Discover Maine by Bike
The Bicycle Coalition of Maine has launched a week-long bicycle ride, BikeMaine, that will run from September 7-14, 2013.
The 400 mile loop ride travels on mostly rural, low traffic roads offering magnificent scenery and allows riders to explore six host communities, each providing a unique Maine experience: college town, mill town, arts community, historic maritime village, summer colony, and traditional Maine camp.
Riders will enjoy meals featuring locally sourced, in season food, tours and nightly entertainment. The $875 registration fee includes a fully supported route, 18 meals, ample beverages and snacks during each day’s ride, baggage transport, camping facilities, hot showers, and other rider amenities.
Visit BikeMaine for more detailed information. This year’s ride is limited to 350 riders, so sign up today to ensure your place in the inaugural BikeMaine ride.
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Copyright 2013 Recreation Law (720) Edit Law
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By Recreation Law Recemail@example.comJames H. Moss #Authorrank
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Maine Revised Statutes Annotated by LexisNexis(R)
TITLE 10. COMMERCE AND TRADE
PART 3. REGULATION OF TRADE
CHAPTER 210-A. SALES REPRESENTATIVE COMMISSION CONTRACTS
GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY
10 M.R.S. § 1341 (2012)
§ 1341. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. COMMISSIONS. “Commissions” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales.
2. PRINCIPAL. “Principal” means a person, partnership, corporation or other business entity that does not have a permanent or fixed place of business in this State and that:
A. Manufactures, produces, imports or distributes a product for wholesale;
B. Contracts with sales representatives to solicit orders for the product; and
C. Compensates the sales representative, in whole or in part, by commission.
3. SALES REPRESENTATIVE. “Sales representative” means a person who:
A. Contracts with a principal to solicit orders for the purchase at wholesale of the principal’s product;
B. Is compensated, in whole or in part, by commission; and
C. Does not place orders or purchase for that person’s own account or for resale.
§ 1342. Notice of termination
Unless a contract between a sales representative and a principal provides otherwise, a party terminating the contract must give the other party 14 days’ written notice of the termination.
§ 1343. Contract
If a contract between a sales representative and a principal is terminated, the principal shall pay to the sales representative all commissions accrued under the contract within 30 days after the effective date of that termination. Any provision of any contract between a sales representative and a principal that purports to waive any provision of this chapter is void.
§ 1344. Civil liability
1. PRINCIPAL LIABILITY. A principal who fails to comply with the provisions of section 1343 is liable to the sales representative in a civil action for exemplary damages in an amount that does not exceed 3 times the amount of commissions due the sales representative, plus reasonable attorney’s fees and costs.
2. FRIVOLOUS ACTION. When the court determines that an action brought by a sales representative against a principal under this chapter is frivolous, the sales representative is liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
3. OTHER REMEDIES. Nothing in this chapter invalidates or restricts any other right or remedy available to a sales representative, or precludes a sales representative from seeking to recover in one action on all claims against a principal.
4. JURISDICTION. A principal who is not a resident of this State that contracts with a sales representative to solicit orders in this State is declared to be transacting business in this State for purposes of the exercise of personal jurisdiction over nonresidents under Title 14, section 704-A.
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Lloyd v. Sugarloaf Mountain Corp. et al., 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131
The plaintiff argued the release was not valid because the injury occurred during a practice run.
In this case, the plaintiff was injured during a practice run for a mountain-bike race. The plaintiff sued the ski area, Sugarloaf Mountain and the organization that sponsored the race National Off-Road Bicycle Association (NORBA). NORBA is now part of USA Cycling. The name of the race was the Widowmaker Challenge mountain bicycle race. The name was mentioned several times in the opinion.
Before racing the plaintiff had to sign a release to join NORBAwhere he signed a release. He also signed a release to enter the race. The lower court granted the defendants motion for summary judgment and based on an indemnification clause in one of the releases granted the defendants judgment against the plaintiff for $18,420.50.
The plaintiff argued the first release was superseded by the second release, and the second release was ambiguous and vague. He also argued that because the injury occurred during a practice run, the releases did not apply. All parties agreed that the racers had to participate in the practice session.
