Advertisements

California decision imposes three specific requirements for a release to be valid. On requirement is a release must be understood by a person untrained in the law.

Lawsuit filed by family of deceased runner who died of cardiac arrest after crossing the finish line of a race. Release and assumption of the risk blocked all claims except the claim for gross negligence.

Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710

State: California, Court of Appeal of California, First Appellate District, Division Four

Plaintiff: Eden Gonzalez Hass et al

Defendant: Rhodyco Productions

Plaintiff Claims: negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed, trained, supervised and controlled emergency and medical resources.

Defendant Defenses: Release and Primary Assumption of the Risk

Holding: Split decision, however case to continue on issue of gross negligence

Year: 2018

Summary

This California Appellate decision added some new requirements for releases to be valid in California. Two of those new requirements stem from the requirements of the California wrongful death statute. The other two are simple.

Under California law, inherent is a limiting word when it is used to describe the risks in a release, and a release must be understandable by a non-lawyer.

Facts

The deceased, Peter Hass, crossed the finish line of the 2011 Kaiser Permanente San Francisco Half Marathon, suffered a cardiac arrest, collapsed and died. His wife and his two children, referred to as the Hess Family in the opinion, sued the event organizer for negligence.

Before entering the race, the deceased signed a release online.

Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” based on injuries he might suffer “at or enroute to and from this event

The race organizer had been putting on events for twenty-five year. This even had approval from the city which approval required providing an emergency management plan. The plan stated that a medical team and ambulance would be at the finish line and stationed on the course. The medical team the family argued was inadequate.

Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances.

The Hess family sued. Initially, the trial court granted the defendant RhodyCo’s motion for summary judgment based on the release and assumption of the risk. The family objected and argued in a hearing they should have the right to amend their complaint and bring additional claims. After the hearing, the trial court agreed and granted the Hess family’s motion for a new trial.

Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.

The defendant RhodyCo filed a notice of appeal, and the Hess family filed a notice of cross appeal bringing the matter to the California Court of Appeals, which issued the opinion here.

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

The appellate court first looked at the wrongful-death claim of the plaintiff Hess family. Under California law, a wrongful-death claim is not a derivative claim. Meaning the claim does not arise from a superior claim of the plaintiff. It is a claim, in and of itself, and not a claim of the deceased by a claim of the deceased’s family.

In other words, although a decedent cannot release or waive a subsequent wrongful-death claim by the decedent’s heirs, that decedents “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful-death action.

Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.

The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'” “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a subsequent wrongful death cause of action

For a release to block a wrongful-death claim, the language in the release, not the law of releases. Looking at the entire document, is it clear the parties expressed the intent to assume the risk, thus blocking the wrongful-death claim.

Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.

…in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.

The plaintiff Hess family argued the assumption of the risk language was insufficient to make that claim because the release used the term “inherent” to describe the risks. As such the risks that killed the deceased were not covered in the release.

The Hass Family, however, argues that the Release executed by Hass in this case is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks.

Again, the release used terms that limited the scope of the risks the deceased was to assume, which limited the breath of the release.

Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.

The court found that the language in other parts of the release were broad enough to cover the risks the deceased undertook and thus assumed.

Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence.

California also has a requirement that the “release should be understood as speaking to an ordinary person untrained in the law.” This requirement was argued stated twice in the decision.

A release under California law must be written so that an ordinary person untrained in the law can understand it.

The Hess family then argued the release was void because it violated public policy. The Hess Family claimed the defendants were negligent in providing the medical care that responded, and medical care is a necessity and as such should not be protected by a release.

The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”

California Civil code § 1668 does not allow a release to be sued to stop a claim if the service or the nature of the contract is based on public policy.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

There is a six-part test to determine if the agreement is one affecting the public interest. Not all six of the requirements must be met.

“‘[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'”

However, courts in California have declined to find releases used for recreational activities as violating the statute and thus being void because of the public interest argument.

Most recreational activities may require first aid or greater medical services. However, people do not engage in the sport or activity because of the first aid or medical issues. The first aid and medical issues are ancillary to the activity and as such not the main purpose for the activity or the release.

Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way.

The next issue was the issues of pleading the claim for gross negligence. California like most, if not all, other states do not allow a release to stop a gross negligence claim. If the Hess family is able to argue to the trier of fact that the actions of the defendant, RhodyCo rose to the level of gross negligence the release is not a defense.

Under California law, gross negligence is a want of even scant care.

