Internships

Environmental Education Instructors:

1) Spring Season (March 1, 2016 – May 31, 2016): 15 hours/week, college credit potential, additional perks

Our Spring interns work closely with the Program Coordinator to lead Field Trips, After School Garden Club, and Classroom Visits in our Children’s Peace Garden. The right candidate should have a passion for teaching young students about environmental stewardship, nutrition, respect for diversity, plants, creative self-expression, etc. We utilize hands on activities to teach students about organic gardening, the garden as the source of food, how to prepare simple meals, and the ecology of an organic garden. We will train and orient you on the different curriculum’s we have in place to teach the classes as well as effective teaching strategies to engage the students during the lessons. This position is ideal for someone interested in gaining experience as an educator in the Environmental Education field.

For the full description of responsibilities, expectations, perks, etc. please check the website.

2) Summer Season (May 15, 2016 – August 15, 2016): 30 hours/week, $625 stipend at the completion of the internship, additional perks

Our Summer interns work closely with the Program Coordinator to lead Summer Camps and Field Trips for the Children’s Peace Garden during the summer. The ideal candidate will have a minimum of three months previous teaching experience with elementary aged children. This can range from working at summer camps, before/after school programs, coaching, etc. The candidate should have a passion for teaching and working with younger students. We utilize hands on activities to teach students about organic gardening, the garden as the source of food, how to prepare simple meals, and the ecology of an organic garden. Most of the classes and trips take place during the regular week in the mornings and early afternoons.

For the full description of responsibilities, expectations, perks, etc. please check the website.

3) Full Season (March 1, 2016 – October 31, 2016): 40 hours/week, monthly stipend of $800, 1 week paid vacation, additional perks

Our Full Season interns spend the majority of their time leading Field Trips, After School Garden Club, Summer Camps, and Classroom visits for the Children’s Peace Garden. In addition to teaching in the Peace Garden, Full Season interns will be responsible for teaching in the Horticulture Therapy Program twice a month. During the Summer they will assist the Program Coordinator in mentoring the teens participating in the Cultiva Youth Project. Interns help teach teenagers about sustainable agriculture, leadership skills, entrepreneurial and life skills while working alongside the youth in the fields. In addition to this, interns will have the opportunity to learn about vegetable production while they work in the greenhouse and fields approximately two hours per week.

For the full description of responsibilities, expectations, perks, etc. please check the website.

Growing Internships:

Spring Growing Internship: see website

Full Season Growing Internship: see website

You can also view the detailed descriptions that are attached!

To apply:

The official application can be found on our website at francisco

Applications are due by February 1, 2016 although our goal is to have all the positions filled before this date. We will be filling positions as applications come in.

Please direct any questions to Francisco Di Poi

Francisco Di Poi

Program Coordinator

Growing Gardens

Boulder, Colorado

303.443.9952

Cultivating community through sustainable urban agriculture

growinggardens.org

 

Environmental Education Instructor (Full Season) March – Oct 2016.pdf

Environmental Education Instructor (Spring) March – May 2016.pdf

Environmental Education Instructor (Summer) May-Aug 2016.pdf

Greenhouse and Garden Grower March – May 2016.pdf

Orchard and Farm Growing Intern March – Nov 2016.pdf


$250,000 to get kids into Parks! “Every Kid in a Park”

Today, it was announced that Outdoor Foundation and Outdoor Industry Association put $250,000 seed money into an online crowdsourcing funding opportunity. Please check it out and let your education and nonprofit partners know they can go to https://www.crowdrise.com/everykidinapark and upload their project proposal. This is a fantastic opportunity to find funds for transportation.

Good luck!!!

Here are the basics. There is more on the site:

Commitment:
Outdoor Industry Association and Outdoor Foundation and its partners will launch the Centennial Campaign with an initial investment of $250,000 – giving school and nonprofit partners a kick start to their fundraising efforts and challenging the outdoor industry and other sectors to join the campaign. As part of this commitment and to kick off the campaign, the Foundation will award $100 to the first 100 projects that sign up.

How It Works:
1. School and nonprofit partners register and create their campaign profile that describes their project and fundraising need.
2. Working with Outdoor Industry Association and Outdoor Foundation, partners promote their project by sharing a unique URL with potential funders.
3. In preparation for the park visit, partners should go to the ‘Every Kid in a Park’ website https://everykidinapark.gov to learn more about the initiative and download free park passes.
4. Once the fundraising goal is met, the partner is prompted to submit a few verification documents (i.e. w-9 and letter from participating school) to the Outdoor Foundation.
5. The Foundation will release funds within 30 days of receiving the information.
6. Every Kid in a Park becomes a reality!

Criteria:
1. Only schools and nonprofits are eligible.
2. The park experience must engage 4th graders.
3. The park experience must happen on participating federal lands and water in 2016. CLICK HERE to see all of the agencies and locations supporting Every Kid in a Park.
4. All funds should be used for direct park experience expenses.


