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You cannot assume the risk of a recreational activity if the defendant alters the activity and adds risk that he does not inform the guest about.

If you run PVC pipe across the slope that blends in with the slope, a skier coming down the hill does not assume the risk of hitting PVC pipe. PVC does not fall from the sky, is not  natural, and in 50 years of skiing it not something I’ve ever seen on a slope.

Zhou, et al., v. Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

State: New York

Plaintiff: Judy Zhou, et al

Defendant: Tuxedo Ridge, LLC, et al.

Plaintiff Claims: negligence

Defendant Defenses: assumption of the risk and the mother should have watched her daughter more closely

Holding: for the defendant

Year: 2017

Summary

There are two defenses in this case. The first is assumption of the risk. The standard defense used for injuries arising from activities in outdoor recreational activities. The second is not discussed by the court but one we have all wanted to argue at least once. 

The defendant makes several arguments in support of summary judgment, including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk.

The defendant is not at risk because the mother let the child do what the child wanted and did not supervise the child. Ski areas are not baby sitters. If you buy a minor a lift ticket, the ski area knows the lift ticket allows access by the minor to whatever lift the minor wanted to ride and to come down any hill the minor wants to ride.

However, if that child is injured, the ski area should not have allowed that child on the lift because it was too dangerous.

That argument is a landmine to make in court. Mothers of injured children are liked by juries because they feel for the pain the mother is suffering. And who in their right mind would say that a mother is doing a bad job of raising their kids.

The other defense assumption of the risk would have won the case if the defendant had not laid down PVC pipe on the slope in a way that no one could see the pipe. The pipe was there to create a coral to lead skiers back to the lift. However, when you can’t see it, don’t know it’s there, and hit it, it is hard to argue that PVC is a natural risk of skiing.

Facts 

The facts are quite simple. 

…the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the  chairlift. The PVC pipes were as hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts. 

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

The court started its analysis of the case with the famous Cardozo quote that created the defense of assumption of the risk.

The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929)

However, the court quickly shifted its analysis to whether the injured minor plaintiff could have assumed the risk.

A seven-year-old skier could not assume the risk of a risk she was not properly educated about. Unless the risk is inherent, part of skiing, or known, understood and accepted by the plaintiff, or part of the risk of the sport, the plaintiff cannot assume the risk. 

So Now What? 

If the PVC pipe were visible; fenced, painted red, behind warning signs, this case would have gone the other direction. However, when you hide a risk not only do you lose the assumption of risk defense, but you might also set yourself up for a reckless or willful charge that could lead to greater damages. 

Seriously, don’t be stupid is the bigger thing to learn from this case. 

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2017 Recreation Law (720) 334 8529 

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Email: Rec-law@recreation-law.com 

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

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Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

Zhou, et al., v.Tuxedo Ridge, LLC, et al., 54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

[**1] Judy Zhou, et al., Plaintiff, against Tuxedo Ridge, LLC, et al., Defendants.

1229/2014

SUPREME COURT OF NEW YORK, QUEENS COUNTY

54 Misc. 3d 1213(A); 2017 N.Y. Misc. LEXIS 350; 2017 NY Slip Op 50128(U)

February 3, 2017, Decided

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

CORE TERMS: summary judgment, skier’s, chairlift, slope, daughter, novice, pipes, assumption of risk, belt, ski, plumbing, netting, corral

HEADNOTES

Negligence–Assumption of Risk.

JUDGES: [*1] Honorable Salvatore J. Modica, J.S.C.

OPINION BY: Salvatore J. Modica

OPINION

SALVATORE J. MODICA, J.:

The defendant moves for summary judgment in this case where the plaintiff, a nine-year-old child, making her maiden ski trip was injured.

The defendant makes several arguments in support of summary judgment including that the mother of the plaintiff should have supervised her daughter more closely and assumption of risk. Almost ninety years ago, Chief Judge Cardozo stated: “The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 NY 479, 483, 166 N.E. 173 (1929) (one stepping on moving belt of amusement device accepts obvious and necessary dangers).

