Registration is Open for the Colorado Environmental Film Festival

Dear CEFF friends and filmmakers,

The Colorado Environmental Film Festival (CEFF) is an exciting, inspiring, and energizing event that includes world-class environmental films with representatives from local, national and international organizations. We are thrilled to announce our Call for Entries for our 11th annual CEFF is now OPEN for submission!

CEFF seeks unique and meaningful films that aim to inspire, educate, and call to action. The largest environmental film festival between the coasts, CEFF celebrates our 11th annual festival taking place February 23-25, 2017 in downtown Golden, Colorado. Filmmakers of all abilities and backgrounds are invited to submit their films in the categories of Short Films, Feature Length Films and Youth Films (Submission open to for filmmakers under 19 years of age). True to the spirit of Colorado, this event is supported and attended by people who value the natural world and share a passion for the power and beauty of film.

We welcome and encourage you to submit your films today! Early bird registration ends August 15, 2016 so submit your film early for the best value!

Colorado Environmental Film Festival prefers online entries submitted via Withoutabox.com, which provides cost-saving, paperless submission to film festivals around the world. Deadlines and entry fees:

● Early bird – August 15th, 2016 – Price: Regular $30.00 – Student/Youth/Colorado Filmmaker – $20.00

● Regular – September 15th, 2016 – Price: Regular $40.00 – Student/Youth/Colorado Filmmaker – $25.00

● Late – October 30th, 2016 – Price: Regular $50.00 – Student/Youth/Colorado Filmmaker – $30.00

● Extended – November 15th, 2016 – Price: Regular $60.00 – Student/Youth/Colorado Filmmaker – $45.00

Enter today!

https://www.withoutabox.com/03film/03t_fin/03t_fin_fest_01over.php?festival_id=5513

If you have questions please visit go to our website at www.ceff.net

or drop me a note dave.steinke

About CEFF

CEFF hosts local and national feature length and short films for all ages, thought-provoking dialogue, festival celebrations for both filmmakers and audience members, children’s films, a filmmaker forum, and information from a variety of environmental groups. The festival presents informative and entertaining films that explore interconnected ecological, social, and economic themes. Audiences have the opportunity to be more than passive viewers – they will leave inspired, surprised, motivated, entertained, and transformed.


Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Jean Knarr & Lester Knarr v. Chapman School Of Seamanship

CIVIL ACTION NO. 99-952

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2000 U.S. Dist. LEXIS 5351

April 14, 2000, Decided

April 14, 2000, Filed

COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.

For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.

JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: JACOB P. HART

OPINION

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

April 14, 2000

The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.

[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.

Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.

I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .

(Chapman Application/Registration Form).

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).

(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.

Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.

In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).

The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.

We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).

However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.

[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). 1 Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.

1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.

[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.

The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).

The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.

Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.

In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.

An appropriate order follows.

ORDER

AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE


Plaintiff argues under Minnesota law, the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.

Since the language was not an “offer” no new contract was being offered by the ski area to skiers, and the language did not create any conflict with the release language.

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

State: Minnesota, Court of Appeals of Minnesota

Plaintiff: Lee and Cathy Bergin

Defendant: Wild Mountain, Inc. d/b/a Wild Mountain Ski Area

Plaintiff Claims: negligence,

Defendant Defenses: Release

Holding:

Year: 2014

This is a lawsuit by a husband and wife against a ski area for the injuries husband received skiing. A friend purchased season passes online for himself and the defendants. As part of that online purchase, the friend agreed to a release online.

Interesting that just five years ago the issue would have been whether the release signed electronically was valid, now the courts do not even look at that issue.

The friend did not discuss the season pass with the defendants before agreeing to it for them. In a deposition, the husband agreed that he had the friend purchase the passes and had purchased season passes online for the past eleven years and agreed to the release all those years. The defendants wrote a check to the friend for the cost of the season passes.

The trial court held that the friend bound the defendants to the season pass release. The defendants did not argue this issue on appeal.