Summer 2015 Commercial 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 November 30, 2015. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

3/2

Backcountry Skiing

AK

Chugach Mountains

Calving Glacier

28

M

 

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

5/22

Whitewater Rafting

CO

Clear Creek

Raft Flipped

47

F

M258.5

rec-law.us/1I3HWx7

5/31

Whitewater Rafting

MT

Gallatin River

Raft Flipped

43

M

House Rock

rec-law.us/1GhQpwm

6/5

Whitewater Rafting

UT

Colorado River, Westwater

Raft Flipped

50

M

Funnel Falls

rec-law.us/1HduOnS

6/10

Whitewater Rafting

CO

Arkansas River, Brown’s Canyon,

Raft high sided

11

M

Big Drop

rec-law.us/1GwG51X

6/11

Zip Line

NC

Camp Cheerio

 

12

F

 

rec-law.us/1FdpyKX

 

Whitewater Rafting

CO

Arkansas River

 

52

M

Salt Lick

rec-law.us/1KRwN2b

 

Whitewater Rafting

CO

Animas

 

 

M

 

 

6/13

Whitewater Rafting

CO

Roaring Fork River

 

44

F

 

rec-law.us/1OgnuIj

6/22

Hiking on Whitewater Rafting Trip

AZ

Colorado River

Missing after hike

22

M

Pumpkin Springs, Swamper on trip

rec-law.us/1efzCNB

6/23

Wakeboarding

GA

Carters Lake

 

23

M

 

rec-law.us/1e3wdBF

 

Whitewater Rafting

NM

Rio Grande

 

52

M

 

rec-law.us/1LDliwP

7/4

Whitewater Rafting

CO

Clear Creek

 

20

M

 

rec-law.us/1LWmk7l

7/6

Whitewater Rafting

CO

Poudre River

Medical

76

M

 

rec-law.us/1NPBLeT

7/13

Ropes Course

SC

Freebird

 

16

F

 

rec-law.us/1OdEFep

7/14

Zip Line

UT

Zip line

Fell off platform

54

M

Grabbed guest who pulled him off

rec-law.us/1CE8fIS

7/18

Whitewater Rafting

CO

Dizzy Lizzy

Fell out of raft

35

M

 

rec-law.us/1LkODwd

9/25/15

Zip Line

MI

Huron County

Fell from zip line

85

M

 

rec-law.us/1R93WYF

9/27

Cycling Time Trial

CA

Yolo County

Hit by car

57

M

County Road 19, west of Interstate 505 near Esparto

rec-law.us/1L1om4S

If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the 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, Twitter or LinkedIn

Copyright 2015 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

#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, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition, Colorado River, Westwater Canyon, Funnel Falls, Bay Shore Camp

 

 


Zip line accused of being common carrier which makes releases unenforceable. Issue still not decided, however, in all states common carriers cannot use a release as a defense.

Many ropes courses have determined that agreeing to be supervised by the state is the way to go. In Illinois, that supervision would have voided all defenses for a challenge course because they would have been classified as a common carrier. Common carriers’ have extremely limited defenses to claims.

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

State: Illinois, Appellate Court of Illinois, Fifth District

Plaintiff: April Dodge

Defendant: Grafton Zipline Adventures, LLC, and Michael Quinn

Plaintiff Claims: negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor, and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn

Defendant Defenses: Release

Holding: Sent back to the trial court to determine if a zip line under Illinois law is a common carrier

Year: 2015

The facts are pretty normal for zip line lawsuits. The plaintiff while riding was unable to slow down or stop and hit the tree holding the platform. In this case it was the eighth line of multiple zip lines down the mountain.

The defendant filed a motion to dismiss based on a release signed by the plaintiff. The plaintiff argued that the release was barred because the zip line was a common carrier under Illinois law and as such “they cannot exempt themselves from liability for their own negligence.”

The trial court agreed with the plaintiff that a zip line was a common carrier. That analysis was based on the theory that:

…in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-go-rounds or other amusement rides that had been held to be common carriers.

The defendants filed a motion for permissive interlocutory appeal which was denied by the appellate court. However the Illinois Supreme Court directed the appellate court to vacate (reverse) its order denying the appeal.

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

The court first looked at Illinois law on releases, calling them exculpatory clauses.

An exculpatory clause is a contractual provision that excuses the defaulting party’s liability. “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'”

The analysis under Illinois law concerning releases is pretty standard. Although “disfavored” they are upheld.

Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.

Releases under Illinois law however are unenforceable when applied to common carriers as releases for common carriers create a violation of public policy.

Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy.

The unenforceability of a release between a passenger and a common carrier is due to the relationship between the two.

Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties.

Arguments given for this are based on the fact the passenger pays for transportation from one location to another and during that transportation the passenger is totally at the control of the common carrier. The passenger cannot drive, inspect the track, road or path of travel, work on the engines or anything of that manner. The only thing the passenger can do is sit back and ride. The passenger has no control over their safety.

In this case, slowing or braking was under the control of the plaintiff.

A common carrier is held to the highest duty of care when transporting passengers.

Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.

In Illinois common carriers have been identified as: “owners of buildings with elevators; a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril”; a merry-go-round; a taxicab; and a Ferris wheel.” Here, as in most states, the safety of the passenger is totally under the control of the owner of the ride. What is different is normally a common carrier is taking people from once location to another, not around in circle or down a mountain you just ascended.

The court also examined and compared common carriers with private carriers.

Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” “Ordinarily, a common carrier must accept as a passenger any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.”

Here again, a common carrier is easily identified as a train, bus service or airline.

A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike.

