Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.
In an effort to sell services and promote their organization, many trade associations accredit, certify or anoint its members, with various titles, quasi degrees and paper to put on their wall and website. There is always a charge for the program and in many cases; the trade association’s budget is based on selling this program. Many times, these new programs are sold as a cure-all or at least help in risk management or litigation defense.
They are neither. At best, these are training programs; generally, they have little value other than for marketing. Worse, an accreditation can help you lose a lawsuit.
Several trade associations offer this marketing program as a way to show your future clients that you uphold the standards, or whatever of the trade association. (Ignoring the issue that people want to know if you meet their standards, not those of a trade association.) If you pay for the program you will be inspected/reviewed by “trained” members of the association who, then say you have a qualifying program or not. A trade organization will offer the idea that accreditation can provide risk management or better defenses to litigation. Because the program is up to speed on the latest and greatest or at least the tried and true for its industry.
These generally fail for several reasons.
- Because no trade association represents a large segment of the industry and in most cases, they represent less than half of the trade. Granted, the better programs are usually members of the trade association, but that still does give them the clout or numbers needed to dictate how a member should run its business.
- There are dozens of instances where a different way is being used, successfully by other members or non-members of the association. Consequently, the association’s way is proved ineffective or just not the only way.
- State laws and prior litigation have changed the standards, and the trade association has not caught up making their standards look dated.
On top of that, trade associates move by their members. A new idea developed and used by one member needs to float t the surface and be discovered by the group writing the standards. By the time that happens, the standard is written, vetted, reviewed and published several years have passed. You need to react immediately to changes in your industry, not wait for someone to write it down.
Worse no new ideas are created because of fear that the idea will not qualify under the accreditation program creating liability for the member. If you develop a new way to run a program, that is safer but requires less people, you will be liable if you run the program without the required number of people because the association standard requires it. Even if your new idea has that extra person just standing around.
Marketing is not a defense against a lawsuit.
As much as we may wish, showing that an organization may hold itself to a higher standard to prevent litigation or help win a lawsuit, does not work. Standards of care or levels of doing something are not created by trade associations. The issue at trial is whether or not the defendant in litigation is determined by the jury to have met the standard of care proposed by the Expert Witnesses in the trial. Trying does not change that; trying to be good, trying to stay on top of things, trying to be educated does not cause a change.
In reality, it is a minimum two-step process that keeps one from losing in court. The first step is staying current. The second step is staying above the minimum required level of care a jury will accept. However, even these two steps may not be enough with the volume of information that flows today, and the speed which things change. Again the definition of the problem with trade associations and accreditation. The process to create the process is always behind the time curve. As such, the program that received the blessings of the trade association is probably out of date in a courtroom.
Marketing is simply an attempt to influence the decision making of someone. If that person believes that you are a better organization or offer a better program than your competitor, then your marketing was successful. Factors too numerous to discuss and of little relevance to this article go into marketing and how it influences a person’s decision. If you believe the seal on the door or the diploma on the wall going to influence someone to try your program, then take that route, just make sure you understand what you are buying and why.
On a side note, when I had an office, I had art on the walls, Not a single degree or diploma. In twenty years, only one person asked me where my diplomas were. I did not care to look at diplomas; I wanted to look at wildlife and nature scenes. I was spending more time in the office than anyone. Twenty years and only one person cared what diploma I had.
Someone who arrives at your business is going to have higher expectations. The person who sees the promises your marketing makes is going to expect that level or greater service. That expectation will apply, even if the accreditation has nothing to do with the program or the issues of your guests. You are accredited; therefore, I should not have been hurt.
That does not mean you should not tell the world how great you are. It means you must meet the marketing you are promoting.
Marketing also affects and to some extent, shows the world how you think of yourself. A current example is zip lines. For fifty years zip lines were used by the military to train recruits and by movies about the military to thrill viewers. The next twenty years zip lines were used in team building programs as part of a ropes or challenge course. Now zip lines have been used purely as an amusement device. People go out for a day of zip lining like they used to rent go karts or play a round of golf. Your marketing efforts to steer your possible clients back to the idea of team building are going to interfere and have to overcome the general expectations that zip lines are just fun.
