The American Avalanche Association is currently seeking persons to fill two vacancies on AAA’s Management Team: Executive Director and AVPRO Course Coordinator. AVPRO is the AAA’s Professional Avalanche Worker School. Both positions are part-time paid positions.

The Executive Director runs the daily operations of the AAA and provides support to all AAA committees and The Avalanche Review. Additionally, the Director represents the AAA at avalanche industry events such as the ISSW, NAS, and regional meetings and seminars. This is a part-time year round position. Qualified individuals need not be AAA Members.

The AVPRO Course Coordinator is responsible for all aspects of scheduling and planning one to two AVPRO course per winter. Candidates must be AAA Professional Members and AAA Certified Instructors or have the required experience to become a Certified Instructor.

Complete position descriptions can be found on the AAA Employment Page at this link; http://www.avalanche.org/employment.php

Thank you, the AAA Governing Board

I have a presentation in early April to a group of college administrators. The power point for that presentation is: Things You Don’t Know and Should.

The presentation is difficult to understand as a standalone web based PowerPoint. You always need my personality to interpret what I do. However there are some interesting issues I covered.

·         The different way college students view themselves versus how their parents view them, and the consequence to a college of that issue.

·         The value of a well-written release to college programs

·         Assumption of the risk is education at a college

·         How to deal with an outdoor recreation disaster

·         Why People Sue

·         Who should handle your claims

·         The legal issues that risk management plans create

What do you think? Leave a comment.

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

Copyright 2013 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         #Authorrank

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, NHEIC, Risk Management, College, Nazarene,

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Filed under: College Program, James H. Moss, Risk Management, Why People Sue Tagged: AdventureTravel, College, Jim Moss, Nazarene, NHEIC, Outdoor recreation, Risk Management, Ropes course ]]> http://recreation-law.com/2013/05/22/powerpoint-i-gave-at-the-nheic-risk-management-committee-meeting/feed/ 0 jhmoss http://recreation-law.com/2013/05/21/nw-avalanche-center-2012-13-newsletter-03/ http://recreation-law.com/2013/05/21/nw-avalanche-center-2012-13-newsletter-03/#comments Tue, 21 May 2013 12:00:21 +0000 Recreation Law http://recreation-law.com/?p=5135 ]]>

Avalanche Institute Avalanche Store Avalanche Education Avalanche Incidents Avalanche News Avalanche Forums - Friend us - Like us – Follow us An Update from the Avalanche Center http://www.avalanche-center.org/ May 9, 2013 [Previous, December 5] – [Next, ? ] – [Updates Archive Index] Featuring: Climbers Avalanche Course for Spring Spring Clearance Sale Beacon Park Notes Quick Links: html version – http://www.csac.org/Organization/updates/2013-05-09.php Donate, Join, Renew – http://www.avalanche-center.org/Organization/contribute/ Facebook Profile – http://www.facebook.com/avalanche.center Facebook Page - http://www.facebook.com/pages/Avalanche-Center/26051450867 Avalanche Store – http://www.avalanche-center.org/store/ Avalanche Institute - http://www.avalanche-center.org/institute/ Translate: http://translate.google.com/ (Opens in new window) Introduction, From the Director It seems the entire winter went by with no updates this season. Resources have continued to diminished and my own time has been split between an increasing number of other things. However, the Avalanche Center is still here and there have been things happening. Even now we have a very timely spring climbers avalanche course available, designed specifially for this time of year as opposed to mid-winter skiing. Following the minimal auction we held this season I was on an extended trip for entirely unrelated business. Following that was the annual Outdoor Retailer Show in Utah where we had an exhibitor table for the first time. This was good exposure within the industry, although whether it results in any benefits as far as providing public services is unclear. More recently I had another lengthy trip also unrelated to this project. But despite the unrelated trips and the somewhat involved OR show trip the Level 1 course has been operating and the store has operated, which is essential as it is the primary source of funding at this time. Shirt Sale – After reducing our supply of shirts earlier we purchased a large number for the OR show, as well as a supply of decals. We sold quite a few but not nearly as many as we had ordered so we are still having a sale. We have all sizes S-XL in comfortable light weight short sleeves for summer, they are $15 including the shipping. You can get yours here: http://www.avalanche-center.org/shirts.php Education – Avalanche Institute Our Spring Climbers Course is now in full swing. This is a much simpler and shorter version of a complete Level 1 course and covers spring conditions with an emphasis on climbing (including spring ski mountaineering). In the Northwest US there is a secondary maximum in avalanche fatalities in May and June, and in Oregon the majority of all fatalities have been in late May and the very beginning of June. This is not a slightly modified Level 1 course with a “twist” of some kind. The weather and snowpack modules are spring specific and do not cover the complications of mid-winter. There is no field day, the emphasis is entirely on planning a safe climb to begin with. Mountaineering usually involves starting before dawn and ascending steep slopes, any kind of snowpit observation once on the slope is a bit of an afterthought. Timing and the current surface conditions are the essential factors and most accidents happen at times when these things should have been identified before leaving home. Originally it was estimated that this was equivalent in value to half of a complete Level 1 course. But given the complexity and completeness of the Level 1 course and after reviewing the climbing course we have set the regular cost at one third of the Level 1. Students who have completed our Level 1 can take the Climbers course free, and will have covered some of it already. Students who complete the Climbers course this spring may apply it’s full value towards a Level 1 course if they decide to pursue the complete in-depth material next fall. Right now, through most of May, we are even discounting this particular course below the full value. And as always, members can pay even less. (Members – if you’re not logged in on the registration page just click the key icon to log in, the page should then refresh with the lower price.) As with the Level 1 course there are complete details posted. You can start with a flowchart of the course modules, click on any of them for specific objectives, and click on the listing to the side for a complete description of any given module. Not only do we provide such complete details on what you will cover but we can guarantee you will be able to cover all of it. There will be nothing lost due to time constraints, outdoor conditions, any temporary loss of attention span, etc. Like all of our complete courses this is a course, not a tuotrial or forum. There are scored assessments throughout so you have feedback and reinforcement, there is access to an instructor at any point in the course, and there are tools to collaborate with instructors and other students. Incidentally, these pages are the first to use a new design for the Avalanche Institute which is consistent with the actual course pages. Feedback is welcome, especially with any problems encountered. They are heavily css based which is somewhat of a new approach for this site. Store – Spring Sale We have some items left to get rid of on sale. They’ve been posting on e-bay and we’ve sold some that way but close to everything is listed on the sale page now. There are still quite a few probes, B-1 and B-2 BCA shovels, and a few other things left. We’d like to get rid of these before the end of May, partly to free up space and partly because we need the cash flow over summer. As always there are even lower prices for members, and no shipping. If you are on the sale page and not logged in it will show that. Click the key icon, log in, and the page should refresh with members deals. (When we began members features they were all just linked to from the welcome page but we have converted most of them to this method of displaying the members version to members who are logged in automatically. Incidentally, shirts on the store sale page are even cheaper than the page linked to in the introduction above, and on the members sale page they are even cheaper – as cheap as we can possibly sell them for! (The price on the shirts page is somehow built in as $15 so until we figure out how to change that in paypal the store sale page is lower.) Beacon Park Notes One of our customers was doing some very in-depth practicing and beacon analysis this winter and the outcome is worth sharing. He had what he felt were strange results with his new digital beacon. To eliminate the possibility of a faulty beacon we replaced it for him, although it seems like now that it was faulty. He continued to try multiple beacon searches with different brands and models and numbers of targets with mixed results. In the end it appears one of the primary issues was using a beacon park for too many targets. The targets in beacon parks are not actual beacons – before long these would be recovered and disappear. They are very good simulations and work fine until you search for too many at once. SInce every park and each beacon model is a bit different, and spacings and orientations are different, it’s not possible to give a number for “too many”. But if you increase the number of target signals and it seems like your beacon is not acting quite right there are probably signal issues due to complicated spacings, orientations and other factors among the beacon simulators. This should not be a serious limitation on the value of these parks for practice, it is possible to search for several signals and have a reasonable response from your beacon. Realistically it is very uncommon to have to search for very many signals at once, and to the extent it may happen any more than 3 should be extremely rare. There are a few such cases in our incident database than spans almost 2000 reports and 15+ years, but not many. The beacon park “saturation” issue came up after some email discussions this customer had with other alpine club members, at least one representative from a beacon manufacturer, guides, and others. It appears to be the major reason for differences between several real beacons buried and too many signals in a park. But there are some secondary factors in some situations as well – there have always been potential difficulties with older analog beacons as targets, especially using flagging features for them, and differences in models may cause a few issues. It’s also important to get a feel for the best speed to move at, it seems that for many digital beacons steady but slow is best but be sure to practice with your own to see. Moving too fast or too abrupty may not allow the processing to keep up, especially with multiple burials. So beacon parks are great for testing your beacon skills and finding out about any quirks with search speed, multiple signals, etc. But if you turn on too many targets and things don’t seem to work right you may just be exceeding the limits of what you can do there. (And the limits of what you really need to do anyway.) One result of all the trial and error and discussion behind this is that Yuri probably knows his beacon very well by now, and probably has excellent searching skills! On Tap … There is work to be done this month as time allows and updates will be sent as that gets done. Aside from running the climbers course and selling off what’s left in the store the next task is continued catching up on the years incidents. This has been going on but slowly and any comments on this will have to wait for the next update. Even though labor has always been almost entirely donated the spectre of paying overhead costs is always there, even through summer, and the biggest thing that helps the project right now is to contribute. Purchasing your equipment from us helps a lot too and often includes membership as well as access to educational material. Remember: Contribute and join: http://www.avalanche-center.org/Organization/contribute/ Buy your equipment here: http://www.avalanche-center.org/store/ Be a Facebook Friend: http://www.facebook.com/avalanche.center Like our Facebook Page : http://www.facebook.com/pages/Avalanche-Center/26051450867 We are up to 1770 friends and 205 followers on Facebook – are you one of them? If you are have you suggested us to any of your friends? Jim Frankenfield Executive Director