The NORBA release was a well-written release and excluded claim for liability for negligence of any person or organization. The race release simply said discharge the defendant for all claims and liability and promise not to sue. However, the race release contained indemnification language that allowed the defendants to counterclaim for the costs and attorney fees for defending the lawsuit.
The plaintiff sued for negligence and willful and wanton negligence. The race release gave the plaintiff the idea to sue for willful and wanton negligence I suspect because in the indemnification clause language, it excluded claims for willful and wanton negligence.
However, Maine does not support claims for willful and wanton negligence.
The court first looked at the releases to see if one release superseded the prior release. To supersede another agreement one agreement must be inconsistent with the other agreement. The court found this was not the case. Although they were similar and overlapped, and one was more specific than the other was not enough to make the releases inconsistent. Nor was there anything in either agreement to indicate that one release was to supersede the other release.
The next issue the court reviewed was whether the releases were valid under Maine law. Maine like most states holds that a release “…must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.”” Releases are strictly construed against the party seeking immunity from liability.
The court found the membership release, the NORBA release that referenced negligence in the release “…sufficiently spells out the parties’ intent to extinguish the negligence liability of NORBA and Sugarloaf”
The court then examined the claim that the practice run where the plaintiff was injured was not sufficiently connected to the race to be covered by the release. However, the court found that since the practice session was mandatory the release covered it. The court also found the language in the release covered the practice run.
The final argument made by the plaintiff was the release was against public policy in Maine. The court stated it would be “hard-pressed” to conclude that an event titled Widowmaker Challenge is a public service or that there was a compulsion on the part of the participants to sign that would make the release void as against public policy.
Finally, the court looked at the indemnification clause in the second or race release. The court found the language was unambiguous and that the plaintiff was contractually bound to indemnify the defendants.
There was a dissent in the case. The dissent argued the release should be upheld but that the indemnification clause in the release was unclear and ambiguous. Under Maine’s law to be clear the language of the release must be unequivocal in its intent:
…on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.
The dissent also found the indemnification clause to be ambiguous. A contractual provision is “ambiguous if it is reasonably possible to give that provision at least two different meanings.”
The dissent found two different meanings to the clause in the defendant’s motions. NORBA’ s briefs argued the clause one way and Sugarloaf’s brief interpreted the clause a different way.
So Now What?
This case is pretty simple and quite clear.
1. Your release needs to include the word negligence under Maine law.
2. Your release must not be written to conflict with any other release that may be used in the same case to prevent litigation. If you are aware of two or more releases being signed by the parties for the same event, make sure the releases do not cancel each other out.
3. Make sure your release covers all aspects of the activity. You can never tell when an accident will occur, where a person will be injured or whether or not someone may sue because of those issues.
4. Although upheld by the majority a dissent always should be read to make sure your release or language incorporates any of those issues in the future. Dissents with a change of the court can become a majority opinion in the future, even with the legal precedent of stare decisis.
5. If you name your event with a scary name, there is a better chance that participants and the courts will understand it was a risk event.
6. Make sure your release is clearly written and written so that the person signing the release cannot argue they did not understand the release.
Sugarloaf needs to thank NORBA for writing a release that protected both of them. NORBA should thank Sugarloaf for at least writing an indemnification clause that worked.
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Thomas Rice, Et Als, Plaintiffs vs. American Skiing Company, Et Als, Defendants
Civil Action Docket No. CV-99-06
SUPERIOR COURT OF MAINE, OXFORD COUNTY
2000 Me. Super. LEXIS 90
May 8, 2000, Decided
May 9, 2000, Filed
DISPOSITION: [*1] Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim GRANTED; Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint DENIED; and Defendants’ Motion for Summary Judgment on Count II of Plaintiffs’ Complaint GRANTED.
DECISION AND ORDER
This matter is before the court on the motion of the plaintiff Laurene Rice for summary judgment, dated December 6, 1999, directed to the defendants’ counterclaim and on the defendants’ motion for summary judgment, dated January 6, 2000, directed to the plaintiffs’ complaint.