Accreditation meets that same issue in the minds of the people coming to your program. Is the certificate on the wall to show me how good you are or on the wall to convince me not to sue? Alternatively, is the certificate proof that you did not take the proper care of me causing my injury. Marketing to cross purposes or marketing to reverse community beliefs is difficult.
Marketing makes Promises that Risk Management has to Pay For.
As stated earlier, the expectations of someone who has researched your diplomas, seals and other marketing accomplishments are going to have a higher expectation that you are not going to injure them. Your commitment to staying current, your efforts to obtain the seal of approval and the paper on the wall are proof, in your guest’s minds, that you are better than your competitors. Better may mean to provide a better program or service. It better definitely means your participants will not be injured.
The American Camp Association (ACA) has an accreditation program that the ACA recognizes for what it is, a marketing program. “ACA Accreditation: Valuable Marketing Tools.” The web page even makes that known. (http://www.acacamps.org/accreditation/marketing). Numerous other instances can be found where accreditation is synonymous with marketing.
- Private Duty Service Expansion through Accreditation and Marketing Excellence
- Importance of Accreditation as a Marketing Strategy
- Use CLE Accreditation as a Marketing Tool
Marketing is not risk management and not good at providing a defense to litigation. The two are opposite in purpose. Marketing is trying to bring people to the program by telling people the program is great and to some extent, safe. If someone is injured, then the program was not safe and the marketing was not true. Having your marketing turn on you while you are a defendant is one of the worst situations to find yourself when involved in litigation. Having your marketing prove that you were a bad operator is the worst.
That does not mean you should not get the best training you can receive in running your business, no matter what the name of the certificate you receive at the end.
Accreditation does have a legal definition and support.
Accreditation from a legal standpoint is defined by Federal Statutes. The Department of Education oversees accreditation of colleges and universities in the United States. A list of accredited college and universities and the agencies that can accredit a college or university can be found at the Department’s website. (There is also a list of those colleges that are no longer recognized.) The department of education also has a statutory scheme for determining how an educational organization will be accredited, which can be found at USC § 1099b. Recognition of accrediting agency or association.
From a legal standpoint, an accredited educational intuition is on that list. It is eligible for federal and state assistance and students of those colleges are eligible for federal financial aid.
Accreditation from any other organization for any other purpose is done to enhance or market the organization seeking the approval and the agency granting the approval. Let’s first look at what this means.
If you are not seeking to offer federal financial aid to your students or receive federal aid, then accreditation can be anything you want. If you want to be accredited, send me $10.00, and I will accredit you. (You have been accredited by James H. Moss) My accreditation has the same legal value and possibly the same marketing value as any other accreditation you can receive. The issues are not. What was done, but what can you hang on your wall and advertise to prospective clients who make you look good? (The $10 will get you a cheap diploma you have to print yourself.)
A good attorney will always look behind the diploma to see what is being covered up. Throw rugs hide spots on carpets, and pictures hide holes on the wall. Attorneys know that paperwork on the wall may be covering up something that the program felt they lacked. In some cases, he or she may only find a hole in the wall. In many cases, he will see that the accreditation is just marketing. Even without an injury that can be associated with a violation of the accreditation requirements, the attorney will use the accreditation against the organization. As the owner proudly runs through his accomplishments on the witness stand, mentioning that his organization is accredited by XYZ trade association the plaintiffs’ attorney will be prepared.
The plaintiff’s attorney will have gone through each of the accreditation requirements that the organization no longer meets or violated and have the owner admit to the problems. If the accreditation is not really based on any real requirements, (like mine), then that will also be pointed out. Either the organization manager or owner will come away looking like they bought the paper to impress guests, or they earned it and then ignored it. A marketing program gone awry.
In many cases, this “accreditation mills” type of accreditation may be probably safer from a legal perspective. There is no list of items or requirements that can be used to show you violated that as an accredited organization, you should not have broken.
You are, in fact, buying marketing when you seek accreditation. This purchase works both ways providing the accrediting agency with value because they can list the organizations that have received accreditation, thus promoting themselves. The organizations that receive accreditation have come to the trade association for its seal of approval boosting the association’s standings the eyes of the industry.