Filed under: Avalanche, Skiing / Snow Boarding Tagged: avalanche, Colorado, Colorado Avalanche, Colorado Avalanche Information Center, Facebook, Loveland Pass, Ski, skiing, Snowboard ]]> http://recreation-law.com/2013/05/21/nw-avalanche-center-2012-13-newsletter-03/feed/ 0 jhmoss Avalanche-Center.org header facebook icon-facebook-like.jpg twitter http://recreation-law.com/2013/05/20/release-for-bicycle-tour-wins-on-appeal-but-barely/ http://recreation-law.com/2013/05/20/release-for-bicycle-tour-wins-on-appeal-but-barely/#comments Mon, 20 May 2013 12:00:11 +0000 Recreation Law https://recreationlaw.wordpress.com/?p=5106 ]]> Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)

If the release were written properly, the appeal would not have occurred; maybe the lawsuit would not have occurred.

The decision from the Florida Court of Appeals looks at a release sued by the defendant bicycle tour company. An accident occurred when the front wheel fell off the bike injuring the plaintiff.

There are few facts in the decision. It is not clear if it was purely a bike rental or was a bike tour that included bikes. It appears it was a tour. Nor does the case describe how the wheel fell off or the injuries of the plaintiff.

At the trial court, the case went to trial with a jury decision for the defendant.

The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters.

Post-trial the plaintiff filed several motions to have the jury verdict reversed for a new trial. A new judge granted the motion for a new trial finding the release at issue failed to contain specific unambiguous language needed under Florida’s law for a release to be valid.

The defendant appealed.

Summary of the case

The plaintiff’s argument on appeal was the language of the release at issue did not have the necessary language. However, the court found the argument and the cases cited by the plaintiff to not be similar to the release at question.

Releases are valid under Florida’s law: “… waivers or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal.”

The release in question used the word negligence and relieved the defendant of all liability.

So Now What?

The entire release quoted by the court consisted of one paragraph. It is not clear if the release was longer or contained any other language; however, based on how the court quoted the release it does not appear to be.

The release squeaked through after spending thousands of dollars to defend and probably three or more years of time.

If you have your release properly written it is going to be much longer than one paragraph. That length may add three or more years to your life that do not contain litigation.

Plaintiff: Mark Schecter and Karen Schecter

Defendant: Travent, Ltd.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant. The release was sufficient to stop the claims.

 What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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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               #Authorrank

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Travent, Ltd., Bicycle Tour, Florida, Schecter,

WordPress Tags: Release,bicycle,Travent,Schecter,LEXIS,lawsuit,decision,Florida,Court,Appeals,defendant,accident,bike,plaintiff,rental,bikes,injuries,jury,agreement,Schecters,negligence,Post,verdict,Summary,argument,Releases,waivers,clauses,paragraph,dollars,length,life,litigation,Mark,Karen,Claims,Defenses,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Tour,three

Filed under: Case Analysis, Cycling, Florida, Release / Waivers Tagged: Defendant, Florida, Law, Lawsuit, Negligence, Plaintiff, Trial court, United States ]]> http://recreation-law.com/2013/05/20/release-for-bicycle-tour-wins-on-appeal-but-barely/feed/ 0 jhmoss http://recreation-law.com/2013/05/20/travent-ltd-v-schecter-718-so-2d-939-1998-fla-app-lexis-12840-23-fla-l-weekly-d-2384-fl-app-1998/ http://recreation-law.com/2013/05/20/travent-ltd-v-schecter-718-so-2d-939-1998-fla-app-lexis-12840-23-fla-l-weekly-d-2384-fl-app-1998/#comments Mon, 20 May 2013 11:59:38 +0000 Recreation Law https://recreationlaw.wordpress.com/?p=5104 ]]> Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)

Travent, Ltd., Appellant, v. Mark Schecter and Karen Schecter, his wife, Appellees.

CASE NO. 97-2491

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384

October 14, 1998, Opinion Filed

SUBSEQUENT HISTORY: [**1] Released for Publication October 30, 1998.

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 93-17334 09.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: Kenneth W. Moffet of Moffet & Alexander, P.A., West Palm Beach, for appellant.

Walter G. Campbell, Jr. of Krupnick, Campbell, Malone, Roselli, Buser, Slama, and Hancock, P.A., Fort Lauderdale, for appellees.

JUDGES: DELL, J., GUNTHER and WARNER, JJ. concur.

OPINION BY: DELL

OPINION

[*939] DELL, J.

Travent, Ltd. appeals the order granting Mark and Karen Schecters’ Motion for Judgment in Accordance with Motion for Directed Verdict and Motion for New Trial. Travent contends that the trial court erred when it granted the Schecters’ motion for directed verdict because they signed an agreement that released their claims. Travent also contends that the trial court erred when it granted the new trial because the Schecters waived any error concerning the admission of the release and invited any error in the jury instructions. We reverse.

The Schecters filed suit alleging that Travent’s negligence in the operation of bicycle tours caused serious injuries [**2] to Mark Schecter when the front wheel of the bicycle he rode fell off. ¹ In its amended answer, Travent submitted the document signed by the Schecters, providing in pertinent part,

1 The Schecters also filed suit against Travel Center of Broward, Inc. d/b/a Compass-McQuade Travel. Travel Center is not a party to this appeal.

AGREEMENT: I have read and do understand Cycling Safely stated on the other [*940] side, and agree to follow [the safety precautions stated therein]. In consideration of being permitted to participate in a tour operated by TRAVENT International and TRAVENT Ltd., I do for myself, my heirs, legal representatives and assigns hereby release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour. Furthermore, I assume full responsibility for [**3] the risk of bodily injury, death or property damages while participating in said tour.

Both parties moved for directed verdicts based on the release. The court denied the motions.

The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters. Thereafter, the Schecters filed a Motion for Judgment in Accordance with the Motion for Directed Verdict and a Motion for Mistrial, or in the alternative, a Motion for a New Trial. After a hearing, Judge Robert L. Andrews, successor to Judge Levon Ward, concluded,

The Release was insufficient to preclude liability on the part of the Defendant [Travent] . . . . [and that] because the Release contains no specific and unambiguous language asserting that the Defendant cannot be sued for its own negligence, the Plaintiffs were entitled to a Motion for Directed Verdict on the Release as a matter of law.

(emphasis in original). The trial court granted the Schecters’ motion for directed verdict, denied the motion for mistrial, and granted their motion for a new trial.

Travent argues that the trial [**4] court erred when it granted the Schecters’ motion for a directed verdict because their claims were barred by the release. We agree and reverse. In granting the directed verdict, the trial court relied on Zinz v. Concordia Properties, Inc., 694 So. 2d 120 (Fla. 4th DCA 1997). In Zinz, a premises liability case, the document signed by appellants provided that

“the undersigned agree to indemnify and hold Concordia … harmless” and that: the undersigned agree that Concordia … shall in no way be responsible for the action of the undersigned in the access to Villa Mare and/or Villa Costa, nor shall Concordia and the Town of Highland Beach be liable for damages arising out of any activities in which the undersigned are so involved.

Id. at 121. This court concluded that “the general terms ‘indemnify … against any and all claims’ did not sufficiently disclose the intention to indemnify against the negligence of the indemnitee.” Id. Here, the agreement specifically refers to Travent and states that the signator does release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives [**5] and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.

(emphasis added).

The Schecters cite Witt v. Dolphin Research Center, Inc., 582 So. 2d 27 (Fla. 3d DCA 1991), where the trial court found that an action was barred by the terms of a release and awarded summary judgment in favor of the appellee. Id. The Third District Court of Appeal held, “Since there is no specific reference in the release to the appellee’s ‘negligence’ at all, it is clear that, as a matter of law, they provide no defense to the negligence claim in this case, and that the judgment must therefore be reversed for trial on that ground.” Id.

