Aspen Skiing Co is being studied by the Harvard University Business School because of its corporate activism on behalf of the environment.

Posted: October 19, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Aspen Skiing Co., is an active corporate environmental group and its actions are being studied as a model for other corporations.

Aspen Skiing Co., had joined Greenpeace and the Natural Resources Defense Council (NRDC) in a lawsuit to force Kimberly Clark to change the way Kleenex are made. The lawsuit alleged the way Kimberly Clark made Kleenex was destructive to the environment and contributed to climate change.

The study is looking at the decisions made by Aspen Skiing Co., as it balanced the value of joining the lawsuit versus angering guests.

Changes made by Kimberly Clark allowed Aspen Skiing Co to drop out of the lawsuit, feeling the changes were significant. The NRDC kept suing and eventually won the suit which allowed the EPA to regulate to regulate greenhouse gas emissions.

This took a lot of guts on the part of Aspen Skiing Co, thanks and good job!

See Aspen Skiing Co. Kleenex boycott intrigues Harvard Business school studying Skico environmental actions.

What do you think? Leave a comment.

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Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16

Posted: October 18, 2010 | Author: Recreation Law | Filed under: Legal Case, Release (pre-injury contract not to sue), Utah | Tags: Olympics, Utah Winter Sports Park, UWSP | 2 Comments

James Pearce, Plaintiff and Appellant, v. Utah Athletic Foundation, dba Utah Winter Sports Park, and Oscar Podar, a foreign individual or company, Defendants and Appellees.

No. 20061030

SUPREME COURT OF UTAH

2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16

February 12, 2008, Filed

SUBSEQUENT HISTORY: Released for Publication April 3, 2008

PRIOR HISTORY: [***1]

Third District, Silver Summit. The Honorable Bruce C. Lubeck. No. 040500322.

COUNSEL: Fred R. Silvester, Spencer C. Siebers, Salt Lake City, for plaintiff.

Phillip S. Ferguson, Karra J. Porter, Ruth A. Shapiro, Salt Lake City, for defendants.

JUDGES: PARRISH, Justice. Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish’s opinion.

OPINION BY: PARRISH

OPINION

[**762] PARRISH, Justice:

INTRODUCTION

[*P1] In 2003, James Pearce suffered a back injury while riding a bobsled at the Utah Winter Sports Park in Park City, Utah. Pearce brought ordinary negligence and gross negligence claims against the Utah Athletic Foundation (“UAF”), which owns and operates the bobsled track. The district court granted summary judgment to UAF on the ordinary negligence claim because Pearce, prior to riding the bobsled, had signed a liability waiver in which he released any negligence claim against UAF. The district court also granted summary judgment to UAF on the gross negligence claim, holding that Pearce had not presented sufficient evidence to show that UAF’s conduct rose to the level of gross negligence. Pearce appeals both holdings. We affirm the district court’s grant of summary judgment on [***2] the ordinary negligence claim but reverse the district court’s grant of summary judgment on the gross negligence claim.

FACTUAL BACKGROUND

[*P2] UAF oversees the Olympic legacy venues used during the 2002 Winter Olympics, including the Utah Winter Sports Park (“Sports Park”) in Park City, Utah. The Sports Park includes a bobsled track, which is owned and operated by UAF. The bobsled track, which was built by the state of Utah for the 2002 Olympics, was completed in 1996, and ownership and operations were [**763] then transferred to the Salt Lake Organizing Committee (“SLOC”). In 1997, the track was opened to the public through the Public Ride Program (“PRP”). UAF took over the ownership and operation of the bobsled track following the 2002 Olympics and continues to offer the PRP. Besides the Park City track, only two other bobsled tracks are located in North America: one in Lake Placid, New York, and the other in Calgary, Alberta, Canada. The Lake Placid and Calgary tracks also operate a PRP.

[*P3] To be qualified and approved for Olympic use, a bobsled track has to be designed to specific international standards. One design criterion limits the amount of time that a bobsled athlete can be subjected to [***3] more than five Gs. The Federation Internationale de Bobsleigh et de Tobogganing (“FIBT”) is the international organization which ensures that a bobsled track’s design and construction meet the criteria. The FIBT conducts various measurements and tests to ensure that the standards are met. The Park City bobsled track met the FIBT standards and was used in the 2002 Winter Olympics. When UAF took over ownership and operation of the track following the Olympics, it did not do any testing independent of the testing conducted by the FIBT and the other entities involved with the construction, design, engineering, and certification of the track.