However, accreditation can have a negative side also. Accreditation usually is accompanied by a list of the requirements that must be met. The more the accrediting organization wants to promote itself the longer the list. For an agency that has been accredited, this list then becomes a set of rules which they have agreed to meet. Any failure to meet these rules or regulations cannot be violated. Example:
If the accreditation says you will have one guide per five guests any variation from this at the time of an injury, and the plaintiffs (injured person) attorney has proof that you violated your own rules or standards of operation. In effect, you have provided the plaintiffs with a list of rules which you have agreed not to violate at risk of losing your accreditation.
If accreditation was a true accreditation, it would be removed when an accredited organization fails to continue to meet accreditation. Remember the Department of Education has that list of colleges that no longer are accredited. I’ve never seen a trade association do this (doesn’t mean they don’t).
By providing the plaintiff’s attorney with a list of requirements for accreditation you have also provided the plaintiff’s attorney with the standards that you have breached. The standard is what a reasonable man or organization would do in your situation. Instead of having to dig and hire expects to achieve that information, the plaintiff only has to look up the requirements for accreditation. If the injured guest, the plaintiff’s attorney’s client, was injured when something on that list was not met, then the attorney has proof of a breach of a standard.
It is irritating to see an expert witness report from the plaintiff that goes through each of the points the defendant missed for the diploma hanging on the wall. Most times the plaintiff’s expert witness was trained by the trade association that created the accreditation.
How do you think the Defendant feels watching someone trained by an association he paid money to join and more money to receive their marketing program testify against them?
In the above case, if the accreditation required one guide per five guests and there were twenty guests than the program needs four guides. If one guide stops to look at a flower or slows to tie his shoe, the program now has one guide per 6 or seven guests. If a guest is injured at that moment, the plaintiff’s attorney will argue that the injury could have been prevented with more guides, the standard required a specific number of guides, the defendant organization knew it needed more guides, (it was accredited) and if failed to provide the necessary number of guides.
Accreditation, like any outside review can cost you.
Whenever you have someone come into a program and provide you with a review of your program, that review may come back to haunt you. It is subject to discovery in litigation. Discovery means any document or witness that may have information that may lead to information about the case must be provided to the opposing side. Any document, such as an accreditation review, whether you passed it or not, must be given to the opposing side. Consequently, you want to make sure that any outside review is done in a professional manner and that negative comments and issues are either handled correctly, fixed immediately, or are not part of the written review.
Accreditation has greater value, greater weight for the plaintiff when you have failed to meet the requirements you paid to have reviewed. If the accreditation was so valuable to you, it cost you time and money to receive, how could you, then ignore it without violating the rules?
An example of this that went wrong is the case of Adam Dzialo. (See Marketing is marketing and Risk Management is not marketing, http://rec-law.us/1bPWl1c; Money is important in some lawsuits, but the emotions that start a lawsuit., http://rec-law.us/xbSs4M; Serious Disconnect: Why people sue., http://rec-law.us/wm2cBn, Wow, someone apologized, http://rec-law.us/xEIujw) Adam was enrolled in a summer camp run by Greenfield Community College. The college had just undergone a review to achieve accreditation. The accreditation report stated the number of instructors for the whitewater class was insufficient. Adam suffered a leg entrapment during a whitewater class suffering permanent brain injuries. The number of instructors for the class was below the number required to achieve accreditation, and this became a major issue during the litigation. The review provided in the accreditation process was used by the plaintiff to argue the defendant was negligent.
The defendant was told their program was insufficient, and they ignored that notice. Is the defendant liable?!
Accreditation from the perspective of an advanced degree
If you do not want your program to be marketed as an amusement but something that provides greater benefits, you might align yourself with educational organizations. As such, an “accreditation” may add that aura of validity as an educational organization rather than a summer camp. No matter that most kids would rather go to a fun summer camp than an educational one. (Not that those concepts are totally separate.)
In a courtroom, however, the marketing will be stripped bare and what you are will be laid out in the courtroom. No matter how much money you spend on marketing, if the jury sees you as an amusement park, you are an amusement park, and your marketing program will be exposed as a ruse.
It is easy to strip away an accreditation program. A plaintiff’s lawyer simply goes to the list of developed by the US Department of Education of accreditation agencies and looks for the association that accredited you. As the defendant, you are then in a position of trying to prove the value of your accreditation or diploma on the wall. What did you pay for it and why? What value does it really have? If it is not recognized, isn’t it no more than a marketing program or worse a scam.