The Schecters also argue that the trial court’s directed verdict should be affirmed based on Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318 (Fla. 4th DCA 1984). In Van Tuyn, the appellant sued appellee for injuries she sustained after falling from a mechanical bull. Prior to riding the mechanical device, she signed a written waiver providing in pertinent part,

I hereby voluntarily release, waive, and discharge CLUB DALLAS, [**6] Marr Investments, [*941] Inc., their lessors, heirs successors and/or assigns from any and all claims, demands, damages and causes of action of any nature whatsoever which I, my heirs, my assigns, or my successors may have against any of them for, on account of, or by reason of my riding or attempting to ride this Bucking Brama Bull.

Id. at 320. This court concluded that the agreement in Van Tuyn “is devoid of any language manifesting the intent to either release or indemnify Club Dallas, Marr Investments, Inc., for its own negligence. Therefore, the agreement does not, as a matter of law, bar the Appellant’s recovery.” Id.

In Van Tuyn, the written waiver did not state that it released the subject parties from negligent acts. The release signed by the Schecters differs from that in Witt and Van Tuyn because it releases Travent “for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.”

We find merit in Travent’s argument that the release signed by the Schecters should be considered in light of this court’s decision in Banfield v. Louis, 589 So. 2d 441 (Fla. 4th [**7] DCA 1991). In Banfield, before competing in a triathlon, the appellant completed and signed the official entry form:

In consideration for the acceptance of my entry, I, for my heirs, executors and administrators, release and forever discharge the United States Triathlon Series (U.S.T.S.), CAT Sports, Inc., Anheuser-Busch, the Quaker Oats Company, the city, county, state or district where the event is held and all sponsors, producers, their agents, representatives, successors and assigns of all liabilities, claims, actions, damages, costs or expenses which I may have against them arising out of or in any way connected with my participation in this event, including travel to or from this event, and including injuries which may be suffered by me before, during or after the event. I understand that this waiver includes any claims based on negligence, action or inaction or any of the above parties.

Id. at 443. The trial court concluded that the waiver provision in Banfield barred appellant’s negligence claims against the sponsors, organizers, and promoters, and therefore granted summary final judgment in favor of appellees. Id. at 443-44. This court stated that [HN1] waivers [**8] or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal,” id. at 444, and affirmed the summary judgment because “when Banfield signed the waiver, she knew that she was releasing all of the sponsors and promoters, as well as their agents, from liability.” Id. at 445.

As in Banfield, the subject agreement provided that the Schecters were releasing Travent, its agents, and its employees from liability, “whether caused by negligence or otherwise.” There is no meaningful difference between the language used in the subject release from that considered by this court in Banfield. Therefore, the language in the subject release must be interpreted to mean that the Schecters released, waived, and discharged Travent International, Travent, Ltd. and its agents and employees from all liability, caused by their own negligence or otherwise.

We hold that the trial court erred when it granted the Schecters’ motion for directed verdict and ordered a new trial. We further hold that the trial court should have granted Travent’s motion for directed verdict. Accordingly, we reverse the order granting [**9] the directed verdict in favor of the Schecters and ordering the new trial. We remand this cause to the trial court to enter judgment in favor of Travent. Our holding makes it unnecessary to discuss Travent’s remaining point on appeal.

REVERSED AND REMANDED.

GUNTHER and WARNER, JJ. concur.

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Steven W. Burr, Ph.D.

Associate Professor of Recreation Resources Management

Director, Institute for Outdoor Recreation and Tourism

Extension Specialist in Outdoor Recreation and Tourism

Utah State University

5220 Old Main Hill

Logan, UT 84322-5220

(435) 797-7094 Office

(435) 797-4048 Fax

email: steve.burr

website: www.extension.usu.edu/iort

The 2013 National Extension Tourism (NET) Conference will be held August 6-9, 2013, in Fort Shelby, Michigan. Visit the NET website at http://www.extensiontourism.net/ for more information.

2013 NET Conference Flyer_final.pdf

The Yellow-billed Cuckoo was named Cuculus americanus in 1758. (Photo credit: Wikipedia)

Position: Yellow-Billed Cuckoo Field Crew Leaders and Surveyors, Lower Colorado River, Arizona, California, and Nevada

Start Date:  May30- August 25

Status: Seasonal

Number of Openings: 2 Crew Leaders and 9 Surveyor Crew

Fred Phillips Consulting (FPC) is potentially looking for 2 field crew leaders and 9 surveyor crew members to conduct Yellow-Billed Cuckoo surveys on the Lower Colorado River from Lake Mead area south to the U.S. Mexican Border pending funding. The teams will be based out of Yuma, AZ, Parker, AZ, and Blythe, CA and work will be conducted at Havasu National Wildlife Reserve, Bill Williams River NWR, Cibola NWR, and Yuma East Wetlands. FPC is teaming with PRBO Conservation Science to conduct 5 years of yellow-billed cuckoo monitoring on the Lower Colorado River. FPC is a small business environmental consulting company based out of Flagstaff, AZ. We have been designing, implementing, managing and monitoring large-scale habitat restoration projects on the Lower Colorado River for over 12 years, including wildlife and bird surveys.

Two crew leaders are needed to conduct surveys from May 30- August 30. Crew leaders will assist with Yellow-billed cuckoo surveys along the lower Colorado River. Duties will include: supervising 1-5 biological technicians, project logistics, data collection and management, and conducting presence/absence surveys.

Nine field surveyors are needed from May 30- August 30. Field surveyor crew duties include conducting presence/absence yellow-billed cuckoo surveys using a playback tape method and data entry. 

Qualifications Required:

Crew leaders must have 1) at least one year of field crew leader experience and an additional 2-3 years of avian survey

Colorado River @ Lake Mead National Recreation, Nevada / Arizona (Photo credit: Wikipedia)

experience, 2) know how to navigate using a map and GPS unit, 3) have computer and data management skills, 4) experience with call-back bird survey methods, 5) the ability to carry a heavy backpack in hot and humid conditions, off-trail in remote areas. Crew leaders need to have a valid driver’s license and be certified in First Aid and CPR.

Field surveyors must: 1) have previous avian field work experience, 2) skills using a map and GPS unit in the field, 3) be able to carry a heavy backpack in hot and humid conditions, off-trail in remote areas, 4) have computer skills, and 5) work in pairs or individually in the field.

Housing and work vehicles will be provided. Individuals will be responsible for getting themselves to and from field housing during non-working hours.

Field and Survey Conditions:

The Lower Colorado River is hot and humid during the summer with temperatures ranging from 80-115 F. Field work is initiated in the early morning prior to sunrise, and often times accessing field sites will be conducted in the dark. Work will include conducting surveys in the morning and entering data on the computer the same day. Field staff will work a 5 day on and 2 day off schedule, but must be able to work any days of the week. The schedule may change and field staff must be adaptable to those changes. Some crew, particularly crew leaders, may have to work over 40 hour weeks.

Check out more of the exciting work we are doing at http://www.fredphillipsconsulting.com

Email/Mail Resume and references to:

Yellow billed cuckoo fws (Photo credit: Wikipedia)

Heidi Trathnigg

htrathnigg@fredphillipsconsulting.com

401 South Leroux Street

Flagstaff, AZ 86001

928-773-1530 Phone

928-774-4166 Fax

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

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

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer,

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National Safe Boating Council (Photo credit: Wikipedia)

YOU ARE INVITED TO COME JOIN THE COAST GUARD AUXILIARY AT CHATFIELD STATE PARK, SATURDAY, MAY 18, @ THE SOUTH MARINA RAMP AREA

TO HELP SET A NEW WORLD RECORD OF PEOPLE WEARING LIFE JACKETS.

This event is the kickoff to National Safe Boating Week, May 18-24, 2013, by the National Safe Boating Council. All Scouts in full uniform (bring your life jacket with you though) will be admitted at the Park’s entrance on Saturday morning for this photo opportunity. Arrive prior to 11:45 a.m. to allow time for parking. Gather by 11:45 a.m. at the grassy area adjacent to the South Marina ramp area. There will be Auxiliary signs posted for your convenience. A group photo, like the one above, will be taken at Noon and submitted later to the National Safe Boating Council so they can add up the numbers. LET’S BREAK 4,000 THIS YEAR!

Auxiliarists will be on hand to answer questions from scouts and parents about Recreational Boating Safety as well as be available for vessel safety checks on any and all boats you or your unit might be using this boating season. The Auxiliary hopes to have their Patrol Boats in the water on Saturday as well. Scouts would be allowed to view these facilities and ask questions about what the Auxiliary members do while on patrol on our reservoirs. (However, U.S.C.G. regulations prohibit anyone other than Auxiliarists be on board these facilities. Sorry Scouts.)

Any questions or concerns please call Amy McNeil at (303) 973-6207. Hope to see you all there.

English: United States Coast Guard Chief Director Auxiliary (“The Director of the Auxiliary is the direct representative of the Commandant of the United States Coast Guard to the United States Coast Guard Auxiliary” (Title 14 United States Code Chapter 23) (Photo credit: Wikipedia)

Several Corrections have been made to items reported earlier.

If this information is incorrect or incomplete please let me know.  This is up to date as of March 28, 2013. Thanks.