The plaintiffs Thomas and Laurene Rice are the parents of the plaintiff Nicholas Rice. The defendants Sunday River Skiway Corporation (SRS) and Perfect Turn, Inc. (Perfect Turn), are affiliates of each other and subsidiaries of the defendant American Skiing Company (American Skiing). 1 SRS owns and operates the Sunday River Ski Resort in Newry, Maine (Sunday River). SRS also operates a ski school there called “Perfect Kids Children’s Program” (ski school), but does not require individuals to enroll in the ski instruction program as a precondition to skiing at Sunday River. The defendant Timothy McGuire [*2] is employed by SRS as a ski instructor.
1 On April 26, 2000, the parties filed a stipulation of dismissal without prejudice as to American Skiing Company and Perfect Turn, Inc.
On December 13, 1997, the plaintiffs went to Sunday River to ski. Nicholas was almost nine years old at the time and Laurene enrolled him in the ski school. She selected the Level Three program for people who already had certain skiing skills. 2
2 In deposition testimony, Timothy McGuire described that skill level:
Q. Would you please tell us again what Level Three meant in terms of skill level?
A. That it meant that they were able to form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.
Defendants’ Statement of Material Facts, Ex. B at p. 22.
[*3] Prior to Nicholas’ enrollment in the class, Laurene signed a form entitled “Acknowledgement & Acceptance of Risks & Liability Release” (Ski Enrollment Form) on behalf of herself and her son. The document began with a “WARNING” about the hazards of “Alpine activities” 3 and the challenges of the ski school program, then included language purporting to be a release by Laurene and Nicholas 4 of SRS and
“its owners, affiliates, employees and agents from any and all liability for all personal injury  arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”
See Affidavit of Joseph R. Saunders, Esq. The document concluded with Laurene’s agreement to indemnify the defendants “for all awards, legal expenses and settlements arising out of” her child’s participation in the ski school and his use of the Sunday River premises. Thomas did not sign the Ski Enrollment Form and there is no evidence that he was involved in the enrollment process. The parents went off to ski while Nicholas was in class.
3 The hazards included many of the dangers or conditions included in the definition of “inherent risks of skiing” in Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act. 32 M.R.S.A. § 15217(1)(A) (Supp. 1999). See Affidavit of Joseph R. Saunders, Esq.
4 The document included the following language:
“As a parent/guardian with legal responsibility for a minor participant, I am authorized to sign this agreement for that child. I consent and agree for the minor child to be bound by this agreement ….”
See Affidavit of Joseph R. Saunders, Esq.
The ski class began around 9:30 a.m. McGuire first taught the class “rule number one” which was “you don’t pass the coach.” Nicholas fell at one point during a training run in the morning session. McGuire and the rest of the class went further ahead, then stopped and formed a group. When the boy caught up to them, McGuire was finishing an instruction about a skiing maneuver for stopping called a “hockey stop”.
The class broke for lunch at 11:15 a.m. and resumed shortly after the noon hour on a trail called Mixing Bowl. Ski conditions were good and the trail was in good shape. McGuire took his charges on a “fun run” down the slope again instructing the class not to ski past him. Nicholas fell and the group stopped further on to wait for him. He got up and began skiing toward them. He [*5] started going faster and panicked. As he approached the group, he could not slow down. He tried to do a “hockey stop”, skied off the side of the trail, hit a tree and was injured.
A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Panasonic Communications & Sys. Co. v. State, 1997 ME 43, P10, 691 A.2d 190, 194 (citing Gonzales v. Comm’r, Dep’t of Pub. Safety, 665 A.2d 681, 682-83 (Me. 1995)). Even if the parties differ as to the legal conclusions to be drawn from the historical facts before the court, if there is no serious dispute as to what those facts are, consideration of a summary judgment is proper. North East Ins. Co. v. Soucy, 1997 ME 106, P8, 693 A.2d 1141.
At the heart of it, the plaintiffs allege that the defendants, acting through McGuire, were negligent in their supervision of Nicholas. Laurene’s separate claim for lost wages can only survive on the strength of this negligence claim. The defendants disclaim responsibility by virtue of the immunity provisions of Maine’s Skiers’ and Tramway Passengers’ Responsibilities [*6] Act, 32 M.R.S.A. § 15217 (Supp. 1999), and the provisions of the Ski Enrollment Form signed by Laurene.