The department of education has a statutory scheme for determining how an educational organization will be accredited. USC § 1099b. Recognition of accrediting agency or association. The department of education itself does not accredit educational institutions.
Many times an accrediting association believes that by creating a list of objectives, rules and items to meet the accrediting goals, they have done a good job. In essence, the more rules and paper the better the accreditation. However, as the Department of Education and as most people already know, more does not mean better. The accreditation is based on the “the institution’s mission, goals and objectives, resources and resource allocation, student admission requirements, student support services and the quality of the faculty and educational offerings.” The accreditation is based on the college’s goals as well as the accrediting organizations’ goals.
More may mean very bad.
One of the basic tenets of education is teaching. Helping the student understand, comprehend and be able to use the knowledge gained. One of the tenets of accreditation is the educational organization employs instructors who know the subject matter of what they are teaching but also employs people who have been trained to teach. Very few association accreditation checklists look at whether the instructors have degrees in teaching.
Accreditation at best is just one of many ways an organization can show they strive to be as good as they can and to maintain good practices. It is among a list of things that an organization can do. That other equally important, if not more important items include constant training of employees, maintain professional relationships with trade associations and attending conferences, staying current in the industry. However, the paper on the wall or the seal of approval on the front door, do not prove that this was either effective or provides any protection. The issue is and always has been doing the defendant organization breach a duty of care to the injured plaintiff.
So, what does it mean when you do not meet the standards or accreditation of the trade association when someone was injured?
A legal duty is the duty owed to the plaintiff or what would a reasonable person do in the defendant’s situation. Duty is the first of four steps that the plaintiff must prove to prove negligence. Those steps are:
- Breach of a duty
- Injury proximately caused by the breach of duty.
- Damages from the injury
For the plaintiff to win his or her lawsuit, the plaintiff must prove all four elements of negligence. As you can see, nothing in the definition of negligence is based on the diplomas on the wall or the certificates in a file.
The hardest part of any negligence suit to prove for the plaintiff is, was there a duty and a breach of the duty. Duty is defined as the standard of care of a reasonable person or organization in the same position as the defendant. Normally, the plaintiff and his or her attorney would hire expert witnesses to determine if the duty was breached. However, if there is a written document which the defendant has agreed to abide by in running his or her organization, the written document will be substituted by the plaintiff as the standard of care. Those requirements that you met to be accredited are then transposed by the plaintiff as the standards of care that you agreed to meet. Your agreement to meet those requirements is evidence by you proclaiming them to the guests.
By agreeing to them or by calling them standards, it is a foregone conclusion, almost, that, that is the standard of care you breached.
In effect, once accreditation is obtained, it becomes the level of operation that the organization can never fall below. It becomes a list of requirements the organization must always meet every day.
Accreditation or lack thereof, can also come back to haunt you in another way. Like any misrepresentation, if you claim you have a level of training or skill, and you don’t. That is misrepresentation or fraud. Even if the accreditation has no value as a defense and is only a marketing ploy, failure to have what you claim is fraud, and you are liable for any injury your misrepresentation caused.
A good example of that is you are accredited by XYZ Association on January 1, 2012 for a three-year term. Your accreditation says you have your staff trained in current CPR. In January of 2014, the American Red Cross changes how CPR is taught, and none of your staff are current. In fact, 99% of the people trained in CPR are no longer current. If on January 2, 2014, you have someone have a heart attack on your property who dies, are you liable because you stated and held yourself out as being accredited and yet you were not?
Professional relationships, membership in trade associations, employee training and staying current rarely have the possible kick back that the certificate on the wall may have. Those ways of maintaining professionalism do not come with a list of ways that you have failed to be professional.
Another way that any type of training can come back to haunt an industry is in raising the expectation of the guests of the industry above the normal level of care.
Any value of accreditation that once existed has been diluted by its adoption by numerous other industries. Once the sole domain of higher education, as stated earlier anyone and everyone are now offering accreditation for anything and everything. As such, the term has lost any significance in its value to the public. And that value has always been as a marketing tool rather than a legal defense.