…”‘[g]ross negligence’ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘[G]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'”

Normally, to appeal an issue or even argue an issue at the trial court level, you must first include the claim in your complaint or amend your complaint to bring a new issue in. The Hass family did not include any claim in their complaint for gross negligence.

However, the court found that there was no need in California to specifically plead gross negligence as it was part of negligence, sort of. The court never specifically stated why it was reviewing the gross negligence claim, only that other courts had found that it was not necessary to specifically plead gross negligence.

The court then found the plaintiff’s complaint, and arguments had raised enough issues that the plaintiffs might have a claim for gross negligence.

In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context.

Primary assumption of the risk was the final issue reviewed by the court. Primary assumption of the risk is a complete bar to negligence claims, including gross negligence claims because it removes any duty on the part of the defendant to the plaintiff. Meaning, the defendant cannot be negligent because they have not duty to the plaintiff.

Specifically, our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.”

When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.”

Primary assumption of risk arose out of sports and recreational activities so that the activities could be played with the intensity and vigor so that the reason, and sport of the game was not lost.

The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”

The issue then becomes what duty is owed by the defendant to the plaintiff that was not assumed by the plaintiff to the extent that it was then breached by the defendant.

Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family.

The court then stated that the organizer of the even does not have a duty to decrease the risk of any activity or event. However, there is a duty to minimize extrinsic risks.

While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.

The court reasoned this was a necessary departure from the encompassing defense provided by assumption of the risk to keep owners and organizers from avoiding “accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it.”

The court did not point out specific facts or risks that created the issue that the defendant RhodyCo had been grossly negligent.

The case was sent back to trial on the sole issue on whether or not the actions of the defendant were grossly negligent.

So Now What?

At the end of the decision, the court awarded costs to the Hess family. Costs on appeal are awarded to the winner of the appeal, in terms of overall and in terms of the number of claims. The defendant won all but one of the issues on appeal in this case. The only claim the defendant did not win was the plaintiffs did not plead gross negligence in their complaint, so they cannot argue it now.

Yet the court still awarded costs to the plaintiffs. It is only a guess, but does this indicate leaning in favor of the plaintiff’s in this case?

There are three specific takeaways from this decision affecting the law of California and releases.

1.    Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.

2.    Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.

3.    Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.

4.    A release under California law must be written so that an ordinary person untrained in the law can understand it.

The final issue to come out of this decision a new back door to defeating the primary assumption of the risk claim. Now if the risk is not enumerated in the release, the plaintiff is going to argue it is extrinsic and therefore, not covered by the doctrine of primary assumption of the risk to defeat the defense.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

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

Advertisements

Natural Resource Careers Summit – Help Shape Tools for Youth Career Development

Are you a career influencer? Do you support youth in exploring natural resource or environmental careers through environmental education programming? If so, please join the Colorado Alliance for Environmental Education (CAEE) and Colorado Youth Corps Assocation (CYCA) at the 2018 Careers in Natural Resources Initiative Summit!

WHEN: Tuesday, September 25th from 9:30 a.m. – 1:00 p.m.

WHERE: Colorado Parks & Wildlife – Hunter Education Building, 6060 Broadway, Denver

REGISTER HERE

A major focus of the Summit will be to discuss and begin to move forward on several exciting new projects including:

  • Development of a High School Natural Resource Careers Awareness Resource
  • Assembling an Advisory Committee to provide guidance on the development of the High School Awareness Resource
  • Distribution and use of the brand new Spanish translated version of the “How-To Guide for Pursuing a Career in Natural Resources”

Who should attend?

· Government agencies, non-profits and businesses interested in building pathways for youth to enter the natural resource field and in increasing the diversity of applicants for natural resource positions.

· K-12 and higher education institutions interested in connecting their students to natural resource career information.

· Environmental education providers, youth corps, and other youth-serving organizations interested in how they can incorporate natural resource career messaging into their programming and serve as better career mentors to their participants.

This event is FREE and lunch is included.

Register by September 20th.


Garmin: You don’t know what you are talking about, you are just a consumer! Jim: For the third time in 3 years I find out I was right. Garmin: no, we are not wrong therefore you are not right.

Garmin updates are messing up their products. When that happens, their tech support says it is your fault or if out of warranty, broke. No specific instance of buy another one, but what else can you do?

Below is the latest email message trail with Garmin Tech Support. The problem started when my Garmin Edge 1000 could not be found by my computer. Information was downloading by Wi-Fi but I could not get my Garmin to work.

In the process of working on my Edge 1000 to get it to work again, I did two factory resets. I did a boot block. Each time you have to sit down with your Garmin and re-enter all the information and hook up all your sensors, etc. I have four different bikes I use my Garmin with.