The distinction between private carrier and a common carrier is gray in Illinois and the court spent time reviewing the issues. If the passenger actively can participate in the transportation and contributed to his or her own safety, the carrier is not a common carrier. In Illinois not being a common carrier does not necessarily mean a private person is a Private Carrier.

Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake to deliver goods or passengers in a particular case for hire or reward.” A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply.

Normally the distinction is made by the courts based on whether or not the carrier is a business, in the business of moving people from one place to another for a fee. Trains, busses, airlines are common carriers. Here the definition is confused because of the existence in Illinois of a broad definition of private carrier that is to say the least confusing.

Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.”

It is this distinction that the court found to be at issue in this case, whether a zip line is a common carrier or a private carrier.

The appellate court sent the case back to the trial court to determine if a zip line under Illinois law is a private carrier or a common carrier. If the trial court, which has ruled once already that a zip line, is a common carrier, rules the zip line is a common carrier, the sole issue at trial will be damages. How large will the check be that the zip line writes the plaintiff?

So Now What?

Readily accepting government regulation may provide a degree of relief in that you pass the safety inspection you are good for the season. However, once you are under that regulatory umbrella, you may also be classified by the regulations, statutes or the courts in a way you did not anticipate. You may lose defenses available to you prior to regulation.

This is similar to having a statute passed which provides liability protection for you. However this can be a two edge sword. Many state supreme courts have held that once a statute is enacted to provide protection, the only protection available is from the statute.

Many states create special categories for regulated industries. Here, falling under the regulation of the state classified the zip line as a common carrier.

The good news is the appellate court did not see the zip line as immediately qualifying as being controlled by the statute. Statutes usually define what they cover and the court did not even investigate the definition in this case.

However the court did look into whether or not a zip line was a common carrier. If the trial court finds that it is, there will be no end to the claims against zip lines in Illinois. Looked at another way, if the trial court determines a zip line is a common carrier, there will be an end to zip lines.

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

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

 


Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

April Dodge, Plaintiff-Respondent, v. Grafton Zipline Adventures, LLC, and Michael Quinn, Defendants-Petitioners.

NO. 5-14-0124

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

July 14, 2015, Decision Filed

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(E)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Madison County. No. 13-L-238. Honorable Barbara L. Crowder, Judge, Presiding.

Dodge v. Grafton Zipline Adventures, LLC, 2014 Ill. LEXIS 1270, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill., 2014)

JUDGES: JUSTICE SCHWARM delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

OPINION BY: SCHWARM

OPINION

ORDER

[*P1] Held: Appellate court declines to answer the certified question and remands to the trial court to hear evidence to determine whether exculpatory agreement is between the public and one charged with a duty of public service, i.e., a common carrier, and therefore unenforceable.

[*P2] The plaintiff, April Dodge, filed the instant suit seeking recovery for injuries she sustained while riding on an aerial zip line course designed and operated by defendant Grafton Zipline Adventures, LLC (Grafton Zipline), by which defendant Michael Quinn is employed. The circuit court certified a question after denying the defendants’ motion to dismiss.

[*P3] BACKGROUND

[*P4] In her first amended complaint filed on May 3, 2013, the plaintiff alleged that Grafton Zipline operated an aerial zip line course in which paying guests, riding from one elevated platform to another, were guided over a series of suspended wire cable runs. The plaintiff alleged that [**2] “guests [we]re outfitted with a harness and pulley system which attache[d] to the suspended cables and which in theory allow[ed] them to control their speed by braking on descents.” The plaintiff alleged that on the eighth run of the zip line course, the plaintiff’s braking system failed to slow her descent, she approached the landing platform at a high rate of speed, and she violently struck the trunk of the tree on which the landing platform was mounted, fracturing her right heel bone.

[*P5] In count I, the plaintiff alleged that Grafton Zipline was a common carrier that breached its duty of care by negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor (56 Ill. Adm. Code 6000.350 (2013)), and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn.

[*P6] On June 7, 2013, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), the defendants [**3] filed a motion to dismiss the plaintiff’s first amended complaint on the basis that the plaintiff’s claims were barred by an exculpatory agreement signed by the plaintiff prior to her participation in the zip line activity. In the agreement, the plaintiff agreed to release the defendants from liability for injury, disability, death, or loss or damage to persons or property, whether caused by negligence or otherwise.

[*P7] In the plaintiff’s memorandum of law in opposition to the defendants’ motion to dismiss, the plaintiff asserted that the defendants’ exculpatory agreement was unenforceable. The plaintiff asserted that zip line courses are common carriers under Illinois law, and as such, they cannot exempt themselves from liability for their own negligence.

[*P8] On November 1, 2013, the circuit court held that exculpatory clauses were unenforceable against plaintiffs injured by the ordinary negligence of a common carrier. The circuit court noted that when parties disagree as to whether a defendant is a common carrier, the question becomes a controverted question of fact to be determined after considering evidence. However, the circuit court found that the pleadings before it alleged sufficient [**4] facts to establish that the defendants were common carriers, in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-gorounds or other amusement rides that had been held to be common carriers. The circuit court thereby denied the defendants’ section 2-619 motion to dismiss based on the exculpatory clause but also stated that “questions of fact remain as to whether [d]efendants *** are within the definition of common carriers.”