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

2012 – 2013 Ski Season Deaths

Blue is a death of an employee while working

There is a rumor, unsubstantiated of a fatality at a Colorado Ski Area. Supposedly a skier hit a tree.

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.

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Copyright 2013 Recreation Law (720) Edit Law

blog@rec-law.us

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Copper Mountain, Snowmass, alpine Meadwos, Donner Ski Ranch, Donner Ski Ranch, Helmet, Vail, Boyne Highlands Resort, Sun Valley ski resort, Keystone Ski Resort, Aspen Mountain, Mammoth Lakes, Breckenridge, wish, Hit Tree,

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I thought, “Well, maybe some women road bikers would like to become “switch hitters?”

In addition there are also private lessons available for both women and men.

The information sheet about these clinics from the City’s spring catalog.

__._,_.___

1 of 1 File(s)

Women MTB Lessons.pdf

_._,___

Would you have ever guessed that capture the flag would lead to a lawsuit?

This case was dismissed by the trial court on a summary disposition which is called a motion for summary judgment in most jurisdictions. The case had been dismissed before trial because the trial court found that:

I can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.

The case arose at a summer camp when the campers were play capture the flag. At either end of the field, there was a circle with a pole and a flag on top of the pole. The pole was to locate the flag. The flag was a piece of cloth lying at the base on the ground within the circle.

One of the girls either was not told what the flag was or misunderstood what the flag was and instead of grabbing the flag lying on the ground grabbed the pole and started running. The plaintiff ran into the bottom of the pole which had a metal stake which hit her in the mount. The plaintiff lost one tooth, and three other teeth were broken.

The plaintiff sued claiming negligence and claims for premise’s liability. Premise’s liability is the legal theory that based on the type of person you are the duty owed by the land owner changes. Since the plaintiff was on the land, she claimed the landowner/defendant had not kept her safe to the legal standard required.

Summary of the case

The court first looked at the Definition of Negligence under Michigan Law. The elements to prove negligence in Michigan are identical to the majority of other states. “The elements of a negligence claim are “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.”

The court then determined that the issue the trial court had decided was that there was no duty owed to the plaintiff. The court then defined how a duty was to be determined.

“When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.””

“This inquiry involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” But the most important factor is the relationship of the parties.

The court found that the defendant owed a duty to provide proper instructions on how the game of capture the flag was to be played.

In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole. Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.

Once it is determined that the defendant owes the plaintiff a duty of care, then the reasonableness of the defendant’s conduct is a question of fact for the jury.

The court also looked at whether the injury was proximately caused by the actions of the defendant. “Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences.” However, the court held that proximate cause was a question for the jury.

The final issue was the premise’s liability claim. The court agreed with the trial court and upheld the dismissal of the claim. The plaintiff was an invitee to the land, and as such she was owed a “duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.‘””

The court found that the plaintiff was not harmed by a dangerous condition on the land. The danger was solely caused by the actions of the other campers not an inherent condition of the premises.

The appellate court sent the case back to the trial court on the issue of whether the camp was negligent in the way it instructed and ran the capture the flag game.

So Now What?

Kids get hurt. There is not much you can do about that, and if you can, you have probably stopped the earth from rotating. There was not much you can do here from a legal perspective to stop this litigation except tell parent’s things they should already know.

Kids get hurt. When your bring child to this camp, we will do everything we can to keep your child safe. However, we cannot protect your child from everything, much of anything. Between the outdoors, you not being here and other campers all sorts of injuries occur.

Do you understand that when you bring your child to this camp, your child can be hurt?

You could keep campers from playing games, or you could keep young girls who are being chased from running without looking where they are going. However, I think that earth rotation thing will be easier.

Plaintiff: Jonathan C. Gamze, as Next Friend for Julie Gamze,

Defendant: Camp Sea-Gull, Inc. and William P. Schulman, Defendants-Appellees, and Emily Lisner, Defendant

Plaintiff Claims: negligence and premises liability

Defendant Defenses: No duty and injury not caused by the premises

Holding: Premises liability claim was dismissed and the case was returned for trial on the negligence claim.

What do you think? Leave a comment.

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Email: Rec-law@recreation-law.com

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

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Filed under: Case Analysis, Michigan, Minors, Youth, Children, Summer Camp, Youth Camps Tagged: Camp Sea-Gull, Capture the Flag, duty, Emily Lisner, Inc., Jonathan C. Gamze, Julie Gamze, Proximate Cause, summer camp, William P. Schulman, Youth Camp ]]> http://recreation-law.com/2013/05/13/camp-held-liable-when-a-camper-misunderstands-instructions-and-plaintiff-was-not-paying-attention/feed/ 0 jhmoss http://recreation-law.com/2013/05/13/gamze-v-camp-sea-gull-inc-2012-mich-app-lexis-1227-mich-app-2012/ http://recreation-law.com/2013/05/13/gamze-v-camp-sea-gull-inc-2012-mich-app-lexis-1227-mich-app-2012/#comments Mon, 13 May 2013 11:59:41 +0000 Recreation Law https://recreationlaw.wordpress.com/?p=5111 ]]> Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)

JONATHAN C. GAMZE, as Next Friend for JULIE GAMZE, a Minor, Plaintiff-Appellant, v CAMP SEA-GULL, INC. and WILLIAM P. SCHULMAN, Defendants-Appellees, and EMILY LISNER, Defendant.

No. 299433

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 1227

June 21, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 09-054822-NO.

CORE TERMS: camper, flag, flagpole, towel, capture, foreseeable, premises liability, team’s, material fact, circle, lying, pole, matter of law, genuine issues, proximate cause, proximately, counselor, favorable, causation, grabbing, owed, top, pick, order granting, negligence claim, final order, proper instructions, dangerous condition, foreseeability, depositions

JUDGES: Before: WILDER, P.J., and HOEKSTRA and BORRELLO, JJ.

OPINION

Per Curiam.

In this case, plaintiff appeals from an order granting summary disposition in favor of defendants¹ Camp Sea-Gull, Inc. (the Camp) and William Schulman, a part-owner and associate director of the Camp, on plaintiff’s claims of negligence and premises liability. Because genuine issues of material fact remain regarding plaintiff’s negligence claim, we affirm in part, reverse in part, and remand.²

1 Emily Lisner was dismissed by stipulation and is not involved in this appeal. Thus, our reference to “defendants” will refer to appellees.

2 Defendants have raised a question as to this Court’s jurisdiction over the appeal. Plaintiff filed the initial appeal of the order granting summary disposition before Lisner had been dismissed from the case. Accordingly, this Court dismissed the appeal for lack of jurisdiction. Gamze v Camp Sea-Gull, Inc, unpublished order of the Court of Appeals, entered July 13, 2010 (Docket No. 298202). We informed plaintiff, however, that he could seek to appeal the grant of summary disposition by filing a delayed application for leave under MCR 7.205(F). Defendants [*2] subsequently requested that the trial court tax their costs against plaintiff. On July 29, 2010, the trial court denied this motion except for a $20 motion fee. Plaintiff then filed the current appeal. The arguments on appeal do not concern the motion for costs but, instead, are exclusively aimed at the trial court’s decision to grant the motion for summary disposition.

When an appeal of right is dismissed for lack of jurisdiction or is not timely filed, an appellant may file an application for leave to appeal up to 12 months after entry of the final order to be appealed. MCR 7.205(F)(1) and (F)(3). Plaintiff filed this appeal on August 2, 2010, less than 12 months after May 21, 2010. Given the trial court’s notation in the orders below concerning which order was–or was not–intended as the final order in this case, we treat plaintiff’s claim of appeal as an application for leave and hereby grant it. MCR 7.205(D)(2); see also In re Morton, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).

I. BASIC FACTS

Julie Gamze and defendant Emily Lisner were both campers at the Camp in the summer of 2007. As part of a “Pirate Day” on July 15, 2007, the Camp organized a game of capture the flag on a [*3] large field divided into two halves. In the middle of each half was a circle, and in the middle of the circle was a five-foot tall flagpole³ with a colored flag on top. While the object of the game was to “capture” the opposing team’s “flag,” the “flag” to be seized was actually a piece of cloth or towel lying on the ground at the base of the flagpole. Participants were not supposed to attempt to capture the flag on top of the pole or the pole itself. Lisner testified that no one told her that the flagpole flag was not the correct flag to capture, and the counselor who explained the rules does not remember if she clarified that point. In the course of the game, Lisner grabbed the flagpole and began running with it. Gamze was running nearby, being chased by another camper, and the metal stake at the bottom end of the flagpole hit her in the mouth. She lost one tooth, and three others were broken.

3 The flagpole also had a metal tapered end or “stake” so it could be inserted and anchored into the ground.

Plaintiff filed suit against defendants, alleging negligence and premises liability. The trial court granted defendants’ motion for summary disposition and stated the following at the hearing:

I [*4] can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.

Anything that they did or failed to do was not the proximate cause of this Plaintiff’s injury. And, I don’t believe there is any material facts that are in dispute that would prevent the granting for the Motion for Summary Disposition under [MCR 2.116(C)(10)]. So that’s my ruling.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). When reviewing a motion brought under MCR 2.116(C)(10), we consider the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). A grant of summary disposition “is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 552.