I took my Edge 1000 to 2018 Summer @OutdoorRetailer and had the people at the Garmin booth try and get my Edge 1000 to work. No luck.

As you can see from the last email, Garmin Tech Support determined that the pins on my Edge 1000 were busted and my Garmin was sort of dead.

I went for a ride 2 days ago and to recharge the battery hooked it up to my computer again. While looking for a file on my computer I noticed my Garmin Edge 1000 was there, another drive.

I clicked on Garmin Express, the software that links to your Garmin product so you can sync, upload or download info. My Edge 1000 was there and it synched.

Here is the email conversation with Garmin

Hi Jim,

The port on the back of the Edge should have four pins, two for power and two for data. Most likely the data pins are damaged. If you have any other questions or require further support please do not hesitate to let us know or visit our support center (https://support.garmin.com/en-US/).

US: 1.888.442.7646 Canada: 1-866-429-9296 Monday through Friday, 7AM to 7PM. Central Standard Time. Closed Holidays.

Thank you for choosing Garmin,

>> Sent: 24/07/2018 08:12

I appreciate the offer but my edge is way too old and has been replaced once already.

What I find confusing is it can be charged. It just can’t be found? That is a connection issue?

Slow to respond because I’m at the outdoor retailer tradeshow. I’ll see the Garmin sales team today.

More later.

THANKS

Jim

From: Product.Support@garmin.com <Product.Support@garmin.com>

Hello Jim,

>> I am sorry about the issues you are having today. I would be happy to work with you towards a resolution today. It seems like the port on the back of the device is damaged. Does the port on the back of the device look damaged or corroded? We suggest cleaning it out with something like canned air if you haven’t yet. If this doesn’t resolve your issue your device may need to be exchanged.

•    What is the serial number for your Edge? It is located on the back, underneath the weather cap.

•    How long have you had the device?

o    For more information about our warranty policies, please visit: https://www.garmin.com/en-US/legal/consumer-limited-warranty

Once we have the above information we will be able to provide further support. If you have any other questions or require further support please do not hesitate to let us know or visit our support center (https://support.garmin.com/en-US/).

>> US: 1.888.442.7646 Canada: 1-866-429-9296 Monday through Friday, 7AM to 7PM. Central Standard Time. Closed Holidays.

Thank you for choosing Garmin,

>> Original Message …

>> >> From: jhmoss@gmail.com

>> >> To: Product.Support@garmin.com

Three computers do not recognize my edge 1000. All have Garmin Express. All know I have an Edge 1000 and ate least one other product. None of them can find my edge 1000. I have tried different USB cables, I have tried using USB hubs and plugging directly into a computer USB port. I have rebooted the computer. the Edge 1000 was just factor reset also and it is still not recognized. It is currently plugged into the original computer I have used for the past 3 years to recognize it and it is “searching.” I let it search for 24 hours. Unplug, go for a ride and plug back in.

I also cannot set up the WIFI in the Edge 1000 because of this.

Jim Moss

On Tue, Mar 24, 2015 at 11:31 PM, James H. (Jim) Moss <jhmoss@gmail.com> wrote:

Did a full factory reset and it still is not being found.

Tried my third cable. Still not being found.

Restarted my computer, still not found.

By the way, I rarely use Garmin for anything Map my Rides and Ride with GPS and they still cannot find the Edge 1000 or my Fenix 2. Nor is windows explorer finding them.

I’m also getting error messages that the communicator plug in is not working.

I have tried switching to different USB ports, 3.0 and 2.0 working from hubs or directly to the computer and still nothing. I just started getting Unknown USB Device messages when I just switched USB ports again.

Garmin Connect did find my Garmin Memory card just now. Memory Card (f:\) however Windows Explorer is not showing an F drive.

Both the Fenix 2 and the Edge 1000 are charging. The Edge 1000 keeps searching for satellites no matter what I do. Garmin Express can’t find anything

Jim

From: Product.Support@garmin.com [mailto:Product.Support@garmin.com]

Dear Jim Moss,

Thank you for contacting Garmin International.

I am sorry to hear that you are still having issues with your Edge 1000. I would be happy to assist you with this.

Have you tried restarting your computer? If that does not work we may need to master reset the device,

There are a few instances in which it may be necessary to perform a master reset on the Edge. A master reset should be performed if the device is:

•    Not functioning properly

•    Needing to be restored to factory default settings

•    Not receiving a satellite signal

•    To bring up the language selection prompt if incorrect language text is displayed

•    Unable to pair accessories2, such as a heart rate monitor or speed/cadence sensor

All settings, workouts and satellite data may be erased when resetting the GPS. Workouts can be backed up in Garmin Connect. If you wish to keep your personalized settings, you will need to backup your device.