Accreditation to be valuable must occur regularly and be current.
Another major issue is once a program receives accreditation. The program ceases to stay current. The program rests on its laurels on in this case the accreditation. The accreditation provides a false sense of accomplishment and finality, when just the opposite is true.
Staying current in an industry is the only way to stay in the winning column in litigation.
Major Organizations do not offer Accreditation.
Very few trade associations offer accreditation. They know that the cost of keeping the accreditation up to the level it should be along with the risk it subjects its membership too, do not justify the time and expense. Some of the organizations that do not offer accreditation in the outdoor recreation industry are the National Ski Area Association, Boy Scouts of America, Girl Scouts of America and America Outdoors. All of these organizations represent large groups of people. Commercial or business ventures that are serious about their business and represent a large segment of their industry.
Is Accreditation bad?
No accreditation is not a bad thing, unless you are sold on the idea and achieve the accreditation on a mistaken theory that it will assist in either staying out of court or winning in court.
However, like all programs you must know what you are buying. No longer are the days of caveat emptor the rule of the day. That legal pronouncement was created when determining the age of your transportation consisted of looking at the horse’s teeth and walking around the animal. Now days you can look at a car engine for hours and never know if it will run for a day or a lifetime.
The plaintiff is opening your program’s hood and looking forward to seeing if your program runs. You are saying it will because of the paper on the wall or the seal on your website. The trade association went through a checklist of items and issues to hand you a piece of paper. None of those items can guaranty the safety of the guest. All of those items can be used by the guest to prove the program liable and hold you and the trade association accountable.
As it applies to you when you are looking at marketing your program as well as when your clients are looking at your program. If you believe that a marketing program will protect you, you are not studying the program hard enough. Neither will accreditation guaranty the safety of your guests.
- Make sure you know what you are accomplishing before you start.
- Justify why you are going down that route.
- Make sure if your path can be interpreted two ways, that you cover both options to make them good ideas.
- If you find problems fix them immediately.
- You understand the difference between risk management and marketing.
What do you think? Leave a comment.
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© 2018 Recreation Law Recemail@example.com James H. Moss
Only a New York City bike share case create a 34-page opinion on just motions that are filed. The results are all over the board, both the defendants and the plaintiff winning issues on an electronic releasePosted: March 19, 2018
A Ten-page release was upheld as valid. But the process was full of enough holes the plaintiff is still in the game.
Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034
State: New York: United States District Court for the Southern District of New York
Plaintiff: Ronald D. Corwin, et al
Defendant: NYC Bike Share, LLC, et al
Plaintiff Claims: was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice
Defendant Defenses: Release, Assumption of the Risk Immunity
Extremely complicated decision because of the number of claims of the plaintiff and the number of defendants in the case. Each defendant has a different perspective to the defenses.
The decision looks at what happens if you are not wearing a helmet while cycling and you receive a head injury as well as how assumption of the risk and open and obvious defenses are dealt with in a city and against city agencies.
The last issue, is electronic releases in New York City.
The plaintiff had signed up for a year long bike share rental agreement with New York City bike share. He did that online and, in the process, agreed to a release that was ten pages.
He rented a bike one day and was riding on the street. He felt pressure from traffic on his left. A bike share area was coming up on his right and he rode into it. The bike share locations must be on the streets in New York. He continued through the area and at the end hit a concrete wheel stop. He crashed suffering injuries.
Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging that the Citi Bike station in question was improperly designed, in-stalled, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.
He sued everyone there was in New York. Sixteen different law firms are listed in the case. The plaintiff sued:
City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program
NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system
New York City Department of Transportation
Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company
Alta Planning + Design (“APD”)
Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system
Metro Express Services, Inc. (“Metro Express”) installation
Sealcoat USA, Inc. (“Sealcoat”) installation
The lawsuit was in Federal District Court. This opinion is the magistrate’s opinion on the motions filed by the parties. Judge assign non-trial work, such as deciding motions to magistrates. After the magistrate’s opinion is filed the parties have X days to respond/object. The judge then reviews and either adopts, modifies or writes his own opinion.
When the judge rules on the magistrate’s opinion there is usually a written record of the ruling. There are two additional motions the magistrate writes about that are in the record, but no ruling from the court.