Maine’s Skiers and Tramway Passengers’ Responsibilities Act
The threshold issue is whether the Act immunizes the defendants against liability for a claim of negligent supervision. The court concludes that it does not. The Act relieves ski area operator’s from responsibility for injuries that result from the “inherent risks of skiing–such as skiing into a tree. Id. However, the statute expressly provides that it “does not prevent the maintenance of an action against the ski area operator for  the negligent operation  of the ski area”. 32 M.R.S.A. § 15217(8)(A). 5 Nicholas’ claim of negligent supervision clearly falls within the Act’s “negligent operation” exclusion.
5 See McGuire v. Sunday River Skiway Corp., 1994 WL 505035, *5 (D. Me.), in which Judge Hornby wrote “McGuire’s argument for liability might have some appeal if her skiing instructor had encouraged her to do something inappropriate during her lesson. That might amount to negligent operation of the ski area.”
[*7] Nicholas’ Claim
The issue then becomes whether the boy’s claim against the defendants has been effectively released by his mother. This issue requires an examination of the meaning and validity of the release language in the Ski Enrollment Form.
Releases in general are not against public policy. See Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983). However, for its terms to be valid, a release absolving a defendant of liability for its own negligence “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” The courts have “traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language which allegedly exempts a party from liability for his own negligence.” See Hardy v. St. Clair, 1999 ME 142, P3, 739 A.2d 368, 369, citing Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me. 1979). The release must be construed strictly. See Doyle, 403 A.2d at 1207-08 (citing Prosser, Torts, § 68 (4th ed. 1971)) (it must appear that [*8] the terms of the release were “brought home to the plaintiff”).
The release that Laurene signed on behalf of herself and Nicholas prevents claims
“against [SRS], its owners, affiliates, employees and agents from any and all liability for all personal injury, including death or property damage arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”
See Affidavit of Joseph R. Saunders, Esq. (emphasis added). This language is unambiguous and, if valid, clearly releases the defendants from liability for damages and losses sustained as a result of negligence in the operation of the ski area, which would include the claim of negligent supervision in this case. The interpretation of an unambiguous contract is a question of law, see Fleet Bank of Maine v. Harriman, 1998 ME 275, P4, 721 A.2d 658.
More to the point of this case, the issue is whether an unambiguous release of negligence claims given by a parent on behalf of her child is valid. The defendants cite Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), as [*9] support for their assertion that a parent can give a binding release of such claims on behalf of the child. However, Zivich stands for the more limited proposition “that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sports activities where the cause of action sounds in negligence.” 82 Ohio St. 3d at 374 (emphasis added). The decision was grounded on two public policy considerations: first, nonprofit sports organizations would be unable to get volunteers without such releases and would go out of existence; and, second, parental authority to make and give such releases is of constitutional importance. However, the first consideration is inapplicable to the facts of this case–none of the defendants is a nonprofit organization and McGuire was not a volunteer–and the court is not persuaded by the second.
The defendants’ do make a broader public policy argument addressed to the facts of this case. They assert that ski schools are offered by ski areas for the convenience and safety of their guests. If releases on behalf of minors are unenforceable, ski areas will be reluctant to offer [*10] training and instructions to children, whose safety will then be as risk. This is not an inconsequential point. However, it is a risk against which a for-profit business may insure itself. 6 This court cannot conclude that the public policy consideration espoused by the defendants is paramount to the right of the infant to his negligence claim.
6 The court is mindful that in Zivich the Ohio Supreme court determined that “insurance for the [nonprofit] organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs.” 82 Ohio St. 3d at 371-72. However, the point in Zivich, which involves a volunteer, is distinguishable from this case, which involves a paid employee. While a volunteer may reasonably expect that he should suffer no penalty for the consequences of his gratuitous acts, a paid employee–such as Defendant McGuire–may not.
There are numerous cases holding contrary to the defendants’ position. See, e.g., Scott v. Pacific West Mtn. Resort, 119 Wn.2d 484, 834 P.2d 6 (Wash. 1992) [*11] (en banc); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458, 460 (Vt. 1982). Maine appears to side with these decisions. In the case of Doyle v. Bowdoin College, supra, the Law Court was unequivocal in its declaration, albeit dicta, 7 that “this Court has held that a parent, or guardian, cannot release the child’s or ward’s, cause of action.” Doyle v. Bowdoin College, 403 A.2d at 1208 n.3. This language is too unequivocal to ignore. In fact, other courts holding in line with Scott have cited Doyle as support for this proposition. See Scott, 834 P.2d at 12 n.19; see also International Union v. Johnson Controls, Inc., 499 U.S. 187, 214, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991)(White, J., concurring) (“the general rule is that parents cannot waive causes of action on behalf of their children”); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994).