[*P4] The bobsleds used in the PRP are configured for a driver and three passengers. UAF employs professional, World Cup-level bobsled drivers for its PRP. The PRP sleds are modified from competition sleds. One modification is that the PRP sleds allow the driver to control the braking; in competition sleds, the fourth-seat rider controls the braking. Another modification is that the PRP sleds have handles for the passengers to hold during the bobsled ride.

[*P5] On February 27, 2003, Pearce went with his son to the Sports Park to ride the bobsled. Pearce was fifty-nine [***4] years old at the time. Before riding the bobsled, Pearce signed a release of liability form. ¹ According to Pearce, he was not told what the document was, nor was he told that by signing it he was releasing the Sports Park from liability for injuries caused by its own negligence. Pearce understood that it was a release but did not fully understand the extent of the release. Pearce and the other patrons were given an orientation lasting approximately fifteen minutes. During the orientation, the patrons were told that they would experience four Gs during the ride. Pearce, a mechanical engineer by trade, understood what a G was but did not fully understand the effect that four Gs could have on his body.

1 The critical part of the release in this case–the sentence in paragraph 3 that releases UAF from its own negligence–states in full:

TO THE FULLEST EXTENT PERMITTED BY LAW, I HEREBY RELEASE, WAIVE, COVENANT NOT TO SUE, AND DISCHARGE THE UAF AND ALL OF ITS TRUSTEES, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, VOLUNTEERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “RELEASEES”) FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, AND CAUSES OF ACTION WHATSOEVER ARISING OUT OF OR RELATED TO ANY [***5] LOSS, DAMAGE, OR INJURY, INCLUDING DEATH, THAT MAY BE SUSTAINED BY ME/MY MINOR CHILD OR LOSS OR DAMAGE TO ANY PROPERTY BELONGING TO ME/MY MINOR CHILD, WHETHER CAUSED BY THE NEGLIGENCE OF RELEASEES OR OTHERWISE, ARISING OUT OF OR RELATED TO MY/MY MINOR CHILD’S USE OF THE SPORTS FACILITIES OR PARTICIPATION IN THE SPORTS.

[*P6] The Sports Park managers knew that the g-forces were more pronounced for passengers in the fourth seat of the bobsled than for those in the other seats. Pearce, who was assigned to sit in the fourth seat, was instructed to sit back away from his son–who was seated in the third seat–and to lean forward and grab the handles installed in the modified sled. The Sports Park’s general manager testified that these instructions were given to fourth-seat riders to minimize their risk of injury, though he admitted that he did not know how such positioning minimized the risk. One of Pearce’s expert witnesses, Dr. Paul France, testified by affidavit that the Sports Park’s positioning actually increased the risk of spinal injury to fourth-seat riders. Dr. France opined that the risk of spinal injury could have been reduced by having fourth-seat riders sit more upright, push off [***6] the handles, and not flex the spine. [**764] During Pearce’s ride, the g-forces caused the L1 vertebrae of his spine to shatter, propelling a bone fragment toward his spinal column.

PROCEDURAL HISTORY

[*P7] Pearce brought suit against UAF in 2004. He originally claimed ordinary negligence but later amended his complaint to include gross negligence. During the course of the litigation, Pearce presented several allegations to support his negligence claims, including (1) the Sports Park did not obtain or review any of SLOC’s accident reports for the years of 1997 through 2002; (2) the Sports Park knew that the fourth seat exposed the rider to the greatest risk of injury but did not warn fourth-seat riders of the increased danger or undertake any measures to mitigate the risks of the fourth seat; (3) the Sports Park instructed fourth-seat riders to sit in a position that increased the risk of spinal injury; (4) the Sports Park failed to warn Pearce that three riders had suffered serious spinal injuries–including compression fractures–during the prior three months; (5) the Sports Park knew that riders had suffered back injuries but never attempted to find out how these back injuries were being caused [***7] or what could be done to minimize the risk of back injury; (6) the Sports Park never measured the g-forces on the fourth rider and never did any evaluation of the effect of the g-forces on public riders; (7) Sports Park management reviewed injury reports only at the end of the season and were therefore unaware of the reported spinal injuries contained in the injury reports; and (8) the Sports Park did not conduct any of its own testing to determine the inherent dangers of the ride and how to minimize those dangers.