[*P9] On March 6, 2014, the circuit court, pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), entered its order certifying the following question for appeal:

“Is an exculpatory agreement signed by a participant on a zip[ ]line course, that released the zip[ ]line operator and its employees from their own negligence, enforceable to bar the participant’s suit for negligence, or is the zip[ ]line course a common carrier such that the exculpatory agreement is unenforceable?”

[*P10] On March 20, 2014, the defendants filed an application for permissive interlocutory appeal, which we denied on April 21, 2014. On September 24, 2014, however, the Illinois Supreme Court directed this court to vacate its judgment denying [**5] the defendants’ application for leave to appeal and directed us to grant such application. Dodge v. Grafton Zipline Adventures, LLC, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill. 2014). On November 5, 2014, per the supreme court’s supervisory order and pursuant to Illinois Supreme Court Rule 308, we thereafter allowed the defendants’ permissive interlocutory appeal.

[*P11] ANALYSIS

[*P12] On appeal, the defendants argue that the exculpatory agreement signed by the plaintiff bars her negligence claims and that the exculpatory agreement is enforceable because Grafton Zipline is not a common carrier. The plaintiff counters that the circuit court’s certified question is not ripe for determination because there are unresolved questions of fact regarding whether Grafton Zipline is a common carrier. We agree with the plaintiff.

[*P13] “The scope of review in an interlocutory appeal brought under [Illinois Supreme Court] Rule 308 is limited to the certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15, 986 N.E.2d 216, 369 Ill. Dec. 267. “A reviewing court should only answer a certified question if it asks a question of law and [should] decline to answer where the ultimate disposition ‘will depend on the resolution of a host of factual predicates.’ [Citations.]” Id. “A certified question pursuant to Rule 308 is reviewed de novo.” Id.

[*P14] An exculpatory [**6] clause is a contractual provision that excuses the defaulting party’s liability. See Black’s Law Dictionary 648 (9th ed. 2009) (defining an exculpatory clause as “a contractual provision relieving a party from liability resulting from a negligent or wrongful act”); McKinney v. Castleman, 2012 IL App (4th) 110098, ¶ 14, 968 N.E.2d 185, 360 Ill. Dec. 106 (exculpatory agreement involves express assumption of risk wherein one party consents to relieve another of a particular obligation). “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” McKinney, 2012 IL App (4th) 110098, ¶ 14. “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'” Id. (quoting Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 412, 869 N.E.2d 195, 311 Ill. Dec. 521 (2007)).

[*P15] Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.'” McKinney, 2012 IL App (4th) 110098, ¶ 14 (quoting Harris v. Walker, 119 Ill. 2d 542, 548, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988)). Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common [**7] carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy. McKinney, 2012 IL App (4th) 110098, ¶ 14; Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 19, 957 N.E.2d 485, 354 Ill. Dec. 169; White v. Village of Homewood, 256 Ill. App. 3d 354, 358-59, 628 N.E.2d 616, 195 Ill. Dec. 152 (1993). Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties. See McClure Engineering Associates, Inc. v. Reuben Donnelley Corp., 101 Ill. App. 3d 1109, 1111, 428 N.E.2d 1151, 57 Ill. Dec. 471 (1981); First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill. App. 3d 413, 419, 388 N.E.2d 17, 26 Ill. Dec. 393 (1979) (“when an exculpatory provision is found invalid because of a special relationship between the parties, it is the semipublic nature of the party seeking to exculpate itself from liability that allows the court to invalidate the provision”).

[*P16] Thus, any contract by which a common carrier of goods or passengers undertakes to relieve itself from liability for loss or damage arising from its negligence or the negligence of its servants is void. Checkley v. Illinois Central R.R. Co., 257 Ill. 491, 494, 100 N.E. 942 (1913); Simmons v. Columbus Venetian Stevens Buildings, Inc., 20 Ill. App. 2d 1, 17, 155 N.E.2d 372 (1958); Restatement (Second) of Torts § 496B cmt. g (1965) (“Where the defendant is a common carrier ***, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect.”). “Having undertaken the duty to the public, which includes the obligation of reasonable care, [**8] [common carriers] are not free to rid themselves of their public obligation by contract, or by any other agreement.” Restatement (Second) of Torts § 496B cmt. g (1965).

[*P17] An exculpatory contract, wherein a common carrier of goods or passengers undertakes to exempt itself from liability for negligence “if sustained, would relieve the carrier from its essential and important duties to the public growing out of the character of its employment, and tend to defeat the foundation principle on which the law of common carriers is based; that is, the securing of the highest care and diligence in the performance of the important duties due to the public.” Checkley, 257 Ill. at 494; see also Simmons, 20 Ill. App. 2d at 17. “The heightened status afforded to common carrier[ ] *** relationships is based on the protection of the public ***.” Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 912, 939 N.E.2d 1067, 345 Ill. Dec. 887 (2010); see also Simmons, 20 Ill. App. 2d at 17 (“It has been said if there is any general reason for the rule to be deduced from the passenger cases, it is that the public service consideration alone prevents contractual limitation of liability for negligence.”).