The law has moved from assumption of risk to comparative negligence. As plaintiff’s counsel, Souren A. Israelyan, Esq., cogently and aptly states in his affirmation in opposition to the defense motion, the defendants cut a portion of the Bunny Hill slope by installing white PVC plumbing pipes to create a corral line leading to the chairlift. The PVC pipes were as [*2] hard as metal plumbing pipes and, at the same time, blended into the slope’s white snow and were not clearly visible to a skier in motion, let alone a novice skier such as the plaintiff infant. These obstructions blocked a portion of the snowy slope and were in the path of a skier’s descent. Although the defendants maintained nylon netting at the site, it did not place a fence or netting on the slope above the area to prevent and catch children and novice skiers from coming into contact with the corral line’s PVC posts.

Under the foregoing facts, the provident course is to deny the defendants’ motion for summary judgment. See, De Lacy v. Catamount Dev. Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003) (genuine issue of material facts existed as to whether seven-year-old novice skier with limited skiing ability was properly instructed regarding use of chairlift, whether owner/operator of ski facility violated its own policies, and whether chairlift’s design was faulty, precluding summary judgment for owner/operator in negligence action brought by mother and her daughter, seeking to recover damages for injury daughter sustained when she fell from chairlift); accord, Finn v. Barbone, 83 AD3d 1365, 921 N.Y.S.2d 704 (3rd Dept. 2011) (fact issues precluded summary judgment on issue of skier’s assumption of the risk).

This Court, [*3] therefore, denies the motion for summary judgment in its entirety.

The parties are required to appear in the Trial Scheduling Part on February 15, 2017, for trial.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: Jamaica, New York

February 3, 2017

Honorable Salvatore J. Modica

J.S.C.


Every Manufacturer worldwide selling in California must meet these new Labeling Requirements. New California Proposition 65 warnings will become effective in one year.

Get your labels up to date or it could be costly. Every product, item, thing, sold in California must comply.

New Regulations for California Proposition 65 will affect products, websites and catalogs and in some cases the products itself. All products manufactured after August 30, 2018 sold in California must have this label on the product. Failure to conform can incur penalties of $2500 per day per violation of the law.

The regulations are created by California’s Office of Environmental Health Hazard Assessment (“OEHHA”)

Summary 

California Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act of 1986) requires products that contain any of a list of chemicals must have a warning label about the product. The list of chemicals on the list can be found here: Chemicals or Listed under Proposition 65. You can download a list of the chemicals here. There are currently 967 chemicals on the list and the list adds new chemicals yearly. However, there is a one-year grace period to comply with the required warnings after a chemical has been added to the list.

In the past, if you thought, your product might contain one of the chemicals on the list; you simply put the warning on the product. Those days are gone. Now, you MUST know all chemicals in your product. If your product contains one of the chemicals, you have to list at least one of the
chemicals on your label. The broad approach to warning will no longer work.

The new labels have been created to counteract this mass labeling by requiring a list of the dangerous products in the product to be included in the warning. The labels must include a specific yellow triangle, a link to the California Proposition 65 website and other information.

The bigger problem is the list of chemical’s changes every year. In the past, it has changed several times in a year. However, the state of California seems to be attempting to limit the changes to yearly now, publishing the new list every July.

Warnings are broken down into two categories, those that may cause cancer and those that may harm an unborn fetus. The first group is identified as carcinogens. The second group is identified as reproductive toxicants. 

The new warning will look like this if the chemical is on the list that might cause cancer: 

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 If the chemical is on the list because it may injure a fetus the warning must look like this.

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 If the warning contains both a carcinogen and a toxicant, the safe harbor warning will look like this.

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This is a different warning if you place the warning directly on the product.

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However, this warning has minimum type size requirements. The type size must be a minimum of 6pt or nor smaller than the largest type size used for other consumer information on the product. 

Catalogs 

The New Warning and Requirement to list the known chemicals in the warning are not all that is now required. Warnings must also be posted in Catalogs and on websites. For catalog sales, the warning must be located in a position to be associated with the product that is being sold that contains the chemical. This means you can’t just post the warning in the beginning of the catalog; it must be on the page with the product.

Websites 

Websites must have the warning on the same page as the product is being sold on. If not on the same page as the product, the warning must be communicated to consumers prior to finalizing the purchase.

My Thoughts

I would urge you to adopt the new warnings and put them on your products now. Even though your product was manufactured prior to August
30, 2018, you may still be forced into a court of law to prove the manufacturing date. Plan now to put the new labels on and safe that possible nightmare. 