To perform a master reset:

1.    Power device off

2.    Press and hold Lap and Start/Stop

3.    Power device on while still holding both buttons

4.    Continue holding buttons when the Garmin “splash” screen appears

5.    Release buttons when Garmin “splash” screen disappears

The reset is successful if, once powered up, the device proceeds into the initial setup wizard. Once the reset and setup wizard are complete, place the device outside with a clear view of the sky for a minimum of 20 minutes to acquire satellite data.

If you have additional questions or concerns, please respond to this email or feel free to call us.

We are available Monday-Thursday 8:00am-6pm CST and Friday 8:00am-5:00pmCST. Closed holidays.

Garmin Product Support (800)800-1020

>> Original Message …

>> >> >> From: jhmoss@gmail.com

>> >> >> To: Product.Support@garmin.com

Did not change anything. Garmin Express can’t find the Edge 1000 nor can the computer.

From: Product.Support@garmin.com [mailto:Product.Support@garmin.com]

>> >> >> Sent: Tuesday, March 24, 2015 11:31 AM

>> >> >> To: jhmoss@gmail.com

I’m learning. If I start a ride and none of my sensors are connected then I know that my Edge has been updated by Garmin. I have to start playing around, eventually stopping the ride to re-connect the sensors. I have a dozen hour long rides that recorded 7 minutes of riding and jumps on my bike for miles until I finally got tired of trying to reconnect the sensors. I give up and work on them when I get home.

Update 1

I had not used my Edge 1000 for over a month. It was connected to my computer with the same USB cable I had used for the past year. One day I looked at it and realized it had connected again. I opened Garmin Express and voila it was there!

So, with no input on my part it is now working again.

Update 2

I tweeted about these issues before I wrote this article. I received the following from Garmin


More

Replying to @RecreationLaw

Hi Jim, I’d be happy to review your situation. Please send us a DM with the details as well as the email address you used when contacting support. -MR

  1. Jim, Thank you for the information and your patience with us over the extended Holiday weekend. Just to clarify, the Product Support associate was offering a possible cause for the issue you described. You claimed that a software update resolved your issue. However, the most recent update for the Edge 1000 was released in mid-March. I’ve looked over the software change history for the Edge 1000, but I see nothing mentioning any fix to connectivity issues. The updates included in 14.70, released mid-March as I mentioned, were: •Added Connect IQ 2.4.2 support. •Fixed an issue that could cause the device to crash when syncing segments. •Fixed an issue with the backlight not turning on consistently. •Fixed an issue with the user’s FTP resetting after changing the power zone configuration. I can understand your frustration and that you’re dissatisfied. Our associates have been assisting you as best they can with the information they have. Your device was believed to be up-to-date because you had been in contact with us multiple times since the software released in March, you were having issues with connectivity, and we currently have no open tickets that I can find regarding that type of issue on the Edge 1000. The suggestion that the data pins might have been damaged, dirty, or corroded was not an attempt at passing the buck, but rather a way for us to determine the cause of the issue you were experiencing. It sounds like updating the device resolved the issue for you, though looking at the change log, I don’t see how/why that would have worked or why an update would have presented itself if you’d already updated the product since the last release in March. Nevertheless, I’m glad to hear that things are running smoothly again. Thank you, -XXXX

    Sep 4

  2. The device was plugged in to a USB port since bringing it back from OR so nothing changed for a couple of weeks. I’ll correct my statements based on this, but honestly, based on my history with Garmin, I don’t buy it. https://recreation-law.com/2018/04/04/i-took-my-garmin-vivosport-off-in-fact-im-done-with-it/ 
    https://recreation-law.com/2018/02/28/i-love-garmin-products-i-hate-garmin/ 

    So, what is up? Could it be fate (not love just something out of my control.) or are map updates enough to mess with my Edge 1000. Or am I off my rocker and just wrong about everything?

    The reason why I’m guessing that even a map update, which seems to occur daily, can affect the rest of the Edge 1000 is because my sensors go offline, all of them more times a year than Garmin says they update the Edge 1000

    I don’t know. I and felt obligated to provide Garmin’s side of the story. However, part of me does not buy it.

    I’ll be at Interibke next week, I’ll see if any tech’s there have an opinion.

    What do you think? Leave a comment.