7 Although it is dicta, courts have cited Doyle for the proposition that a parent cannot release a child’s causes of action.
[*12] The court concludes that the claim for negligent supervision brought on behalf of Nicholas is not barred by the release provisions of the Ski Enrollment Form signed by his mother.
Laurene’s claim for lost wages arises out of and is dependant upon her son’s claim for negligent supervision. As noted, the release language is unambiguous and clearly releases the defendants from liability for damages and losses “arising from any alleged negligence in the operation  of the ski area”, which includes the claim of negligent supervision in this case. Although this court concludes that Nicholas’ cause of action survives the release provisions of the Ski Enrollment Form, his mother’s claim does not. See Scott v. Pacific West Mtn. Resort, 834 P.2d at 12 (holding that although child’s cause of action is not barred by parents’ signing of release, parents’ claims based on child’s injury are barred by unambiguous and conspicuous release); see also Childress v. Madison Cty., 777 S.W.2d 1, 7-8 (Tenn. Ct. App. 1989) (although child and child’s father are not bound by release signed by mother, she is barred from bringing claims based [*13] on child’s injuries).
Finally, there remains the issue of whether Laurene is obligated to indemnify the defendants against Nicholas’ cause of action. In Maine, the Law Court views clauses “indemnifying a party against its own negligence with disfavor, and directs courts to construe them strictly against such a result.” See International Paper Co. v. A&A Brochu, 899 F. Supp. 715, 719 (D. Me. 1995), citing Emery Waterhouse, 467 A.2d at 993. However, the court may uphold an indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties. “[A] clear reflection of mutual intent requires language from the face of which the parties unambiguously agree to indemnification for indemnitee negligence.” See id. In International Paper, the court upheld the validity of such an indemnification clause that provided, as follows:
“SELLER does hereby agree to indemnify and hold harmless PURCHASER from and against any and all claims, damages, debts, demands, suits, actions, attorney fees, court costs and expenses arising [*14] out of, attributable to, or resulting from SELLER’S or any supplier’s said operations, whether the same are caused or alleged to have been caused in whole or in part by the negligence of PURCHASER, Its (sic) agents or employees.”
Id. (emphasis added). However, unlike International Paper, it is not clear that the indemnification provision in this case applies to the defendants’ own negligence. 8 The Ski Enrollment Form provides as follows:
“I hereby indemnify the ski areas named above, its owners, affiliates, employees and agents for all awards, legal expenses and settlements arising out of the child’s participation in this clinic and the use of the ski area premises.”
Employing a strict construction analysis, the court concludes that this language is ambiguous and does not reflect an express mutually intended agreement that Laurene will indemnify the defendants against their own negligence. In fact, it seems more suited to an interpretation that the indemnification is for losses or damages caused by Nicholas while participating in the ski school.
8 See McGraw v. S.D. Warren Co., 656 A.2d 1222, 1224 (Me. 1995), where the court held that Cianbro did not specifically agree to indemnify Warren for damages caused by Warren’s own negligence where the clause provided:
The contractor [Cianbro] is responsible for and shall continuously maintain protection of all the work and property in the vicinity of the work from damage or loss from any cause arising in connection with the contract and any work performed thereunder. [Cianbro] shall indemnify and hold owner [Warren] harmless for any claims, suits, losses or expenses including attorneys’ fees suffered by [Warren] arising out of injury to any person including [Warren's] or [Cianbro's] employees or damage to any property, including [Warren's] property if the injury or damage is caused in whole or in part by [Cianbro] or any of [Cianbro's] subcontractors, material men or anyone directly or indirectly employed or otherwise controlled by any of them while engaged in the performance of any work hereunder.