III. ANALYSIS

A. NEGLIGENCE

The elements of a negligence claim are “(1) a duty [*5] owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). It is not entirely clear which element(s) the trial court found to be deficient in plaintiff’s claim. While only explicitly referencing causation, the trial court’s statement seemed to encompass three of the elements: duty (“I can’t see where this individual’s grabbing of the marker was a foreseeable event . . . .”; breach (“I can’t see where the [defendants] did anything wrong.”; and causation (“[a]nything that they did or failed to do was not the proximate cause of this Plaintiff’s injury.”). With the damages element not being disputed, we will address the remaining three elements.

The question of whether a defendant owes a plaintiff a duty of care is a question of law. Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.” In re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479 Mich 498, 505; 740 NW2d 206 (2007). “This inquiry [*6] involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” Id. (quotation marks omitted). But the most important factor is the relationship of the parties. Id.

Here, we conclude that defendants owed Gamze a duty to provide proper instructions for the game of “capture the flag.” In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole.⁴ Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.

4 This is especially foreseeable when the opposing team’s goal is to pursue and tag the flag carrier.

Once the existence of a duty toward Gamze is established, the reasonableness of the defendant’s conduct is a question [*7] of fact for the jury. Arias v Talon Development Group, Inc, 239 Mich App 265, 268; 608 NW2d 484 (2000). Thus, the next question is whether there is a genuine issue regarding whether defendants breached this duty by failing to provide the proper instructions.

In support of their motion for summary disposition, defendants provided, inter alia, the unsworn “statements” from two people who were camp counselors at the time of the accident. However, these statements do not comply with the requirements of MCR 2.116(G)(2) since they are not “affidavits, depositions, admissions, or other documentary evidence,” and consequently cannot be considered. Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich App 309, 321; 575 NW2d 324 (2009). Moreover, even if the statements were considered, they would not support granting defendants’ motion for summary disposition. The first statement was by Leah Glowacki, who was the programming counselor at the time of the incident. With regard to the instructions, she stated, “I instructed the campers to attempt to obtain the flag that was inside the circle on the opposite side of the field from where their team was stationed.” This statement does not establish [*8] that the correct instructions were given. In fact, when viewing the statement in a light most favorable to plaintiff, one could conclude that Glowacki’s instructions might possibly have been construed by at least some campers as a directive to remove the flag itself instead of the towel on the ground. The other statement was provided by Stephanie Plaine, who stated that she instructed the campers “to capture the team’s flag on the other side of the field which was located inside the circles drawn onto the grass.” Again, this statement does not specify that the instruction was to get the towel lying next to the flag.

Defendants did properly submit the depositions of six people, however. But none of the submitted testimony indicated that the campers were instructed to ignore the flagpole and only pick up the towel on the ground: Gamze could not recall what specific instructions were given; Lisner testified that she did not hear any specific instructions to take the towel on the ground instead of the pole itself; Jack Schulman and William Schulman both admitted that they did not hear the instructions that Glowacki and Plaine provided; Marsha Schulman admitted that she was not present when [*9] the instructions were given; and Plaine, herself, testified that she could not recall the specifics of the instructions that she gave. Therefore, when viewing all of this evidence in a light most favorable to plaintiff, there is a question of material fact on whether the Camp instructed the campers to only take the towel lying at the base of the flagpole instead of the flag or flagpole itself.

Finally, the trial court indicated that it found as a matter of law that defendants could not have proximately caused plaintiff’s injuries. But proximate cause is a factual question for the jury unless reasonable minds could not differ. Lockridge v Oakwood Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences. Campbell v Kovich, 273 Mich App 227, 232; 731 NW2d 112 (2006). Here, a reasonable juror could have concluded that a failure to instruct the campers properly could foreseeably result in an enthusiastic camper grabbing and removing the flagpole in order to “capture the flag” affixed to the top of it. And because the object of the game was for the camper [*10] to run the flag back to her team’s territory while other campers tried to tag her, a reasonable person could conclude that it was foreseeable that other campers might be hit and injured by the five-foot tall flagpole as it was being moved. Therefore, the trial court erred by holding as a matter of law that defendants could not have proximately caused Gamze’s injuries.

B. PREMISES LIABILITY

We now turn to plaintiff’s premises liability claim. Because Gamze was an invitee on the Camp’s premises, defendants owed a duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.’” Benton v Dart Properties, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006), quoting Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001) (emphasis added). Plaintiff must show that the duty was breached and that the breach proximately caused her injuries. Benton, 270 Mich App at 440.

However, Gamze was not harmed by a dangerous condition “on the land.” Instead, she was harmed when Lisner pulled the flagpole out of the ground and began running with it. The danger arose solely because of the actions of the participants and not because of [*11] an inherent condition of the premises. Thus, plaintiff’s claim properly sounds in negligence, not premises liability.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs are taxable pursuant to MCR 7.219, neither party having prevailed in full.

/s/ Kurtis T. Wilder

/s/ Joel P. Hoekstra

/s/ Stephen L. Borrello

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(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:

(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;

(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;

(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.

(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;

(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and

(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.

(2) As used in this section, unless the context otherwise requires:

(a) “Child” means a person under eighteen years of age.

(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.

(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.

(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

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Several years agoWest Virginia University quit selling beer in its football stadium. However, they allowed fans to tailgate at the stadium and leave the stadium during halftime. Consequently, fans would get loaded before the game to have their buzz last till halftime where they would leave the stadium to get buzzed again for the last half of the game. On top of that, sneaking alcohol into the stadium was a bigger game than what was being played on the field. What did the policy create? Problems and challenges.

Oliver Luck is athletic director. At football games at WVU, he started to notice a few familiar sights — the unbelievable, sheer athleticism, the marching bands… and the freshmen barfing all over the stadium.

“People drinking far too much at pre-game parties and tailgate parties before games. Sneaking alcohol into games. Leaving at halftime to drink even more and come back into the game,” said Luck.

WVU like most colleges prohibited alcohol and the sale of alcohol in its stadium. WVU realized that abstinence does not work!

So WVU started selling beer in the stadium. Contrary to popular belief, chaos did not run amuck at WVU football games.

“In 2010, we made 117 arrests on game days. In this past year, we only made 79. See, that’s almost a 35 percent reduction in arrests we made,” said Bob Roberts, West Virginia University police chief.

West Virginia made about $500,000 the sale of beer the first year. More money and less problems. (Sounds like a beer ad.) Believe me, no matter what the fines of the 35% of lost arrests, it would never make up the half million the university made.

You cannot stop people from doing what they want to do. We have millions incarcerated in prisons to prove that point. What we can do is make money on it and help those who want to do it to understand it and maybe exercise a little control over it.

More importantly instead of telling people how to live, let’s work with people to figure out the best way to solve everyone’s problems. As Stephen R. Covey said in “The Seven Habits of Highly Effective People,” make it a “Win Win.”

See Can selling beer help college fans drink less?

What do you think? Leave a comment.

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Cyclists deserved it to.

This is a lawsuit over an injury a cyclist received when he crashed in New York City. He crashed because an eighteen year old summer enrichment program counselor shoved him over with her “Stop Children Crossing” sign when he failed to stop at a light.

A summer enrichment program is a day camp for kids when parents have to work. The kids are taken on tours, programs, exercise and many involve a lot of outdoor recreation. In this case, the kids with two counselors were walking to a swimming pool. The program was run by the defendant Oasis Children’s Services.

While crossing a street only half the students made it across the street before the light changed. The defendant counselor kept her students back until the light changed again. She then proceeded out to the middle of traffic and held up a sign which said Stop Children Crossing. As the students started to cross she noticed a group of cyclists coming towards the crosswalk. All but one of the cyclists stopped. The one who did not stop was the defendant.

As per the protocol of the program, the counselor was supposed to yell at cyclists who look like they are not going to stop. If the cyclists do not stop a counselor it to put their body between the bicycle and the kids. (That is asking a lot of an 18-year-old kid!)

The light was red; the cyclist was not stopping so the counselor put her body between the kids and the cyclists. The cyclists still did not stop. The counselor waived her sign and yelled at the cyclists. At the last moment, she jumped out of the way, and she pushed the cyclists arm with her sign.

He crashed!

The cyclists sued for negligence that he crashed because a girl pushed him with a sign. The defendants raised the defense of the Sudden Emergency Doctrine.

Summary of the case

The sudden emergency doctrine has many different names and variations across the US. You should check your state to determine if it is available as a defense how the defense is defined. Do not rely on the sudden emergency doctrine to save you, it rarely does.

In New York, the Sudden Emergency Doctrine is defined as:

A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. The actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”.

Basically, it says you can be negligent for the greater good. If your negligence is less than the damage or problem that not being negligent will create, then the Sudden Emergency Doctrine provides you a defense to a negligence claim.

In this case, the court found the actions of the defendant counselor in pushing the cyclists saved the children. “The evidence is credible that Marte [Defendant] pushed Pavane [Plaintiff] from his bicycle in order to prevent children from getting injured.”