FAQs 

What if I don’t sell products in California?

        You may not sell products in California. That is not the issue; the issue is if your product is sold in California, you will be the one paying the fines and penalties.

What if I label the products “Not for Sale in California?”

        When was the last time you read a label? Your product is labeled and sold to someone in Nevada, who then travels to a flea market in California. Again, you pay the fines.

What other ways are there around this? 

        There aren’t any. 

What if my manufacturer won’t tell me the chemical composition of the components in my product?

        Find a new manufacturer, quickly.

Based on current articles and reading there is no way around this. You either find out what is in your product, or you go out of business. If you don’t go out of business a lawyer or the State of California will put you out of business.

Speaking of that, the law allows law by private citizens to sue manufacturers for failing to comply. The citizen gets a portion of the money collected, and you pay for the attorney who sued you as well as your own attorney. There are law firms and “consumers” setting up and starting these lawsuits already.

Get ahead of the game. 

If you want help with this email jim@rec-law.us or call 720 334 8529 

Or you can fill out one of the forms below and email or send it to me.

 US Based Manufacturers : Information and Agreement to Review Your Products and Product Information

Foreign Based Manufacturers: Information and Agreement to Review Your Products and Product Information Foreign Imports

Additional Information 

New Proposition 65 Warnings

Listed Chemicals

Law & Regulations

Frequently Asked Questions for Businesses

Office of Environmental Health Hazard Assessment (OEHHA) 

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2017 Recreation Law (720) 334 8529 

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

clip_image010[4] clip_image012[6] clip_image014[4] clip_image016[6] clip_image018[6]

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 RecreationLaw    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, Office of Environmental Health Hazard Assessment, OEHHA, Proposition 65, Carcinogen, Toxicant,


Mountainsmith Sample Sale September 8th


Paddlesports Retailer, Madison Wisconsin, What a tradeshow should feel like?

I’ve just finished day one at the Paddlesports Retailer Tradeshow going on now in Madison Wisconsin. It is fantastic. I’m seeing old friends, many I’ve not seen for twenty years. I’m seeing boats that are beautiful and handcrafted that have disappeared from other tradeshows. I’m looking at accessories I did not know existed.

Over the past fifteen years the Paddlesports Industry has felt abandoned by the Outdoor Retailer Summer Tradeshow. During that period, the number of retailers attending Summer OR have continually dropped. This past show, there were probably about a dozen, but I did not count.

There are over 100 exhibitors here. People and products that I had forgotten about. An industry, paddlesports, with a big beating heart that loves water and helping people enjoy the water.

It is a feeling that I’ve not felt at tradeshows for a while, since Outdoor Retailer before it left Reno, NV. When people were excited to attend a tradeshow and looked forward to it. Maybe I’m being nostalgic or dreaming of days long gone and memories are always better than reality. But it just seems….

It is a little laid back, no one rushing down the aisles but that is possibly because you can get around easily, it is small. Larger than OR the first year it was at the Nugget in Reno, but still small. But everyone has a smile on their face. Everyone is happy to be here, and its a tradeshow.

I’ve seen orders being written. I’ve seen people showing lines after the beer came out. I’ve seen people working and product being bought.  I can’t remember the last time I saw an order being written at a tradeshow other than in the Bison Designs booth at OR.

Walking from my hotel in Madison this morning I found myself walking with a retailer. OR came up and he said he had never attended OR. I asked why. He said timing, I would lose thousands to take time off when OR is held and I can’t afford it.  Unsolicited by me. He was also a small Wisconsin retailer.

At the same time, I’ve not seen buyers form the big retailers like REI, etc., It’s a shame. If you believe that paddlesports is what shows up at OR, you are missing out on 90 exhibitors and their products you have not seen. Sure there is overlap, exhibitors, big ones, who attended OR and are here. However I think that is an indication of their support of the idea, rather than a fear of not being here.

The feelings I describe seem to be mirrored by everyone I have talked to at the show. No guarded answers on how things are going, how do you think this will work out or will you come back. All the answers were “this is great, awesome and yes.” People are happy here, people are taking orders and “writing paper” and paper are planning on attending the next one.