[*P18] In holding that a common carrier has a duty to exercise the highest degree of care consistent with the practical operation of its conveyances to protect its passengers (Rotheli v. Chicago Transit Authority, 7 Ill. 2d 172, 177-78, 130 N.E.2d 172 (1955); Browne v. Chicago Transit Authority, 19 Ill. App. 3d 914, 917, 312 N.E.2d 287 (1974)), courts have considered the “‘unique control [a common [**9] carrier] possesses over its passengers’ safety.'” Krywin v. Chicago Transit Authority, 391 Ill. App. 3d 663, 666, 909 N.E.2d 887, 330 Ill. Dec. 865 (2009) (quoting Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151, 154, 632 N.E.2d 1069, 198 Ill. Dec. 458 (1994)); see also O’Callaghan v. Dellwood Park Co., 242 Ill. 336, 345, 89 N.E. 1005 (1909) (“If the injury of a passenger is caused by apparatus wholly under the control of a carrier and furnished and managed by it, and the accident is of such a character that it would not ordinarily occur if due care is used, the law raises a presumption of negligence.”). “Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.” Sheffer, 261 Ill. App. 3d at 156. “[C]ommon carriers are responsible for their patrons’ physical safety for which there is no second chance if a mistake should occur.” Zerjal, 405 Ill. App. 3d at 912.

[*P19] In determining whether a defendant is a common carrier that owes the highest degree of care in transporting its passengers, the courts have characterized the following as common carriers: owners of buildings with elevators (Rotheli, 7 Ill. 2d at 177); a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril” (O’Callaghan, 242 Ill. at 344); a merry-go-round (Arndt v. Riverview Park Co., 259 Ill. App. 210, 216-17 (1930)); a taxicab (Metz v. Yellow Cab Co., 248 Ill. App. 609, 612 (1928)); and a Ferris wheel (Pajak v. Mamsch, 338 Ill. App. 337, 341, 87 N.E.2d 147 (1949)).

[*P20] In finding that an escalator was not a common carrier, the Illinois Supreme Court in Tolman found [**10] it significant that a person on an escalator may actively participate in the transportation in a manner similar to the use of a stairway and may contribute to his own safety. Tolman v. Wieboldt Stores, Inc., 38 Ill. 2d 519, 526, 233 N.E.2d 33 (1967). The court noted that the role of a passenger on a train, bus, or elevator is a passive one, and ordinarily such a passenger cannot exercise any control over his own safety. Id. at 525. The court further held that the rule as to the higher duty one owning and operating an elevator owes to a passenger riding in same, who is injured through some defect in its operating mechanism, is predicated upon the fact that a person riding in an elevator cannot possibly know or show, if such elevator gets out of control, what caused it to do so. Id. at 524-25. The court noted that because the elevator owner was in sole control of the elevator and the machinery used in its operation, an inference of negligence on the part of said owner arose out of the circumstances. Id.; see also Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 125, 733 N.E.2d 874, 248 Ill. Dec. 199 (2000) (because bank had full control of premises, it had the duties of common carrier owed to the plaintiff who suffered injuries when the lift he was riding suddenly fell); Carson v. Weston Hotel Corp., 351 Ill. App. 523, 532, 115 N.E.2d 800 (1953) (lessee in full control of the premises had the duties of a common carrier of elevator [**11] passengers).

[*P21] While proper solicitude for human safety requires a carrier of passengers not to diminish its liability to them, the relative bargaining power of the parties is also a factor. Simmons, 20 Ill. App. 2d at 17. In Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 43-44, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), the plaintiff sought to recover for injuries she suffered on a tour run where she rode a segway onto a small grassy hill, and it threw her off. The plaintiff signed a release before participating in the tour. Id. The plaintiff argued, however, that her social relationship with the defendant and its tour guide rendered the release unenforceable. Id. at 46. The court concluded, without analysis, that the defendant was not a common carrier. Id. Finding also that that there was no disparity of bargaining power because the plaintiff simply could have refused to join the tour if she had disagreed with the exculpatory clause, the court held that the exculpatory language of the release was enforceable. Id.

[*P22] Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” Long v. Illinois Power Co., 187 Ill. App. 3d 614, 628, 543 N.E.2d 525, 135 Ill. Dec. 142 (1989). “Ordinarily, a common carrier must accept as a passenger [**12] any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.” Id. “[A] common carrier may be liable for an unexcused refusal to carry all who apply.” Doe v. Rockdale School District No. 84, 287 Ill. App. 3d 791, 794, 679 N.E.2d 771, 223 Ill. Dec. 320 (1997). A common carrier is “obligated by law to undertake the charge of transportation, which none but a common carrier, without a special agreement, is.” Rathbun v. Ocean Accident & Guarantee Corp., 299 Ill. 562, 566, 132 N.E. 754 (1921).

[*P23] A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. Id. at 567. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike. Green v. Carlinville Community Unit School District No. 1, 381 Ill. App. 3d 207, 211, 887 N.E.2d 451, 320 Ill. Dec. 307 (2008); Illinois Highway Transportation Co. v. Hantel, 323 Ill. App. 364, 375, 55 N.E.2d 710 (1944). Again, common carriers necessarily have control and regulation of the passengers’ conduct and of the operation of the carriage before they can be held to the extraordinary liability of common carriers to such passengers. Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence).

[*P24] “Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake [**13] to deliver goods or passengers in a particular case for hire or reward.” Rathbun, 299 Ill. at 566. A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply. Green, 381 Ill. App. 3d at 211; Rockdale School District No. 84, 287 Ill. App. 3d at 795.