Seven months later, the defendants picked up their season passes and went skiing. On the back of the season pass was disclaimer language.

The defendants skied “the Wall” a double black diamond trail. The wall had a bump run on the right, and the husband skied the left side. Near the bottom of the run, he hit a bump (mogul?) and went airborne landing on his back. The defendant husband is paralyzed.

This was the only incident the defendant ski area had recorded concerning that run that year. The plaintiff’s sued, and the trial court granted the defendants motion for summary judgment. This appeal followed.

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

During or prior to the granting of the defendant’s motion for summary judgment, the plaintiff’s moved to amend their complaint to add a claim for reckless, willful or wanton conduct of the defendant. The trial court denied this, and the appellate court looked at this issue on appeal.

In order to support a claim for more than ordinary negligence, the rules of civil procedure required a short and plaint statement describing facts supporting their claim.

The court reviewed the requirements to prove the amended allegations. “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” The plaintiff’s argued their two expert’s affidavits supported these new claims.

Because the defendant had no other notice of the issues, the defendant had no notice of the problem in advance of the plaintiff’s injuries. A requirement under Minnesota law to prove reckless, willful or wanton conduct.

Because the evidence is insufficient to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment.

The next issue the court looked at was the validity of the release.

A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy.

An ambiguous clause in Minnesota is one that is “susceptible to more than one reasonable construction.” The trial court held the release was valid because the release was unambiguous and barred only ordinary negligence.

The plaintiff argued the release was ambiguous because they argued the language on the back of the season pass created questions concerning the release. The plaintiff argued the season pass warning was part of the release and therefore, created issues of how the language of the release could be interpreted.

An ambiguity exists only in the language of the document.

Because a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain.

The court found the season pass was not a contract or part of the release. The language on the season pass emphasized the inherent risk of skiing. The language on the season pass was not a new offer by the defendant, to enter  a new or modified contract with the plaintiffs.

As the district court correctly concluded, the season-pass card, itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms.

Even if the language on the season pass was part of the release contract, it still did not create an ambiguity.

Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.

Because the release was valid, and the plaintiff’s failed to establish the factual issues supporting a greater than the ordinary negligence claim the appellate court upheld the release and the trial court’s dismissal of the case.

So Now What?

When the plaintiff is paralyzed there is going to be a lawsuit. Either a subrogation claim by a health insurance company or a simple negligence claim will be filed because the possible recovery is so large. The amount of money involved is just too much not to try a lawsuit.

Here innovative thinking looked at the release and the language on the back of the plastic season pass card and found a new way to argue the release should be void.

At the same time, the obvious issue, there was no contract because the plaintiff did not purchase the pass from the defendant was missed.

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 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

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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, Wild Mountain, Inc, Wild Mountain Ski Area, Season Pass, Release, Ambiguous, Ski Area, Mogul,

 


Colorado Parks and Wildlife is Hiring Interns

f1e9378f-d8d2-4997-b2c6-50e182bc550e.jpg
f1aa9ad4-dd3d-47ed-95d2-79f414efb977.png

River Watch & Water Quality Internship Opportunity

Are you interested in a career with natural resources, including water, water quality, wildlife, working with volunteers, and working with data and information production?

This position’s primary responsibilities will be focused on a combination of River Watch Program needs, skill set and interest of intern, and producing some tangible deliverables (while gaining experience).

Apply Today!
Colorado Parks & Wildlife

Copyright © 2016 Colorado Parks and Wildlife, All rights reserved.
You registered with the CPW Insider to get the inside scoop on parks and wildlife news.

Colorado Parks and Wildlife

1313 Sherman

Denver, CO 80203

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Pacific Cycle Recalls Swivel Wheel Jogging Strollers Due to Crash and Fall Hazards

http://www.cpsc.gov/en/Recalls/2016/Pacific-Cycle-Recalls-Swivel-Wheel-Jogging-Strollers/

Recall Summary

Name of Product: Instep and Schwinn swivel wheel jogging strollers

Hazard: The front wheel can become loose and detach, posing crash and fall hazards.

