so to overcome extreme or unreasonable jury verdicts. The judge must find that no reasonable jury could reach the decision that was reached by the jury in the case. Normally this is because there are insufficient facts to support the claims or the jury applied the law incorrectly.

In this case, the JNOV seemed to have been entered because the jury ignored the defenses presented by the defendant.

Summary of the case

Georgia at the time of the decision allowed several defense to product liability claims, two of which were: Assumption of the risk and the “open and obvious” defects. Variations of these defenses are available in some, but not all states. The trial judge in this case granted the JNOV based on the Assumption of the Risk defense. The appellate court looked at both of these defenses.

The open and obvious defense states a plaintiff cannot recover from a defendant when the alleged defect is patent and obvious to the user.

The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. This determination regarding the peril is made on the basis of an objective view of the product. In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like.

This defense is not based on a defect in the product, only that the product will not or will do something that is patent, and open and obvious.

The defense applied here because the plaintiff when purchase the helmet purchased one that only covered part of her head. It was “obvious” that the helmet would not protect the part of her head that the helmet did not cover.

The assumption of risk defense is slightly different, but also applicable in this case. If the consumer knows of a defect in the product, is aware of the danger presented by the defect and proceeds to use the product anyway the plaintiff is barred from recovering. “The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head.”

The assumption of risk defense in Georgia is slightly more difficult to prove because the injured plaintiff must have known about the defect. (However, a defect only becomes one in pleadings after an injury has occurred.) What I mean by this is, as a manufacturer should point out the limitations of the product in the information supplied by the product. This provides the necessary notice to a user of the defect and provides a defense to the manufacturer.

The court also ruled on evidentiary issues in the case which are not important in understanding these issues.

So Now What?

For manufacturers, selling a product means more than just point out the great features of the product. You must warn the consumer of any problems or issues with the product and you must point out what the product cannot do.

That does not mean that you should point out your bicycle won’t get you to the moon. It might mean you should point out that the bicycle should only be ridden on roads if it is a road bike. Videos online show road bikes being ridden everywhere, but that does not mean as a manufacturer you should be liable when someone tries to ride the Monarch Crest Trail on your road bike.

As a retailer, you should point out the differences in products trying to specifically point out short comings about a product. This helmet has a MIPS system in side, this one does not.

Both of these defenses are easy to rely on, however not all states still allow the use of these defenses.

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Copyright 2014 Recreation Law (720) Edit Law

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

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