    Copyright 2018 Recreation Law (720) 334 8529

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





    If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

    Author: Outdoor Recreation Insurance, Risk Management and Law

    To Purchase Go Here:

    Facebook Page: Outdoor Recreation & Adventure Travel Law

    Email: Rec-law@recreation-law.com

    Google+: +Recreation

    Twitter: RecreationLaw

    Facebook: Rec.Law.Now

    Facebook Page: Outdoor Recreation & Adventure Travel Law

    Blog:
    www.recreation-law.com

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

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

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


Want a Job Working on the River? USFS has 6 River Ranger Positions Open on Snake River!

Seasonal hiring started earlier this year for Forest Service seasonal workforce for Summer 2019. The Application period open day on September 10, 2018 and close at midnight EST October 10, 2018

Jackson Ranger District will be hiring up to 6 Forestry Technician “River Ranger” in Jackson, Wyoming on the Snake River ranger from GS-04 to GS-06.. The GS-06 will be serve as the crew lead.

Announcement numbers

GS-04 19‐TEMP‐R4‐FTRECRR‐4DT‐BV
GS-05 19‐TEMP‐R4‐FTRECRVR‐5DT‐BV
GS -06 19‐TEMP‐R4‐FTREC‐6DT‐BV

Please contract for addition information or question about the River Ranger Positions

David Cernicek – River Manager
307-739-5417
dcernicek

John Newman – Lead River Ranger
307-739-5538
johnnewman

Thanks,
John B. Newman

rms%20-%20logo.jpg

“Supporting professionals who study, manage and protect North America’s rivers”

River Management Society ~ PO Box 5750, Takoma Park, MD USA 20913-5750 ~ +1-301-585-4677

open?upn=GJ4razR2F2b9e2-2BhTGB4XftE9mPndUqfrrTiMJcmXrtxlIQ3vqgcR0C0-2Bw9S39wAM0waKkgSc0owo8mmuaVjA8y03bVc7VMrs9YYlxirIY4WLtlYqnAwpG8ke7MPH56qskSI4dxRe1pg9g0nkrifKEGW4-2FlPF90KcV2MMe0jGu98TX7hhrCcOza3yKjTbIX47LWLwWqwcDP0KHBjrbld77e-2BkgHTAncELxyFF-2FXc2qElhUnK2tkq66GnaLfZPSm-2F6VUbWP-2FC1Nv3Kf1eKqG-2FmcLS2Ltbq4EYaKOHCylQDdxaheXZJfDIY-2Fv4s3FyQDrZ28DgMT4frM8jW8UnvntnMg-3D-3DRiver 2019.docx


The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.

Plaintiff hit a snowcat and was severely injured when she was sucked under the tiller. Mammoth Mountain Ski Area was not liable because of the release and snowcats on the mountain are an inherent risk of skiing and snowboarding.

Willhide-Michiulis v. Mammoth Mt. Ski Area, LLC, 2018 Cal. App. Unpub. LEXIS 4363

State: California, Court of Appeal of California, Third Appellate District

Plaintiff: Kathleen Willhide-Michiulis et al (and her husband Bruno Michiulis)

Defendant: Mammoth Mountain Ski Area, LLC

Plaintiff Claims: negligence, gross negligence and loss of consortium

Defendant Defenses: Assumption of the risk and release

Holding: for the defendant ski area Mammoth Mt. Ski Area

Year: 2018

Summary

When skiing or snowboarding you assume the risk of seeing a snowcat grooming on the slopes in California. If you run into a snowcat and get sucked into the tiller you have no lawsuit against the ski area.

A snowcat at Mammoth Mountain Ski Area is a great big red slow-moving machine with flashing lights and sirens. They are hard to miss, so therefore they are something you assume the risk when on the slopes.

Facts

The injury suffered by the plaintiff and how it occurred is gruesome. She hit a snowcat while snowboarding and fell between the cat and the tiller. Before the cat could stop she was run over and entangled in the tiller eventually losing one leg and suffering multiple other injuries.

Plaintiff Kathleen Willhide-Michiulis was involved in a tragic snowboarding accident at Mammoth Mountain Ski Area. On her last run of the day, she collided with a snowcat pulling a snow-grooming tiller and got caught in the tiller. The accident resulted in the amputation of her left leg, several skull fractures and facial lacerations, among other serious injuries

The plaintiff was snowboarding on her last run of the night. She spotted the snow cat 150 feet ahead of her on the run. When she looked up again, she collided with the snowcat.