Application of the Sudden Emergency Doctrine is a balancing test to some extent. The harm created by the negligent act is less than the harm that would have occurred if the defendant had not acted. 99% of the time only a jury will make the decision, whether your actions where worth it.

As a further little hit, the court held “It is the finding of this Court that Mr. Pavane’s own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident.”

So Now What?

The sad thing is the program had so much experience with cyclist’s running lights; they had developed a program to deal with it.

Cyclists of New York, you should be embarrassed!

The classic case of where the Sudden Emergency Doctrine would work is portrayed in “Touching the Void” by Joe Simpson.

Do not rely on the sudden emergency doctrine as a defense in your program or activity.

Plaintiff: Martin Pavane and Merrill Pavane

Defendant: Samidra Marte, Oasis Community Corporation and Oasis Children’s Services

Plaintiff Claims: Negligence

Defendant Defenses: Sudden Emergency Doctrine

Holding: For the Defendant

What do you think? Leave a comment.

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WordPress Tags: Pavane,Marte,Misc,LEXIS,Slip,Martin,Merrill,Plaintiff,Samidra,Oasis,Corporation,Children,Services,Defendant,SUPREME,COURT,YORK,KINGS,August,NOTICE,OPINION,OFFICIAL,REPORTS,TERMS,judgment,bicycle,street,counselor,doctrine,fact,situation,deliberation,HEADNOTES,Negligence,Emergency,JUDGES,Bernard,Graham,Justice,Decision,lawsuit,complaint,December,plaintiffs,defendants,Samira,action,Central,Park,CPLR,dismissal,Background,enrichment,area,locations,Rachel,Carrion,campers,West,Drive,testimony,sidewalk,guidelines,Richard,Thompson,McKay,supervisor,protocol,counselors,Rodney,Gould,person,path,moment,Discussion,opposition,knowledge,existence,Bello,Transit,Auth,Dept,Here,descriptions,actor,circumstance,context,Caristo,Rivera,Marks,Robb,response,jury,Koenig,Vitale,Levine,determination,Although,Rotuba,Extruders,Ceppos,Sillman,Twentieth,Century,Film,Corp,assertions,example,Leon,Sager,woman,teens,Branham,Loews,Orpheum,Cinemas,conclusion,tort,consequences,intersection,injury,Where,accident,Goff,Goudreau,failure,incident,CountyBottom,Form,crosswalk,triable,cyclist,pursuant,whether

Martin Pavane and Merrill Pavane, Plaintiff(s), against Samidra Marte, Oasis Community Corporation and Oasis Children’s Services, Defendant(s).

33473/08

SUPREME COURT OF NEW YORK, KINGS COUNTY

37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U

August 9, 2012, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: summary judgment, bicycle, street, crossing, counselor, emergency, crosswalk, walk, emergency doctrine, triable issues of fact, stop sign, deposition, cyclist, annexed, proximate cause, red light, matter of law, emergency situation, party opposing, affirmative defense, traffic light, reasonableness, deliberation, speculative, unexpected, proceeded, favorable, surprise, sudden, pushed

HEADNOTES

[*1216A] Negligence–Emergency Doctrine.

JUDGES: [**1] Hon. Bernard J. Graham, Acting Justice.

OPINION BY: Bernard J. Graham

OPINION

Bernard J. Graham, J.

Decision:

The captioned lawsuit was commenced by filing of a summons and complaint on or about December 8, 2008, by plaintiffs, Martin Pavane and Merrill Pavane, against defendants Samira Marte (incorrectly identified as “Samidra Marte”), Oasis Community Corporation, and Oasis Children’s Services, LLC. Plaintiffs’ claim is a negligence action against defendants stemming from a fall at Central Park and a derivative claim on behalf of plaintiff, Merrill Pavane.

Defendants move for summary judgment pursuant to CPLR § 3212 for dismissal of the plaintiffs’ complaint alleging that there are no triable issues of fact and that defendants are free from liability pursuant to the Emergency Doctrine’.

Background

Defendant Oasis Children’s Services, LLC (“Oasis”) is a company that runs summer enrichment programs for at-risk children in the tri-state area. They have several camp locations in New York City, including one in Central Park.

Defendant Oasis Community Corporation is a named defendant which is ostensibly related to Oasis Children’s Services, LLC.

During the summer of 2008, Oasis hired 18-year-old defendant Samira Marte [**2] (“Marte”) as a camp counselor. On August 22, 2008, Marte and another counselor, Rachel Carrion (“Carrion”), entered Central Park at 96th Street with their campers to reach a swimming pool at 110th Street. Their route required them to cross West Drive.

According to the deposition testimony of Ms. Marte, Rachel Carrion and several children crossed West Drive first. The walk signal changed to “do not walk” before Ms. Marte was able to cross with the rest of the group, so she stayed on the sidewalk with the children to wait for the light to change again. When the signal changed to “walk”, Ms. Marte followed camp guidelines and proceeded to the middle of the crosswalk to hold up her “stop/children crossing” sign. According to the deposition of Richard Thompson McKay, who is an Oasis supervisor and not a named party to the action, Oasis provided protocol training for all camp counselors on how to cross the street. Counselors are instructed to stand in the middle of the street with the stop sign before children may begin to pass. Counselors were also told that if it appears that a cyclist will not stop, then the counselors must first be “loud and verbal” and ask the cyclist to stop. If the [**3] cyclist still does not stop, then counselors must “put [their] body as best as [they] can in between bicyclist and the children that [they] have to protect.” (See Dep. of Richard Thompson McKay, pg. 11-12, annexed as Ex. “H” to the Aff. of Rodney E. Gould in support of motion for summary judgment).

Ms. Marte states that several bicyclists were traveling down West Drive and that all of them stopped for the red light except for “one person that kept going.” (See Dep. of Samira Marte, pg. 60-61, 73-74, annexed as Ex. “F” to the Aff. of Rodney E. Gould in support of motion for summary judgment). Ms. Marte observed the defendant, Martin Pavane (“Pavane”), approaching the red light on his bicycle and alleges that Mr. Pavane did not slow down. Since children were beginning to cross the street, Ms. Marte anticipated that the bicycle would collide with the crossing children and herself. In order to get Mr. Pavane to stop, Ms. Marte first waived her stop sign and yelled for him to stop. When the bicycle still did not stop or slow down, she tried to put herself in between the bicycle and the children by standing in front of the bicycle’s [***2] path. However, Ms. Marte was forced to move aside because [**4] she states that the bicycle was going too fast. She was afraid that the bicycle would run right into her and the children. Ms. Marte states that was the moment she decided to push Mr. Pavane’s arm with the stop sign (Marte Dep. pg. 74-77).

Discussion

In opposition to the defendants’ motion for summary judgment, plaintiffs argue that the defendants failed to include the Emergency Doctrine’ as an affirmative defense in their answer.

However, where the party opposing summary judgment has knowledge of the facts relating to the existence of an emergency and would not be taken by surprise with the use of the emergency defense, the doctrine does not have to be pleaded as an affirmative defense (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 61, 783 N.Y.S.2d 648 (2nd Dept. 2004)). Here, plaintiffs cannot claim that they were taken by surprise by defendants’ emergency defense. The depositions provide full descriptions of facts describing an emergency situation.

A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so [**5] disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. [The] actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”. (Caristo v. Sanzone, 96 NY2d 172, 174, 750 N.E.2d 36, 726 N.Y.S.2d 334 (2001) (citing Rivera v. New York City Tr. Auth., 77 NY2d 322, 327, 569 N.E.2d 432, 567 N.Y.S.2d 629 (1991); see also Marks v. Robb, 90 AD3d 863, 935 N.Y.S.2d 593 (2nd Dept. 2011)). The depositions show that Marte was confronted with a sudden and unexpected emergency circumstance that left her with little time for deliberation. The evidence is credible that Marte pushed Pavane from his bicycle in order to prevent children from getting injured.

Ordinarily, the reasonableness of a party’s response to an emergency situation will present questions of fact for a jury, but it may be determined as a matter of law in appropriate circumstances (Bello v. Transit Auth. of NY City, 12 AD3d at 60; see also Koenig v. Lee, 53 AD3d 567, 862 N.Y.S.2d 373 (2nd Dept. 2008); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).

In this case, defendants seek an award of summary judgment dismissing the plaintiffs’ claim which would require a determination by this Court that, as a matter of law, the actions taken by Ms. Marte were reasonable [**6] and did not present a question which should be presented to a jury. Although summary judgment is a drastic remedy, a court may grant summary judgment when the moving party establishes that there are no triable issues of material fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957)).

Rachel Carrion, the co-counselor who is not a named party to the action, testified that she saw Pavane ride his bicycle towards the crosswalk where herself and Marte were crossing the street with children from the Oasis summer camp (see Carrion Dep. pg. 8-9 annexed to Gould [***3] Aff. in support of motion for summary judgment). Carrion testified that Pavane was approaching them “at [a] speed” and “would not stop” (Carrion Dep. pg. 10). The testimony of Ms. Carrion is completely consistent and corroborative of Ms. Marte’s testimony. Ms. Marte stated that Mr. Pavane was not going to stop and was about to hit the four children who were crossing in the crosswalk (Marte Dep. pg 61).