Probably the parties settled based on this ruling.
There are a lot of arguments in this 34-page ruling. I’m only going to write about the ones that are important to the outdoor recreation and cycling community.
Analysis: making sense of the law based on these facts.
The first defense discussed here is the electronic release signed by the plaintiff to become a bike share member and rent bikes.
The first issues were plaintiff did not remember signing the release, but did sign up and admitted that he probably agreed to things.
The Bike Share program could not produce a release “signed” by the plaintiff. The produced a release that was in use at the time the plaintiff signed the release and the produced testimony of a former manager to testified that the only way the plaintiff could have become a member and ride bikes was if he had agreed to the release.
The plaintiff also argued the release was Unconscionable.
A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party
The court first went into the issue of whether the release existed and was signed. The release was determined to be a “clickwrap” agreement.
Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of service. “[U]nder a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.”
The court found clickwrap agreements were enforceable.
Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.
However, the presumption of enforceability is based several factors.
The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind them-selves to contract terms
In New York the courts have already set a group of tests to determine if a clickwrap agreement is enforceable.
Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink.
Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” (collecting cases refusing to enforce such agreements).
Special attention should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted).
Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.
Using this set of parameters, the magistrate reviewed the bike Share release and found it was not unconscionable.
The plaintiff then argued the release was not clear, coherent or unambiguous.
To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims.
This ambiguity was based on contradictions between two sections in the ten-page release. However, the court found there was no ambiguity.
Then the plaintiff argued the release was void on public policy grounds.
The plaintiff raised three arguments on why the release violated public policy. It violated New York City Administrative Code, it violated New York General Obligations law § 5-326 and it violated the cities common law duty to maintain roads.
The court found New York City administrative code could not serve as a basis for invalidating a release.
New York General Obligations law § 5-326 is the statute that restricts on who can use a release. The language of the statutes says that “operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” can’t use a release. Since the bike share program was not a facility, the release was valid.
Finally, the common law duty the city of New York had to maintain the roads did not violate the release because “…the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads.”
The release was not void based on public policy considerations.
However, the release did not apply to the city of New York because that would be contrary to public policy.
In the end the negligence claims of the plaintiff were denied because of the release. The gross negligence claims were still valid. Under New York Law and the law of most states, claims for gross negligence cannot be stopped by a release.
The next issue was how the fact the plaintiff did not wear a helmet, at the time of his injury, would be used in the case.
The defendants argued that the plaintiff not wearing a helmet should be used by the defendants to show the plaintiff was liable for his injuries, (that the plaintiff was comparative negligence), to prove assumption of the risk and to mitigate the damages he incurred.
The plaintiff argued that since there was no statutory duty to wear a helmet, then the defendants could not make their arguments.
The court applied the same rationale to wearing a bike helmet as the courts had done in New York to wearing a seat belt in a car crash. Not wearing a bike helmet, it could not be used to prove liability on the part of the plaintiff but it could be used to reduce damages.
…the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how dam-ages, if any, should be assessed.
The defendant then argued they should have qualified immunity on the plaintiff’s claims of failing to provide a bike helmet to him while renting a bike.
Immunity is granted by statute to governments and their agencies for the decisions they make. As long as the decisions are not intentional and thought out the immunity applies. The immunity then stops the courts from reviewing those decisions as long as the decisions are made under the guidelines the law has set out.
Although the city may use the fact the plaintiff did not wear a helmet to reduce any damages the city might owe to the plaintiff. The plaintiff cannot use that argument to say the city was liable for not providing helmets. Nor can the plaintiff argue the his not wearing a helmet was unreasonable and did not breach a duty of care.
Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.
Here those guidelines were made by the city in its decision to not include helmets in the rentals of the bikes.
He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.
Assumption of the Risk
The defendants moved for summary judgment because the plaintiff assumed the risk of his injuries while riding a bike. Primary assumption of the risk is defined as:
In voluntarily undertaken recreational activities, the duty of a defendant is “to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.
The risks were also identified in the release the plaintiff signed and which had been accepted by the court.
Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.”
However, the court rejected the defense because the plaintiff at the time of his injury was not engaged in a sporting activity.
Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her con-sent to the dangers inherent in the activity may reasonably be inferred.” Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.