[*P25] “Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.” (Internal quotation marks omitted.) Long, 187 Ill. App. 3d at 630. When a plaintiff affirms and the defendant denies that the defendant is operating as a common carrier, the question becomes a controverted question of fact to be determined by a consideration of the evidence by the trial court. Rathbun, 299 Ill. at 566; Bare v. American Forwarding Co., 242 Ill. 298, 299, 89 N.E. 1021 (1909); Hantel, 323 Ill. App. at 374; Beatrice Creamery Co. v. Fisher, 291 Ill. App. 495, 497, 10 N.E.2d 220 (1937).

[*P26] Accordingly, we find that whether Grafton Zipline is a common carrier is a question of fact, “dependent upon the nature of the business in which [it is] engaged, and [is] to be determined from a consideration of all of the evidence.” Beatrice Creamery Co., 291 Ill. App. at 497. In its order, the circuit court noted that questions of fact remained regarding whether Grafton Zipline is a common carrier. [**14] We agree and find this so with regard to the certified question. To determine whether the exculpatory clause is unenforceable on the basis that Grafton Zipline is a common carrier “charged with a duty of public service” the court must necessarily determine disputed factual issues. The court must determine whether Grafton Zipline had control and regulation of the passengers’ conduct and of the operation of the carriage (see Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence)); whether the plaintiff actively participated in the transportation and contributed to her own safety (Tolman, 38 Ill. 2d at 525-26 (because escalator allowed the plaintiff to actively participate in the transportation and allowed control over safety, escalator not common carrier); whether there was a disparity of bargaining power between the parties (see Hamer, 402 Ill. App. 3d at 43-44 (exculpatory clause enforceable where plaintiff could simply have refused to join the segway tour)); and whether Grafton Zipline made a profession to carry all who applied for carriage (see Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 647, 826 N.E.2d 1030, 292 Ill. Dec. 594 (2005) (because medical transport van served only those individuals [**15] who met its eligibility requirements, could decline to serve anyone based on numerous factors such as location and availability of medical transport vans, made no profession to carry all who apply for carriage, and was not bound to serve every person who may apply, medical transport van was not a common carrier)). To answer the certified question before the circuit court has heard evidence on these matters would be premature. Thus, we decline to answer the certified question, and we remand the cause for further proceedings consistent with this order. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 477, 693 N.E.2d 358, 230 Ill. Dec. 229 (1998).

[*P27] CONCLUSION

[*P28] For the reasons stated, we decline to answer the certified question as its ultimate disposition depends on the resolution of multiple factual predicates. We remand the cause to the Madison County circuit court for further proceedings.

[*P29] Certified question not answered; cause remanded.


Federal court voids release in Vermont based on Vermont’s unique view of release law

Release is thrown out and arbitration clause is deemed unconscionable and modified by the court. The defendant was left with a one sentence assumption of the risk clause.

Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443

State: Vermont, United States District Court for the District of Vermont

Plaintiff: Joseph P. Littlejohn

Defendant: Timberquest Park at Magic, LLC, and Corporate Challenge, Inc., d/b/a Adventure Más

Plaintiff Claims: negligently designed, constructed, and operated the course

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2015

This is an interesting group of facts about how something simple and easily over looked in building and operating a challenge (ropes) course and a zip line can lead to an accident and then a lawsuit. Combine those facts with the Vermont Supreme Court’s decisions on releases and the defendants lose in this case.

The plaintiff was a 76 year old man. A friend of the plaintiffs purchased tickets online to go to the defendant challenge course at the ski area. The park is a self-guided aerial adventure park where the guest is taught how to clip in and then ascends through the course to the top where they then descend through a series of zip lines.

This is a commercial course purchased for amusement rather than a normal challenge or ropes course which is built for team building or other goals for the benefit of the guests. Meaning the sole purpose of this course is entertainment.

The belay system is called a “smart belay” is attached to the system and the guest at all times.

The trees and poles used to create the course are supported by guy cables or wires. While descending, the course the plaintiff clipped into a guy wire rather than a zip line. He rode the zip line down hitting a tree.

The first issue was the claim by the plaintiff that he was not notified until he arrived at the course that he would be required to sign a release. However it was later agreed that as you started to pay for the course tickets it notified you a release was required.

Upon arrival the plaintiff signed a release on a tablet. The release included a clause that stated any claim for more than $75,000 had to be arbitrated. The arbitration clause required the plaintiff and the defendant to choose one arbitrator who then chose the third arbitrator. The third arbitrator had to be “an officer or director of another company that operates a zip-line course.”

The plaintiff (or his insurance company) sued.

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

The first issue the court looked at was whether the release was valid under Vermont law. The court looked at four decisions from the Vermont Supreme Court concerning releases and determined the factors needed for a release to be valid in Vermont. In Vermont the factors are not only how the release is written but what the release is attempting to shield from liability.

In Vermont the question is, is “the business is open to the general public without regard to special training or ability and the premises owner is in the best position to assure the safety of visitors.” That means if the defendant is “in control of the location were the injury occurred and whether the premises were open to the general public.”

The court then examined the zip line course and compared it to a ski area. “As this discussion indicates, the court is satisfied that attending a zip-line program is more like visiting a ski area than like taking part in a specialized high-risk sport which requires skill and experience.”