Remedy: Repair

Consumers should immediately stop using the recalled jogging strollers and contact Pacific Cycle to obtain a repair kit to secure the front wheel. The repair kit includes a replacement mechanism for securing the front wheel that uses a traditional screw on/off method of attachment instead of the quick release lever method of attachment shipped with the product, as well as new warning labels. Consumers should not return the jogging strollers to retailers where purchased. A repair video is available at www.pacific-cycle.com/safety-notices-recalls/.

Consumer Contact: Pacific Cycle toll-free at 877-564-2261 from 8 a.m. to 5 p.m. CT Monday through Friday, online at www.pacific-cycle.com, www.instep.net or www.schwinnbikes.com and click on “Safety Notices & Recalls” or email customerservice@pacific-cycle.com for more information.

Recall Details

Photos Available At http://www.cpsc.gov/en/Recalls/2016/Pacific-Cycle-Recalls-Swivel-Wheel-Jogging-Strollers/

Units: About 217,600

Description: This recall involves single and double occupant swivel wheel jogging strollers that have a quick release mechanism for removing and re-attaching the front wheel. Instep Safari, Instep Grand Safari, Instep Flight, Schwinn Turismo and Schwinn Discover Single and Double Occupant Swivel jogging strollers with the following model numbers are affected. These models come in a variety of colors. The model number is located on the inside of the metal frame above the rear right wheel.

Instep Safari

Single

Instep Grand Safari

Single

Instep Safari

Double

Instep Grand Safari

Double

Instep Flight 

Single

Instep Flight

— Double

Schwinn Turismo

Single

Schwinn Turismo

Double

Schwinn Discover

Single

Schwinn Discover

Double

11-AR178

11-AR182

11-AR220B

11-AR282

11-AR101AZ

11-AR201AZ

13-SC113

13-SC213

13-SC105AZ

13-SC205AZ

11-AR179

11-AR183

11-AR224

11-AR283

 

11-AR301AZ

13-SC114

13-SC214

 

 

11-AR180

11-AR184

11-AR278

11-AR284

 

 

13-SC116

13-SC216

 

 

11-AR181

11-AR-192

11-AR279

11-AR292

 

 

13-SC117

13-SC217

 

 

11-AR240B

11-AR193

11-AR280

11-AR293

 

 

 

 

 

 

11-AR245

 

11-AR281

 

 

 

 

 

 

 

11-AR250

 

11-AR290

 

 

 

 

 

 

 

11-AR255

 

11-AR291

 

 

 

 

 

 

 

11-AR700A

 

11-AR340B

 

 

 

 

 

 

 

111-AR750

 

11-AR345

 

 

 

 

 

 

 

11-AR178DS

 

11-AR350

 

 

 

 

 

 

 

11-AR179DS

 

11-AR355

 

 

 

 

 

 

 

11-AR120B

 

 

 

 

 

 

 

 

 

11-AR190

 

 

 

 

 

 

 

 

 

11-AR191

 

 

 

 

 

 

 

 

 

Incidents/Injuries: The firm has received 132 reports of the front wheel becoming loose or unstable, resulting in 215 injuries, including head injuries, sprains, lacerations, bumps, bruises, and abrasions.

Sold at: Small retailers nationwide and online at Amazon.com, Target.com, Toys-R-Us.com, Walmart.com and other online retailers from January 2010 through June 2016 for between $130 and $350.

Importer: Pacific Cycle Inc., of Madison, Wis.

Manufacturer: Lerado (Zhongshan) Industrial Co. Ltd., of China

Manufactured in: China

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

clip_image002What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council, Pacific cycle, Inc., Instep, Schwinn, Swivel Wheel, Jogging Strollers,

 


Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal.

The decision is very short and very clear. Write a clear and direct release and it will be upheld in Delaware.