While Willhide-Michiulis rode down mambo, she was in control of her snowboard and traveling on the left side of the run. She saw the snowcat about 150 feet ahead of her on the trail. It was traveling downhill and in the middle of the run. Willhide-Michiulis initiated a “carve” to her left to go further to the left of the snowcat. When she looked up, the snowcat had “cut off her path” and she could not avoid a collision. Willhide-Michiulis hit the back-left corner of the snowcat and her board went into the gap between the tracks of the snowcat and the tiller. Willhide-Michiulis was then pulled into the tiller.

The defendant Mammoth Mountain Ski Area posted warning signs at the top and bottom of every run warning that snowcats and other vehicles may be on the runs. The season pass releases the plaintiff, and her husband signed also recognized the risk of snowcats and identified them as such.

Further, in Willhide-Michiulis’s season-pass agreement, she acknowledged she understood “the sport involves numerous risks including, but not limited to, the risks posed by variations in terrain and snow conditions, . . . unmarked obstacles, . . . devices, . . . and other hazards whether they are obvious or not. I also understand that the sport involves risks posed by loss of balance . . . and collisions with natural and man-made objects, including . . . snow making equipment, snowmobiles and other over-snow vehicles.

The trial court concluded the plaintiff assumed the risks of her injury and granted the ski area motion for summary judgment. The plaintiff appealed that decision, and this appellate decision is the result of that appeal.

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

The decision included a massive recounting of the facts of the case both before the analysis and throughout it. Additionally, the court reviewed several issues that are not that important here, whether the trial court properly dismissed the plaintiff’s expert opinions and whether or not the location of the case was proper.

Releases in California are evolving into proof of express assumption of the risk. The court reviewed the issues of whether Mammoth met is burden of showing the risks the plaintiff assumed were inherent in the sport of snowboarding. The facts in the release signed by the plaintiff supported that assumption of the risk defense and was pointed out by the court as such.

…plaintiffs signed a season-pass agreement, which included a term releasing Mammoth from liability “for any damage, injury or death . . . arising from participation in the sport or use of the facilities at Mammoth regardless of cause, including the ALLEGED NEGLIGENCE of Mammoth.” The agreement also contained a paragraph describing the sport as dangerous and involving risks “posed by loss of balance, loss of control, falling, sliding, collisions with other skiers or snowboarders and collisions with natural and man-made objects, including trees, rocks, fences, posts, lift towers, snow making equipment, snowmobiles and other over-snow vehicles.”

California courts also look at the assumption of risk issue not as a defense, but a doctrine that releases the defendant of its duty to the plaintiff.

“While often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case.” Express assumption of risk agreements are analogous to the implied primary assumption of risk doctrine. “The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.””

The court then is not instructed to look at the activity to see the relationship of the parties or examine the activity that caused the plaintiff’s injuries. The question becomes is the risk of injury the plaintiff suffered inherent in the activity in which the plaintiff was participating. The issue then becomes a question solely for the courts as in this case, does the scope of the release express the risk relieving the defendant of any duty to the plaintiff.

After the judge makes that decision then the question of whether or not the actions of the defendant rose to the level of gross negligence is reviewed. “The issue we must determine here is whether, with all facts and inferences construed in plaintiffs’ favor, Mammoth’s conduct could be found to constitute gross negligence.

Ordinary or simple negligence is a “failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”

“‘”[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”‘ amounts to ordinary negligence. However, to support a theory of ‘”[g]ross negligence,”‘ a plaintiff must allege facts showing ‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”[G]ross negligence’ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. . . .”‘”

When looking at gross negligence, the nature of the sport comes back into the evaluation.

“‘[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage.'” Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.

Skiing and snowboarding have a long list of litigated risks that are inherent in the sport and thus assumed by the plaintiff or better, to which the defendant does not owe the plaintiff a duty.

There the plaintiff argued the snow groomer was not an assumed risk. The court eliminated that argument by pointing out the plaintiff had signed a release which pointed out to the plaintiff that one of the risks she could encounter was a snow groomer on the slopes.

The main problem with plaintiffs’ argument that common law has not recognized collisions with snow-grooming equipment as an inherent risk of skiing, is that plaintiffs’ season-pass agreement did. When signing their season-pass agreement, both Willhide-Michiulis and her husband acknowledged that skiing involved the risk of colliding with “over-snow vehicles.” Willhide-Michiulis testified she read the agreement but did not know an “over-snow vehicle” included a snowcat. Plaintiffs, however, did not argue in the trial court or now on appeal that this term is ambiguous or that the parties did not contemplate collisions with snowcats as a risk of snowboarding. “Over-snow vehicles” is listed in the contract along with “snow making equipment” and “snowmobiles,” indicating a clear intent to include any vehicle used by Mammoth for snow maintenance and snow travel.