So, assumption of the risk only applies to recreation and sports in New York? If you are walking down a sidewalk and see a hole in the sidewalk, on your way to work you don’t assume the risk if you fall into the hole?
The next argument by the defendants are not liable because the danger the plaintiff encountered was open an obvious.
The Open and Obvious defense seems fairly simple. If the thing or condition that injured the plaintiff was open and obvious then the plaintiff cannot sue for his injuries. It is very similar to an assumption of the risk defense.
A defendant has “no duty to protect or warn against an open and obvious condition which is not inherently dangerous. Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion
The defendants argue the concrete wheel stop was open and obvious.
…because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.
The plaintiff’s argument, based on the testimony of his expert witness was the wheel stop was not open and obvious because it was too big and was located in the travel lane had been camouflaged, in the way it was put in and painted.
The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.”.
How something could be too big and then not be open and obvious is confusing. This was enough for the court to deny motion for summary judgment based on the open and obvious theory.
Gross Negligence of the Bike Share defendant
Gross negligence under New York law is
…conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” “In order to establish a prima facie case in gross negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.
The plaintiff’s expert opined that the defendants ignored sound engineering practices when creating and installing the wheel stop and that it was foreseeable that the injuries would occur when the wheel stop was placed in the cycling path. Based on that language, the court found that the actions of the defendants could be defined as gross negligence.
The defendant won most of the decisions, however the plaintiff won enough and won significant ones that allowed the litigation to continue.
So Now What?
The final paragraph of the decision has a review of all decisions for the plaintiff and the defendants if you would like to keep a tally. However, there are several decisions concerning plaintiffs that were not reviewed here because they had no relationship to outdoor recreation or the legal issues commonly faced in outdoor recreation.
Obviously, the injuries to the plaintiff are significant to bring such forces to this litigation to justify this much work. The amount of effort put into prosecuting a case for a plaintiff can SOMETIMES be an indication of the damages to the plaintiff when those damages are not identified in the decision.
More importantly, the legal issues of suing New York City and its agencies are far more complex then found in most cities.
There are some interesting points worth noting. You could guess that the judge thought a ten-page release was long since she pointed it out. However, you cannot argue that your release is too long. Especially since electronically they do not have a length that is measured so easily.
Not wearing a helmet can be an issue in cycling and possibly skiing, even though the effectiveness of wearing one can be disputed. I suspect the next step would be to find a helmet expert by the plaintiff to argue that a helmet would not have prevented the damages the plaintiff received and the defendants will find an expert to argue the opposite.
The failure to provide proof that the plaintiff signed the release was overcome. However, design your system so you don’t have to jump through these hurdles. Crate a system that matches the signing to the credit card or other way of showing that on this date at this time the person entered his name and address, credit card number and clicked on this button saying he accepted the release. Then you add, his credit card would not have been charged unless he agreed to the release.
If you are designing bike share locations, do so in a way that people on bikes can assume they can ride through them.
Copyright 2018 Recreation Law (720) 334 8529
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Remedy: Replace. Consumers should immediately stop using the recalled helmets and contact Louis Garneau for instructions on how to receive a free replacement helmet.
Consumer Contact: Louis Garneau at 800-448-1984 from 8 a.m. to 6 p.m. ET Monday through Friday or online at http://www.garneau.com/us/en/ and click on “Recall Notice” at the bottom of the page for more information.
Description: This recall involves Louis Garneau Course Helmets with model number LG1261 printed on the inside of the helmet. “Garneau,” “Course” and “LG” are printed on both sides of the recalled bicycle helmets. They were sold in matte black and matte fluo yellow. The manufacturer’s date and serial number are printed on a sticker inside the helmet.
Only lot and serial numbers listed below are included in the recall.
Helmet Lot/ Manufacturer’s Date/ Serial Number Range available here: https://www.cpsc.gov/Recalls/2018/Louis-Garneau-Recalls-Bicycle-Helmets-Due-to-Risk-of-Head-Injury
Incidents/Injuries: None reported
Sold At: Authorized bicycle dealers nationwide from December 2015 through January 2018 for between $180 and $240.
Importer: Louis Garneau USA Inc., of Derby, Vt.
Manufacturer: Strategic Sports Limited, 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:
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.
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
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