[*15] Based on the conclusion that the Ski Enrollment Form does not include an indemnification by Laurene against the defendants’ own negligence, the court does not need to reach the plaintiffs’ further claim that the indemnification clause is unconscionable as a contract of adhesion. See Dairy Farm Leasing Co., Inc. v. Hartley, 395 A.2d 1135, 1139-40 (Me. 1978) (“where a standard-form, printed contract is submitted to the other on a ‘take it or leave it’ basis, upon equitable principles the provisions of the contract are generally construed to meet the reasonable expectations of the party in the inferior bargaining position; when a contract of adhesion is exacted by the overreaching of a party, the defense of unconscionability may be asserted”).
Pursuant to Rule 79(a) M.R.Civ.P., the Clerk is directed to enter this Decision and Order on the Civil Docket by a notation incorporating it by reference, and the entry shall be:
Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim is GRANTED;
Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint is DENIED; and
Defendants’ Motion for Summary Judgment on Count II of [*16] Plaintiffs’ Complaint is GRANTED.
Dated: May 8, 2000
Justice, Superior Court
Negligent supervision is not covered under most state skier safety acts.
Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
When reading a case, there are usually some tell-tale signs on how a decision will head. One indication is a misunderstanding of how the sport works by the court. In this decision, it is clear the court probably has never skied or been to a ski area.
The court commented on the fact that the ski area did not require skiers to take a class. The court used the term “hockey stop” to describe a way that a skier stopped. Finally, the court identified each time the plaintiff fell skiing, like it was something new or different.
Facts of this case are the mother of the injured skier signed her son up for skiing lessons. In the process of signing up for the lessons, the mother signed a release.
During the lesson, the son lost control of his skis and skied into a tree suffering injury.
The plaintiffs, mother and son, sued on a claim of negligent supervision of the injured son and for lost wages of the mother. The defendant ski area argued the Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act (Skier Act), 32 M.R.S.A. § 15217 and the release signed by the mother prevented their claims.
The court found the Skier Act protected the ski area from the inherent risks of skiing. The Skier Act also prevents suits for negligent operation of the ski area. The court found that negligent supervision was not an inherent risk found in the Skier Act nor was it part of the operation of the ski area.
The court then looked at the release and the two claims the defendant argued were prevented by the release. The first was the minor’s claim for his injuries.
The court found under Maine law that a release must “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” A release in Maine, as in most states, is strictly construed. This means the language of the release must be close to perfect to be upheld. The court found the release was not ambiguous (another possible defense) and the terms were clear in its intent.
The court then looked at whether Maine allowed a release to stop claims by minors and found it did not. A release under Maine law does not stop claims by a minor. This is in line with the law in more than 40 states.
The mother’s claims were based on the minor’s claims. This means for the mother to recover the minor’s claims had to be legally valid and not subject to a defense. Since the minor’s claims were valid, then the mother’s claims could proceed.
The mother’s claims are derivative claims. They derive from the main claim and are subject to all of the defenses of the main claim and any defenses of the derivative claim itself. If the main claim fails then the derivative claim also fails. Derivative claims are any claims that are created because of the main claim. Claims of spouses when another spouse is injured are derivative as is the claim of a parent when a child is injured.
The next issue was whether the ski area had a separate defense to the mother’s claims which it did. The claims of the mother were stopped under Maine law because the mother signed the release.
The final defense brought by the ski area was the indemnification language in the release. Indemnification language faces three battles in the courts.
1. Courts hate indemnification language in these situations.
2. Courts hate indemnification where the person who is injured is indemnifying against his own injuries.
3. Courts require indemnification language to be exact and the language is always strictly construed.
Here the court found that Maine law allows indemnification if the “indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties.” Here the court found the indemnification language in the release was ambiguous and was not conforming to the language required under Maine law. Therefor the court did not require indemnification by the parents for the son’s injuries.
This decision with a similar set of facts is probably close to how the majority of state courts will rule.
The skier safety act does not cover negligent supervision.
A release does not stop a claim by a minor.
A release will probably stop a claim by an adult.
The indemnification language in a release will probably not support a counterclaim for indemnification by the defendant against the person who signed it.
Of course there are exceptions to the above statements. Some state skier safety acts would include operations of the ski school within the risks of skiing. Three or four states allow a parent to sign away a minor’s right to sue.
Very few if any courts will uphold indemnification language in a release. If you want to have an enforceable indemnification clause you probably will have to have a separate agreement with specific and exact indemnification language in the agreement.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
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