The court found the course was not going to be protected by a release.

The course is designed and controlled by defendants. There is no indication in the record that anyone needs to learn to use the course beyond an initial training class offered at the park. It is even more open to the public than skiing, which typically involves beginner’s lessons and some degree of acquired skill. The zip-line course requires no such training or skill.

The release was void as a release. The court then looked at whether a document would survive as proof the plaintiff assumed the risk. The agreement contained the following clause:

“[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.”

This clause survived the agreement and the court was going to allow the clause to be used at trial to show the plaintiff assumed the risk.

The arbitration clause was the next clause in the document, (since it is no longer a release).

As drafted, the clause works in the following way: a claimant seeking damages in excess of $75,000 is required to proceed to binding arbitration. Claims of $75,000 or less are not subject to arbitration. The arbitration panel is composed of three members. Each side chooses one member. The two members then select the third, who must be “an officer or director of any entity that operates an aerial adventure park with zip lines in the United States.” If the first two panel members cannot agree on a third, a judge within the District of Vermont shall appoint the third member “utilizing the selection criteria for the neutral as set forth above.”

The plaintiff argued the arbitration clause was unconscionable.

First, he argues that the provision is procedurally unconscionable because it is contained in small print in a contract of adhesion that was presented to him well after he paid for his tickets. Second, he maintains that the arbitration clause is substantively unconscionable because the third arbitrator is required to be an officer or director of another company that operates a zip-line course, thus tilting the arbitration panel in favor of TimberQuest. Finally, he argues that the arbitration clause lacks mutuality because it has no application to a claim by TimberQuest against a customer.

The first argument was small print. This argument is still raised if for no other purpose then to put in the judge and/or juries mind that the contract is a bad thing. However the court found the print size was the same as the rest of the document and had a “conspicuous header.”

The customer’s signature line is on the second page, giving him an opportunity to read the text before signing. Although the agreement was presented to Littlejohn as a preprinted contract with no real opportunity to negotiate the terms, he could have declined to participate in the course and requested his money back if he objected to the arbitration provision.

As the Vermont Supreme Court has repeatedly pointed out, “unequal bargaining power alone will not nullify a contract.”

The plaintiff then argued that because he was not notified he was required to sign a release until he arrived at the site the arbitration clause should be void. However his friend who purchased the tickets was informed of the requirement and because the plaintiff had not objected when presented with the release this argument failed.

The court looked at the arbitration provisions that the arbitrator had to be picked from the zip line industry was unfair. “Courts have long refused to enforce arbitration clauses which call for the appointment of panel members who are likely to harbor a bias in favor of one side or another.”

The agreement did contain a severability clause. This clause states that if one part of the agreement is void then the void section is thrown out but the rest of the agreement is still valid. Here the severability clause saved what defense was left for the defendant.

The contract between the parties includes a severability clause: “To the extent that any portion of this Agreement is deemed to be invalid under the law of the applicable jurisdiction, the remaining portions of the Agreement shall remain binding and available for use by the Host and its counsel in any proceeding.”

This gave the court the power to enforce the arbitration clause by reforming it altering it to fit the law. “The court will enforce the severability clause to strike the provision requiring the choice of a “neutral” arbitrator who is likely to hold a bias in favor of the zip-line industry. The remaining question is the issue of mutuality.”

The plaintiff then argued that the entire agreement was void because it lacked consideration. He paid for the tickets one day and three weeks later had to sign the release. However this failed. Consideration is does not have a time requirement.

Littlejohn argues that the agreement was unsupported by consideration because he was forced to sign it weeks after he had paid for the tickets. This argument is without merit. “[A]ny performance which is bargained for is consideration.” TimberQuest’s performance in this case was allowing Littlejohn to use its adventure zip-line course. In exchange, Littlejohn’s friend paid for their tickets. Upon arrival at the park, he promised that he would submit his claims to arbitration or agree to limit his recovery in court to $75,000.

The court then set the requirements for the parties to proceed.

As reformed by the court, the arbitration provision is valid. Under the agreement, there is no cap on damages if the participant chooses to go to arbitration. If the participant chooses to go to court, he or she agrees to seek $75,000 or less in damages. This court only has jurisdiction over a diversity case if the amount in controversy “exceeds the sum or value of $75,000.” This provision is strictly construed, and does not extend jurisdiction to a claim for an even $75,000. Thus, Littlejohn may not bring suit in this court. The court accordingly dismisses plaintiff’s negligence claims for lack of subject matter jurisdiction and without prejudice to plaintiff’s right to demand arbitration.

So Now What?

This case is similar to Geographic Expeditions, Inc., v. The Estate Of Jason Lhotka, 599 F.3d 1102; 2010 U.S. App. LEXIS 6606 discussed in Complicated serious of cases created to defend against a mountaineering death. There the release was thrown out because it was so onerous that the court could not stand it.

Under the rational the court determined from the Vermont Supreme Court cases any recreational based activities on land owned by the defendant that is open for business a release will not be valid. Whether nor not a guided operation on federal or state land be subject to this restriction is unknown, however the amount of federal land in Vermont is minimal and not used for recreation.