The majority of Pavane’s testimony consists of mere speculative and conclusory assertions because he claims to not recall most details. For example, Pavane did not recall [**7] whether he saw children on the street (see Pavane Dep. pg. 17, annexed to the Aff of Leon Sager in opposition to the motion for summary judgment), but states that “it’s certainly possible there were people there.” (Pavane Dep. pg. 17). Carrion testified that there definitely were children on both sides of the crosswalk and some crossing in the middle before Marte pushed Pavane off his bicycle (Carrion Dep. pg. 11). Pavane also does not recall whether Marte was holding a “stop, children crossing” sign or whether she was waving at him, but he does remember Marte being a young woman in her teens (Pavane Dep. Pg. 17), who was “doing something with her hands at the particular time when she stepped in front of [him]” (Pavane Dep. pg. 18).

In reviewing the offered testimony in support of the motion and the opposition to the motion, the evidence submitted must be viewed in the light most favorable to the party opposing the motion (see Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 866 N.E.2d 448, 834 N.Y.S.2d 503 (2007)). Even assessing the available evidence in a light most favorable to Mr. Pavane, a neutral reading of the evidence would support a conclusion that Ms. Marte and the children were crossing the street with [**8] the “walk” sign in their favor; that Ms. Marte was positioned with her stop sign at the cross walk; and that Mr. Pavane was cycling into the crosswalk against the traffic light.

While this Court is hesitant to declare the actions of any party in an alleged tort claim to be reasonable as a matter of law, in certain cases, such as this, summary judgment may be appropriate. (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 783 N.Y.S.2d 648 (2004). The actions of the defendant, Marte, must be considered reasonable given the emergency she faced and the potentially harmful consequences to the children she was protecting. It is also apparent that Mr. Pavane proceeded into the intersection against the traffic light and, would fairly be considered to be the proximate cause of his injury. Where it is clear that the plaintiff’s actions were the sole proximate cause of the accident, plaintiff’s mere speculative assertions that defendant may have failed to act properly is insufficient to raise a triable issue of fact to defeat a summary judgment motion. (see Goff v. Goudreau, 222 AD2d 650, 650, 635 N.Y.S.2d 699 (2nd Dept. 1995); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).

Conclusion

It is the finding of this Court that Mr. Pavane’s [**9] own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident. The actions of the camp counselor, Ms. Marte, in the context of crossing the street with young children who she feared would be injured by the cyclist can only be considered reasonable and appropriate in the given circumstances. Mr. Pavane has not offered evidence which would raise a triable issue of fact as to the reasonableness of Ms. Marte’s actions and to subject the defendants here to the expenses of a trial on this matter would be exceedingly unjust.

Accordingly, defendants’ motion for summary judgment is granted and the plaintiff’s complaint is dismissed.

This shall constitute the decision and order of this Court.

Dated: August 9, 2012

/s/

Hon. Bernard J. Graham, Acting Justice

Supreme Court, Kings CountyBottom of Form

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Check Out New Smart MVUM Maps for    Colorado National Forests!

Stay the Trail Colorado provides a central webpage where the public, organizations and agencies can download all US Forest Service Motor Vehicle Use Maps (MVUM) for National Forests and Grasslands located in Colorado. These maps are kept up to date as the US Forest Service updates their maps. Funding for this effort is provided by Colorado Parks and Wildlife in the form of grant funding that comes from registration of OHVs in Colorado. Stay the Trail and Great Outdoors Consultants have made the MVUMs “smarter” by making sure they all have geospatial information (the map knows where it’s located in the World) and by providing them in multiple formats. Smart MVUMs are provided in the following formats.

Geospatial PDF Files

Some National Forests are publishing PDF versions of MVUMs that are already geospatial which means that you can see map coordinates in Acrobat Reader using the geospatial location tool (found in the analysis toolbar/ menu). These maps can also be imported into some mapping programs such as Global Mapper. MVUMs that did not have geospatial information were processed to add geospatial information using Global Mapper software. All PDF MVUMs were exported in the following coordinate system: UTM – Zone 13 North – NAD1983 – meters

http://www.avenza.com/pdf-maps

Geospatial PDFs can also be used on Apple and Android smart phones/tablets using Avenza’s free application call PDF Maps. After the PDF MVUM is downloaded on the mobile device, cellular coverage is not needed to use it. This application shows the current GPS location of the user on the map and allows them to perform some basic GPS recording tasks! The application allows you to show the location of geotagged photos you’ve taken with your mobile device right on the MVUM map. PDF Maps has an online map store that allows users of the app to find MVUMs by name or their current location! This app is being used to distribute free maps for the National Park Service, USGS Topo maps and other free maps. The store also allows for sale of commercial maps such as National Geographic maps. All MVUMs found on the Stay the Trail webpage are now also available through the Avenza map store for free!

1.    Go to “App Store”, search for “PDF Maps” and install

2.     Open “PDF Maps”, select “Store” function from the lower bar

3.     Select the search function in top right corner.

4.     Search for “Stay The Trail” or “MVUM” or a Ranger District, select from the pins that appear

5.     Use the “Free” button to download to the phone.

6.     Downloaded maps show up in the “Maps” list on the lower left

7.     Select appropriate map for the district’s trails you will be using. Your location appears using GPS sensor.

Note: The android version of the PDF Maps app is a beta version and is not currently linked to the Avenza map store. Maps can be loaded in the Android version by linking to the Stay the Trail webpage MVUMs, by emailing the PDF file or a link to it.

Weblinks:

http://staythetrail.org/mvum/index.php – All Colorado PDF MVUMs on one webpage
http://www.avenza.com/pdf-maps – information about the application
http://www.pdf-maps.com/get-maps – search for Colorado MVUMs on your computer – preview only

Google Earth Files

Geospatial PDF MVUM files were rasterized in Global Mapper software and then clipped to the map frame (excluded the legend). The rasterized MVUM files were then exported to Google Earth .kmz files. These files can be loaded into Google Earth desktop and mobile applications. To load a .kmz file on your mobile device, email yourself the appropriate .kmz file or a link to the .kmz file on the Stay the Trail webpage. Google Earth mobile will show your current location on the MVUMs. MVUMs in this format allow the user to load adjacent MVUMs and look at them in 3D. Google Earth also allows the user to add other vector data on top of the MVUM such as trails or other data they have. A brief description of the MVUM file and a link to the Stay the Trail webpage are included in the .kmz files so the user can access the legend and other information that has been removed from the .kmz version of the MVUMs. All Google Earth MVUMs were exported in the following coordinate system: Latitude-Longitude – WGS84 – decimal degrees.

Weblink:

http://www.staythetrail.org/mvum/kmz/ – All Colorado Google Earth MVUMs on one webpage

Geotiff Files

Geospatial PDF MVUM files were rasterized in Global Mapper software and then clipped to the map frame (excluded the legend). The rasterized MVUM files were then exported to geotiff (.tif) files. Geotiffs are raster files that include geospatial information. These files can be loaded into Arcmap, Global Mapper, Terrasync, Arcpad and other GIS/GPS programs. They can also be loaded into Avenza PDF Maps mobile application! MVUMs in this format allow the user to load adjacent MVUMs and look at them side-by-side. GIS programs allow the user to add other vector data on top of the MVUM such as trails or other data. A brief description of the MVUM file and a link to the Stay the Trail webpage are included as text files so the user can access the legend and other information that has been removed from the .tif version of the MVUMs. All geotiff MVUMs were exported in the following coordinate system: UTM – Zone 13 North – NAD1983 – meters.

Weblink:

http://www.staythetrail.org/mvum/geotiff/ – All Colorado Geotiff MVUMs on one webpage

Check these and to make sure you know where you are and where you should not be when off road in Colorado.

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

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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         #Authorrank

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If you are getting ready for your summer recreation business it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.

Not all of these clauses mentioned in the checklist may be needed.  However, some of them are critical and they may all be modified based on your activity, program, employees, and ability to undertake the risks.

I’ve divided this checklist into three major parts:

·         Required for your Release to be Valid: What is absolutely required

·         Needed: What you should have for your release to be valid in most states

·         What Your Release Cannot Have: What you should never have in your document

There are some subsections also that are fairly self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.

Required for your Release to be Valid

     Contract: The legal requirements for a contract are met if the release is signed

     Updated Recently: Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release?

    Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document?

     Parties: You have to identify who is to be protected by the release and who the release applies too.

     Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against.

     Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk

     Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence?

     Plain Language: Is the release written so that it can be understood? Is it written in plain English?

     Venue: Does your release have a Venue Clause?

     Jurisdiction: Does your release have a Jurisdiction Clause?

     Signatures: Does your release have a place for the signor to date and sign the release

     Nothing in your marketing program invalidates your release.