Ketler v. PFPA, LLC, 2016 Del. LEXIS 19

State: Delaware, Supreme Court of Delaware

Plaintiff: Deshaun Ketler and Brittany Ketler

Defendant: PFPA, LLC, a Delaware Corporation, d/b/a Planet Fitness

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2016

This is a Delaware Supreme Court decision on release law in Delaware from a lawsuit against a health club.

The plaintiff sued the defendant Planet Fitness because she was injured at the health club, a cable broke on a seated rowing machine she was using.

The trial court granted the defendant’s motion for judgment on the pleadings finding the release stopped the claims of the plaintiff. The plaintiff appealed.

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

The Delaware Supreme Court did not waste a single sentence in this very short very instructive decision.

Releases are valid in Delaware. They must be clear and unequivocal if a release is to be valid.

This Court has previously recognized that a release of prospective negligence may be valid. Such a release must be “‘clear and unequivocal’ to insulate a party from liability

The court looked to the language of the release, and without comment stated the language was clear and unequivocal.  The court then looked at the other issues that may void a release.

The release may not be unconscionable.

Unconscionability is a concept that is used sparingly. Traditionally, an unconscionable contract is one which “no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other.”

Unconscionable in Delaware means more than a just a disparity between the party’s ability to bargain. There must be no real choice for the party being offered the release or agreement.

But mere disparity between the bargaining powers of parties to a contract will not support a finding of unconscionability.” “[T]here must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties.” There is no deprivation of meaningful choice if a party can walk away from the contract. Here, DeShaun was free to accept the Planet Fitness membership or not. The Superior Court did not err in concluding that the release is not unconscionable.

Because the plaintiff was not being forced to sign the contract and a health club contract was not a necessity, the plaintiff could have walked away from the release. Thus the release was not unconscionable.

The next issue was whether the release violated public policy. In Delaware to violate public policy, there must be a statute specifically saying that a release for this activity violates public policy.

The public policy of this state is typically determined by the Delaware General Assembly. No Delaware statute has been identified which bears on the validity of a release of prospective negligence.

The statute must not only look at the issues identified in the release, but must specifically say a release is void for these issues.

However, a general release by its nature releases a party from a potential liability otherwise imposed by law. The public policy involved must be one which disapproves of the release.

The judgement of the lower court was affirmed.

So Now What?

There is very little instructional language in this decision. However, what information is provided is very clear and very easy to understand. Releases in Delaware if they are clear and unequivocal will be upheld in the state.

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 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

#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, Delaware, Health Club, Planet Fitness, Release, Public Policy, Unequivocal,

 


Kwik Tek Recalls Sleds Due to Crash Hazard

Recall Summary

http://www.cpsc.gov/en/Recalls/2016/Kwik-Tek-Recalls-Sleds/

Name of Product: Sleds

Hazard: The front handle bar assembly can break, posing a crash hazard.

Remedy: Replace

Consumers should immediately stop using the recalled sleds and contact Kwik Tek for a free replacement front end.

Consumer Contact: Kwik Tek at 800-624-1297 from 9 a.m. to 5 p.m. MT Monday through Friday or online at yukoncharlies.com and click on “Warranty” in the upper right-hand corner for more information.

Recall Details

Photo’s Available At http://www.cpsc.gov/en/Recalls/2016/Kwik-Tek-Recalls-Sleds/

Units: About 4,200

Description: This recall involves the Hammerhead sleds, which were sold in blue, green, orange and yellow. The front handle bars have a steering system with polycarbonate skis. The rear HDPE skis are attached to the main aluminum frame. The units measure 23 inches wide by 9 inches high by 51 inches deep and weigh about 10 pounds. “Hammerhead Pro” is written on the top of the sled. 

Incidents/Injuries: None reported

Sold at: LL Bean, Yukon Charlie’s nationwide and online at Amazon.com, EMS.com, LLBean.com, SharperImage.com and YukonCharlies.com from June 2014 to June 2016 for about $180.

Importer: Kwik Tek Inc., of Denver, Colo. (subsidiary of Yukon Charlie’s, of Pocasset, Mass.)

Manufactured in: China

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

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

 

 


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