If the guest is taking the property as in a rental program then the release maybe valid. Renting a car, renting skis or renting a canoe is probably covered by a release in Vermont. However a ski rental shop that is owned by the ski area and incorporates into its release protection for the ski area will probably be void in Vermont.

The next issue is the assumption of risk clause that survived the release.

“[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.”

If the courts in Vermont see the word “inherent” as a limiting term, the assumption of the risk clause may fail. Inherent has been defined to mean the risk associated with the sports that are part of the sport. Removal of the inherent risk removes the nature of the sport or activity. Risk would mean all aspects of the activity, not just the inherent ones.

This is a class example where a word has become associated to create a phrase because it “feels good.” However the word either has a different meaning when legally defined than its not legal definition or the definition of the word is not understood. If under Vermont law inherent is a limiting term the actual risks the plaintiff assumes could be very narrowly construed.

Small print is just stupid now days. Courts are still voiding releases if your release or release language is in small print. More importantly if the judge can’t read the document because the print is so small the court will always through the document out. Always make sure the print in any legal document is all the same size and no smaller than the font size required for pleadings in the court.

This case points out two major issues. The first is releases in Vermont as difficult if at all possible to use for outdoor recreation programs and businesses. The exception may be if you are someone not open to the public such as a college or university.

The second issue is whatever document you use, release or acknowledgement of risk agreement it has to be fair. If it is going to stop a lawsuit then it must inform your guests that is the purpose of the agreement. If you are going to assume the risk with the agreement the risks must be identified and the possible injuries must be pointed out. If you require arbitration the arbitration clause must conform to the laws controlling arbitration and the arbitration rules itself which is based on a neutral arbitrator.

Here arbitration was a good idea. However arbitration is not necessarily so. Arbitration has general come to mean you are deciding how much money to pay to the other side. Arbitration is usually quick and a lot less costly. Arbitration in many states limits the damages and in some states arbitrators cannot award punitive damages.

However a well written release in a state that supports release law is better than arbitration. It does not allow for any payment. A motion for summary judgment is fairly quick and easy to file after limited discovery and can be cheaper over all with a better long term effect than arbitration.

If you operate on a state listed here: States that do not Support the Use of a Release you may want to look or may only have the ability to use an assumption of the risk document and arbitration. If you are providing program to minors and your state does not support the use of a release to prevent minor’s claims, arbitration and assumption of the risk is probably best for you. See States that allow a parent to sign away a minor’s right to sue.

Either way you go the agreement must be clear, easily understood, written in English, with print large enough to read and an agreement that court will look at and determine is fair.

The final issue is the court itself. You MUST evaluate your business or program from your guest’s point of view. You know and understand how your course works. Your guest does not have that knowledge. Here a guest could not see the difference between the zip line and a guy line. It is easy enough to attach warning signs on the guy lines.  Rap red tape around the guy lines and tell guest don’t touch anything red.

Look through your program from your guests inexperienced eyes, not your battle worn glasses.

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Youth Internships Available with the National Park Service

Four national internship programs now accepting project proposals – DUE October 30

Please help distribute to others in your park that might be interested in applying

InsideNPS Article

http://inside.nps.gov/index.cfm?handler=viewnpsnewsarticle&type=Announcements&id=17861

The WASO Youth Programs Division is pleased to announce that four national internship programs (See below) are now accepting project proposals for the 2016 summer work season. These professional development internship programs provide quality work experiences for diverse individuals ages 18-35 in various fields across the NPS system. Project proposal applications are due COB Wednesday, October 30thfor most programs listed below.

National Youth Employment Programs:
Historically Black Colleges and Universities Internship Program (HBCUI): This program is designed to link college students attending Historically Black Colleges and Universities (HBCUs) to appointments at NPS sites and program offices. This program is administered by our nation NPS partner Greening Youth Foundation (GYF) (alex_tremble or 202-513-7159.

Latino Heritage Internship Program (LHIP): LHIP aims to provide meaningful work experiences to Latino students in the fields of cultural resources, interpretation, and outreach. LHIP is administered in partnership with the Hispanic Access Foundation (HAF) and the Environment for the Americas (EFTA). In addition to working on substantive NPS assignments, LHIP interns receive additional mentoring and support through HAF and EFTA. See more at Paloma_bolasny or 202-354-2174.

Mosaics in Science (MIS): The MIS Program provides youth under-represented in natural resource science career fields with meaningful, on-the-ground, work experience in the NPS. The program is administered by the Geologic Resources Division in collaboration with other Natural Resource Stewardship and Science (NRSS) Divisions and the Youth Programs Division. MIS positions are fully funded by the WASO Youth Programs Division. Parks and programs interested in applying for a MIS position must submit a position description by COB Sunday, November 1stat lisa_norby or 303-969-2318.

NPS Academy (NPSA): NPS Academy is an innovative, experiential learning program designed to introduce undergraduate and graduate students, ages 18-35, from under-represented communities to career opportunities with the National Park Service. Many of the interns attend a week-long orientation over spring break and serve in 12-week summer internships tailored to various NPS career tracks. Summer internships are available in a variety of fields, including visitor services, education, resource management – and many more (epoore) or Dave Barak (dbarak) for more information on the application process.

Ben Baldwin

Office of Interpretation, Education & Youth Engagement

Intermountain Regional Office
National Park Service

(303) 969-2319

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