     Information to complete the continuing duty to inform

Items that may be Needed Dependent upon the Purpose of the Release

  Parental Release

  Product Liability Language

  Release of Confidential Medical Information

  Signor has viewed the Website

  Signor has viewed the Videos

  Signor has read the information

  Signor has conveyed the necessary information to minor child

  Reference to required Statute

     Demo Language

Needed

  Notice of Legal Document:

        Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?

     Opening/Introduction: Does your release have an opening or introduction explaining its purpose

 Assumption of Risk Language

              Minor Injuries Noticed

              Major Injuries Noticed

              Death

              Mental Trauma

     Risks Not Associated with Activity

              Required Statutory Notice

              List Not Exclusive/ Exhaustive

     Agreement to Assume Risks

              Capable of Assuming Risks

     Lost Personal Property

     Drug & Alcohol Statement

     Company Right to Eject/Refuse

     Good Physical Condition

              Able to Undertake

              Good Mental Condition

     Magic Word: Negligence

              All Magic Words

     Protects Against

              Lost Money

              Lost Time

              Loss of Life

              Medical Bills

              Injuries

     Indemnification Clause

              Parent/Child

              Spouse/Spouse

              SAR

              Medical Evacuation

     Parties

              Legal Entity

              Employees

              Officers/Directors

              Agents

              Volunteers

              Other Participants

              Other Parties

     Participant Parties

              Participant

              Participant Spouse

              Participant Children

              Participant Heirs

     Plain Language

     Alternative Resolution

              Arbitration

              Mediation

     Venue

              In the US

              Out of the US

     Jurisdiction

     Indemnification

              Third party costs

              First party costs

     Severance Clause

     How Release is to be interpreted

     Liquidated Damages

              Breach of Covenant of Good Faith

     Misc. Clauses

              Severance Clause

              Enforceability post Trip

              Copy as good as original

              Photo Release

     Adequate Insurance

     Medical Release

              Medical Transportation

              Permission to release medical information

              Waiver of medical confidentiality

              Waiver of HIV status

     Statement as to Insurance

     Incidental issues covered

     Previous Experience

     Medical Condition

     Read and Understood

     Signatures

              Participant Signature

              Both Parent Signatures

              Child Signature

     Medical Insurance information

     Overall Review

     Plain Language:         Readability Level ________

     Adequate Typeface: Typeface Size _________

     Readable

     Release language in Plain English

     Agreement that the document has been read

     Agreement that the signor agrees to the terms

What Your Release Cannot Have

     Places to Initial

     Small Print

     No heading or indication of the legal nature

     No indication or notice of the rights the signor is giving up

     Release Hidden within another document

     Important sections with no heading or not bolded

     Multiple pages that are not associated with each other

Miscellaneous Clauses your Release may Need

     Electronic Signature Clause

     Rental Agreement Clause

     Alternative Resolution

              Arbitration

              Mediation

     Demo Language

              Understand use of Equipment

              Accept Equipment As Is

              Agree to ask questions about Equipment

              Understand Demo Equipment has more Risk

     Rental Language

More articles about releases.

Release/Waivers: The basics, the very basics!                                                  http://rec-law.us/AaqwqH

Releases 101                                                                                                           http://rec-law.us/xGL0I3

States that allow a parent to sign away a minor’s right to sue                         http://rec-law.us/z5kFan

States that do not Support the Use of a Release                                               http://rec-law.us/zHGQsZ

What is a Release?                                                                                                 http://rec-law.us/xMECTc

I found a release on the internet. It will work right!                                            http://rec-law.us/14w6qeh

If you are interested in a Professional Review of your Release please let me know.

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Release, Waiver, Covenant not to sue, Exculpatory clause, Exculpatory Agreement, Contract,

WordPress Tags: RELEASE,Waiver,CHECKLIST,recreation,paperwork,paper,clauses,employees,Valid,subsections,self,Contract,requirements,attorney,Notice,Legal,Document,Does,person,Parties,Assumption,Risk,Language,litigation,Agreement,Assume,Risks,Magic,Word,Negligence,Plain,English,Venue,Clause,Jurisdiction,Signatures,Information,Items,Dependent,Purpose,Parental,Product,Confidential,Medical,Signor,Website,Videos,Reference,Statute,Demo,Consequence,consequences,Introduction,Minor,Injuries,Major,Death,Mental,Trauma,Statutory,List,Exclusive,Exhaustive,Capable,Lost,Personal,Drug,Alcohol,Statement,Company,Eject,Refuse,Physical,Condition,Able,Undertake,Words,Protects,Against,Money,Time,Loss,Life,Bills,Indemnification,Parent,Child,Spouse,Evacuation,Officers,Directors,Agents,Volunteers,Participants,Participant,Children,Heirs,Alternative,Resolution,Arbitration,Mediation,Third,Severance,Damages,Breach,Covenant,Faith,Misc,Trip,Copy,Photo,Adequate,Insurance,Transportation,Permission,status,Incidental,Previous,Experience,Read,Understood,Signature,Both,Overall,Review,Level,________,Typeface,Size,_________,Readable,Places,Initial,Small,Print,indication,Hidden,Important,Multiple,Miscellaneous,Electronic,Rental,Understand,Equipment,Accept,Agree,Waivers,basics,AaqwqH,Releases,States,Support,Professional,Leave,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Exculpatory,upon

Filed under: Assumption of the Risk, Release / Waivers Tagged: Assumption of risk, Checklist, Contract, Covenant not to sue, Document Management, Exculpatory Agreement, Exculpatory clause, Insurance, Law, Practice Management, Products, Release, Waiver ]]> http://recreation-law.com/2013/05/01/release-waiver-checklist/feed/ 0 jhmoss http://recreation-law.com/2013/04/30/getoutdoorscolorado-org/ http://recreation-law.com/2013/04/30/getoutdoorscolorado-org/#comments Tue, 30 Apr 2013 12:00:03 +0000 Recreation Law http://recreation-law.com/?p=5053 ]]> NEWS RELEASE

SPRING INTO THE OUTDOORS WITH GetOutdoorsColorado.org

Have you ever wanted to go for a hike, a bike ride, or try a new outdoor activity, but you weren’t sure where to go? In celebration of Earth Day, the Colorado Parks & Recreation Association and Get Outdoors Colorado are launched a new website called GetOutdoorsColorado.org to give people thousands of opportunities to explore and experience Colorado.

The new website is an online springboard to all activities and events outdoors in Colorado. GetOutdoorsColorado.org is free for organizations that provide outdoor events and experiences to post and share activities and programs. The website is free for the public to search activities and to create a customized membership for outdoor interests.

GetOutdoorsColorado.org is a Colorado-specific launch pad for people looking for new recreation, educational and stewardship opportunities. Activities and programs can be queried by

14er Yoga Gurus (Photo credit: Zach Dischner)

activity type, geographic location, date or organization. Members can post photos and videos of their adventures and even receive email reminders of activities. The website also offers a children’s resource section that features games, trail maps, outdoor myths and outdoor facts.

The interactive website is an outcome of a years’ worth of collaboration between US Forest Service, Colorado Parks and Wildlife, GP Red, Colorado Alliance for Environmental Education, Colorado Kids Outdoors, The Denver Botanic Gardens, The Colorado Parks and Recreation Association and many others. GetOutdoorsColorado.org has more than 80 partners posting activities in 25 different categories throughout 20 counties across the state. The website is also fully integrated on social media platforms to allow for greater connectivity statewide.

“The website is a great resource. It helps us showcase our events and programs to the public in a collaborative and accessible way, in addition to connecting us to a diverse partner network,” said Karl Brummert, Executive Director of the Audubon Society of Greater Denver.

Get Outdoors Colorado is made up of various federal, state and local agencies, nonprofits and for-profit companies that are dedicated to connecting children and families to nature and healthy, active, outdoor lifestyles.

“GetOutDoorsColorado.org is a unique resource for people searching for recreation opportunities across Colorado. With a wide range of partners including parks and recreation agencies, nonprofits as well as tourism organizations, there is an activity for everyone. The website has the ability to search for an activity by type and date in any area of Colorado and allows people anywhere in the state to find something close to home or close to where they are vacationing. It truly is a great way to find your next outdoor adventure,” said Cathy Metz, President of the Colorado Parks and Recreation Association and Director of Parks and Recreation for the City of Durango.

Log on and create an account during the week of April 22 to personalize your GetOutdoorsColorado.org experience and spring into the outdoors this Earth Day!

Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.

In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.

The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.

The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.

Summary of the case

The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.

The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.

34-31-5-3.  Warning notices required.

(a)        This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.

(b)        A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.

(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.

The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.

The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one  thing’s horses do is kick; number two is bite and number three throw  you off; This from a person who has been kicked, bitten and thrown off horses.)

The court found the plaintiff was injured by an inherent risk of hanging around horses.

The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.

So Now What?

The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.

Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.

The second issue is always having extra statutorily required warning signs, posting them wherever  there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.

Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.

Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.

Plaintiff: Teresa Perry

Defendant: Whitley County 4-H Clubs Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Indiana Equine Liability Statute

Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.

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