The court went on to find case law that supported the defense that snow groomers were a risk of skiing and boarding, and it was a great big slow moving bright-red machine that made it generally unavoidable.

Further, the snowcat Willhide-Michiulis collided with is large, bright red, and slow-moving, making it generally avoidable by those around it. Indeed, Willhide-Michiulis testified that she saw the snowcat about 150 feet before she collided with it. Although she claims the snowcat cut off her path, the snowcat was traveling less than ten miles an hour before standing nearly motionless while turning onto Old Boneyard Road downhill from Willhide- Michiulis.

Even if there were no warning signs, nothing on the maps of the ski area, nothing in the release, once the plaintiff spotted the snowcat the responsibility to avoid the snowcat fell on her.

The appellate court upheld the trial courts motion for summary judgement in favor of the defendant ski area Mammoth Mountain.

So Now What?

The California Appellate Court took 11 pages to tell the plaintiff if you see a big red slow-moving machine on the ski slopes to stay away from it.

What is also interesting is the evolution of the law in California from a release being a contractual pre-injury agreement not to sue to proof that the defendant did not owe a duty to the plaintiff because she assumed the risk.

Besides, how do you miss, let alone ski or snowboard into a big red slow-moving machine with flashing lights and sirens on a ski slope?

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

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


Today is World Clean Up Day, Make Sure to Do Your Part

Take four hours or at least four pieces of litter and put them in the trash.

on.jsp?ca=09014739-4c74-4eeb-9168-bfec29857247&a=1114998960510&c=a3ad7c00-2d65-11e4-b1cd-d4ae52a4597c&ch=a4195d30-2d65-11e4-b209-d4ae52a4597c

S.gif
7745e48c-b0a9-4950-a378-f02c2e61fd6a.png
S.gif

World CleanUp Day

is

September 15, 2018

S.gif
S.gif

Have Fun with millions of Americans

on

World CleanUp Day

From Coast to Coast, organizations and individuals alike join forces to clean up our parks, trails, beaches, mountains and open spaces.

All it takes is a pair of gloves and a bag. Go to your park, river, lake, beach, street.

· Sign Up for World CleanUp Day

· Download the Flyer

· Download the APP

S.gif
S.gif
S.gif
b0598d28-2178-45de-8027-c6d98fd2650b.jpg
Lonely Planet piece on World CleanUp Day. Dispose of at least one piece of litter/trash on Saturday. Your friends are doing it with millions of others. Don’t miss out.

https://www.lonelyplanet.com/news/2018/09/13/world-cleanup-day/

S.gif S.gif
27df67e8-8014-4637-a233-e3030a45f923.jpg
Background piece on United States and World CleanUp Day. In the US, we are holding the annual National CleanUp Day in conjunction with World CleanUp Day.

https://www.theepochtimes.com/hiking-friends-inspire-thousands-to-clean-up-the-trails_2657094.html

S.gif
S.gif
2018 Partners
6de8413b-b1cb-4bec-8007-33e5ec79cb92.png
Keep America Beautiful

620 Affiliate Locations

aa1cdf71-d59f-48ed-b0f5-b384739aece3.jpg
330e10a7-3a30-4a2b-9f5f-3a63d5858c48.jpg
Earth Day

Earth Day Network

EarthX

S.gif
Name: World CleanUp Day

Date: September 15, 2018

All Day, Everywhere

Sign up to volunteer

S.gif
S.gif
National CleanUp Day was created by Clean Trails, a US based 501(c)3 non-profit. National CleanUp Day was officially proclaimed in mid-2017 and our inaugural event was held on September 16, 2017. We partnered with many Keep America Beautiful affiliates, companies and individuals with a total of 225,000 participants.

For 2018, we have partnered with Keep America Beautiful nationally and most affiliates are holding a cleanup on September 15, 2018. We just partnered with the Ocean Conservancy and Earth Day for 2018 and expect to have more than one million volunteers from around the country.

Also in 2018, we have partnered with Let’s Do It World who is hosting the first ever World CleanUp Day. 150 Countries and millions of participants.

2019 will expand our partnerships and outreach significantly and our goal is 5 million participants.

Thank you for all you do to make the world a better place!