The paddlesports manufactures here like the association with other manufacturers in a small exhibit hall. It gives them the opportunity to learn and to shine. Several said it was nice to realize again, they where part of a larger industry.

This show would not have happened with out Darren Bush of Rutabega’s and Sutton Bacon of Nantahala Outdoor Center. Darren’s relationship in the community and knowledge of how conference center’s work, along with and I’m guessing his name and signature brought the show to life.  Sutton Bacon rounded up the hitters to sign on the dotted line to attend.

Are there issues, you bet. You can’t get everything you need here.  The other accessories that a paddlesports shop needs are not going to be here. No stoves (well one stove at the Point 65 booth by Liberty Mountain, no tents, no sleeping bags. None of those things that add up to more dollars spent at a store.  And a lot of those manufacturers are not going to be able to split and do two or more shows. Someone is going to have to give and I suspect, like always it will be the retailers. However if the money item is boats for a retailer, the draw, then this tradeshow is where those retailers need to be.

I was not really thinking of attending, but so many people asked me about the show at OR or told me they were going, I figured it was a Can’t Miss opportunity. I was right.

I’m glad I’m here. I fly home tonight and now wish I had more time to walk and talk the show, to spend more time with old friends, to meet new friends and to enjoy the paddlesports industry.

A little rambling, but an honest evaluation of 24 hours at a new Paddlesports Retailer Tradeshow in Madison.  Thanks Darren & Sutton the team you created to put this together.

Jim

 

 


Colorado Avalanche Information Center has a new Monthly Email, sign up now

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AUGUST 2017 ISSUE |Winter is coming…
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Winter is coming and our 2017-2018 season is going to be big. See below for exciting updates, upcoming events and more.
First thing’s first…
You’re probably wondering, ‘How did I get on this email list?‘ We are emailing you because you have been a loyal supporter of Friends of CAIC. You have either donated to us, attended our events, or are just awesome.

We are excited to bring you ‘The Monthly Dump‘, a seasonal monthly email that will highlight what is happening around the state. We will promote our events, feature avalanche problems and weather patterns, and keep you in the know. This first issue is simple — as winter approaches, more content will be shared here.

Upcoming Events
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Bentgate’s Ski Season Kickoff Party

Thursday, Sept. 21
American Mountaineering Center, Golden
Click here to learn more and purchase your ticket.

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Mountain Meteorology Workshop

Tuesday – Thursday, Sept. 26 – 28
Colorado Mountain College, Leadville
Click here to learn more and purchase your ticket.

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Colorado Snow & Avalanche Workshop

Friday, October 6
Riverwalk Center, Breckenridge
Click here to learn more and purchase your ticket.

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The 10th Annual Benefit Bash

Saturday, December 2
Riverwalk Center, Breckenridge
SAVE THIS DATE! You will not want to miss this year’s Bash.

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Snowsports Industries America is hosting Ski Mechanic Workshops

NEW SIA Ski Mechanics Workshop Launches September 21st!

SIA is excited to announce the development of a new educational program and format to update and replace the traditional Ski Mechanics Workshop (SMW). This new, user-friendly program has taken all of the best elements of the traditional SMW and puts it online so SIA can reach a larger audience of shop owners, managers and employees using an engaging, effective and affordable tool in a self-paced environment. This modern approach to information exchange and knowledge transfer will enhance SIA’s efforts assisting the suppliers and retailers with education and collaboration.

We can’t wait to share it with you!

Want more information? Email us here!
The new SMW site will launch in phases over the next 9 months with the first phase launching in September in time to train up your staff for winter. This phase will focus on Risk Management and will provide a comprehensive training on Customer Assessment/Work Ticket Documentation, Pre-Installation/Tool Use & Care, Component Inspection, Binding Installation, Release Value Selection, System Inspection/Trouble Shooting, Release Test, final Documentation and Dispatch, as well as, Post Accident Report.

Future Phases will include back shop service training for tuning, waxing and retail floor product sales training and matching as well as diving into AT and Snowboard modules.

We are dedicated to improving, so please provide SIA feedback on this new learning platform.

Copyright © 2017 Snowsports Industries America, All rights reserved.
Snowsports Industries America ContactsOur mailing address is:

Snowsports Industries America

PO Box 680850

Park City, UT 84068