Sincerely,

Steve Jewett

S.gif
19150b8d-04cf-4e5a-b4ee-982ba3d40a32.jpg
e1762178-6cb8-46ae-9da6-459b38d2f5ab.png
7745e48c-b0a9-4950-a378-f02c2e61fd6a.png
9be43e56-934e-4cba-956c-59da4119aeac.jpg
52ef7a81-79d5-402f-913c-c8cb2af16fda.jpg
6de8413b-b1cb-4bec-8007-33e5ec79cb92.png
7a4a018d-a911-4438-8199-233bc8d707d0.gif
952e5d51-cb5a-429f-a1b9-e70d78297e2e.png
48bb734c-b08f-4611-863f-2609d7ea95e1.gif
27108d2c-4e4a-4b8a-b613-af7e9d48b0b1.jpg
1defe1c6-d411-4f30-8eaf-0fef6f01ddc9.jpg
0b4c90db-bd55-49c3-b402-c4e5e9faf484.jpg
We Did it!
8ebfe002-bd1a-4cca-910b-7b8ee5638b24.jpg
14fad21b-d71b-4fda-8cd0-d6af86fae945.png
S.gif
S.gif

National Clean Up Day is September 15!

New volunteer opportunity – From Sea to Shining Sea

on.jsp?ca=306b2d01-5b59-440e-bf15-d480f56281f8&a=1114998960510&c=a3ad7c00-2d65-11e4-b1cd-d4ae52a4597c&ch=a4195d30-2d65-11e4-b209-d4ae52a4597c

S.gif
6b5a1328-8037-40a2-b73d-1ea9c6f1090a.jpg
S.gif

National CleanUp Day

is

September 15, 2018

S.gif
S.gif

Have Fun

on

National CleanUp Day

From Coast to Coast, organizations and individuals alike join forces to clean up our parks, trails, beaches, mountains and open spaces.

All it takes is a pair of gloves and a bag. Go to your park, river, lake, beach, street.

· Sign Up at NationalCleanUpDay.org

· Download the Flyer

· Download the APP

S.gif
2018 Partners
6de8413b-b1cb-4bec-8007-33e5ec79cb92.png
Keep America Beautiful

620 Affiliate Locations

aa1cdf71-d59f-48ed-b0f5-b384739aece3.jpg
330e10a7-3a30-4a2b-9f5f-3a63d5858c48.jpg
Earth Day

Earth Day Network

EarthX

S.gif
Name: National CleanUp Day

Date: September 15, 2018

All Day

Sign up to volunteer
S.gif
S.gif
National CleanUp Day was created by Clean Trails, a US based 501(c)3 non-profit. National CleanUp Day was officially proclaimed in mid-2017 and our inaugural event was held on September 16, 2017. We partnered with many Keep America Beautiful affiliates, companies and individuals with a total of 225,000 participants.

For 2018, we have partnered with Keep America Beautiful nationally and most affiliates are holding a cleanup on September 15, 2018. We just partnered with the Ocean Conservancy and Earth Day for 2018 and expect to have more than one million volunteers from around the country.

Also in 2018, we have partnered with Let’s Do It World who is hosting the first ever World CleanUp Day. 150 Countries and millions of participants.

2019 will expand our partnerships and outreach significantly and our goal is 5 million participants.

Thank you for all you do to make the world a better place!

Sincerely,

Steve Jewett

S.gif
19150b8d-04cf-4e5a-b4ee-982ba3d40a32.jpg
e1762178-6cb8-46ae-9da6-459b38d2f5ab.png
7745e48c-b0a9-4950-a378-f02c2e61fd6a.png
9be43e56-934e-4cba-956c-59da4119aeac.jpg
52ef7a81-79d5-402f-913c-c8cb2af16fda.jpg
6de8413b-b1cb-4bec-8007-33e5ec79cb92.png
7a4a018d-a911-4438-8199-233bc8d707d0.gif
952e5d51-cb5a-429f-a1b9-e70d78297e2e.png
48bb734c-b08f-4611-863f-2609d7ea95e1.gif
27108d2c-4e4a-4b8a-b613-af7e9d48b0b1.jpg
1defe1c6-d411-4f30-8eaf-0fef6f01ddc9.jpg
0b4c90db-bd55-49c3-b402-c4e5e9faf484.jpg
We Did it!
8ebfe002-bd1a-4cca-910b-7b8ee5638b24.jpg
14fad21b-d71b-4fda-8cd0-d6af86fae945.png
S.gif
S.gif
S.gif
Clean Trails, LLC | National CleanUp Day, World CleanUp Day, Evergreen, CO 80439
@CleanTrails#RecLaw #RecreationLaw #OutdoorLaw #OutdoorRecreationLaw #OutdoorIndustry #ORLawTextbook