[*P8] Following some discovery, UAF moved for summary judgment. UAF argued that the liability release protected it from any action for ordinary negligence and that, in view of the undisputed facts of the case, its conduct did not rise to the level of gross negligence. After briefing and oral argument on the motion, the district court issued its ruling and order.

[*P9] The district court first ruled in favor of UAF on the gross negligence claim, stating that “the court does not believe plaintiff has set forth sufficient evidence of gross negligence” and that “[t]here is no credible evidence of gross negligence as a matter of law.” The court held that the Sports Park’s conduct would, [***8] at most, amount to ordinary negligence.

[*P10] The court then ruled that Pearce had waived any ordinary negligence claim by signing the liability release. The court held that the release was valid, enforceable, and not against public policy. Thus, the court ultimately granted UAF’s motion for summary judgment on Pearce’s ordinary negligence claim because he had assumed the risks of the bobsled ride, including any negligent conduct of the Sports Park.

[*P11] Pearce now appeals the district court’s grant of summary judgment on both negligence claims. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).

ISSUES AND STANDARD OF REVIEW

[*P12] There are two issues on appeal in this case: (1) whether the district court correctly held that the release of liability signed by Pearce barred his ordinary negligence claim against UAF, and (2) whether the district court correctly granted summary judgment to UAF on Pearce’s gross negligence claim.

[*P13] [HN1] “‘[S]ummary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” Swan Creek Vill. Homeowners Ass’n v. Warne, 2006 UT 22, P 16, 134 P.3d 1122 (quoting Norman v. Arnold, 2002 UT 81, P 15, 57 P.3d 997). [***9] A district court’s decision to grant summary judgment is reviewed for correctness, with no deference afforded to the district court. Crestwood Cove Apts. Bus. Trust v. Turner, 2007 UT 48, P 10, 164 P.3d 1247. “When we review a district court’s grant of summary judgment, ‘we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.'” Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, P 2, 167 P.3d 1011 [**765] (quoting Carrier v. Salt Lake County, 2004 UT 98, P 3, 104 P.3d 1208).

ANALYSIS

I. ORDINARY NEGLIGENCE

[*P14] In two recent cases, we reaffirmed our position with the majority of states that [HN2] people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others. See Rothstein v. Snowbird Corp., 2007 UT 96, P 6, 175 P.3d 560; Berry v. Greater Park City Co., 2007 UT 87, P 15, 171 P.3d 442 (“[Utah’s] public policy does not foreclose the opportunity of parties to bargain for the waiver of tort claims based on ordinary negligence.”). We also reaffirmed our position that preinjury releases are not unlimited in power and can be invalidated in certain circumstances. Three such limitations are relevant to this [***10] case: (1) releases that offend public policy are unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560; (2) releases for activities that fit within the public interest exception are unenforceable, Berry, 2007 UT 87, P 16, 171 P.3d 442; and (3) releases that are unclear or ambiguous are unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560. We now analyze each of these limitations and conclude that none is applicable here; therefore, the preinjury release is valid and enforceable.

A. The Preinjury Release Is Not Contrary to Public Policy

[*P15] We have long held that preinjury releases must be compatible with public policy. See Rothstein v. Snowbird Corp., 2007 UT 96, P 7, 175 P.3d 560 (citing Pugmire v. Or. Short Line R.R., 33 Utah 27, 92 P. 762 (Utah 1907)). In Hawkins v. Peart, we relied on public policy gleaned from Utah law in holding that a preinjury release signed by a parent is not enforceable against a minor child. 2001 UT 94, PP 10-13, 37 P.3d 1062. In Rothstein, we relied on the legislature’s statement of public policy in Utah’s Inherent Risks of Skiing Act to conclude that a ski resort cannot enforce a preinjury release against a skier whose injuries may have resulted from the negligence of the ski resort. 2007 UT 96, P 20, 175 P.3d 560. In [***11] the present case, however, Pearce has not presented, nor has this court found, a public policy that would render unenforceable a preinjury release between a public bobsled ride operator and an adult bobsled rider. Thus, we conclude that the preinjury release signed by Pearce is not contrary to public policy.

B. The Preinjury Release Is Not Invalid Under the Public Interest Exception

[*P16] [HN3] It is a “general principle of common law that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty.” Berry v. Greater Park City Co., 2007 UT 87, P 12, 171 P.3d 442 (internal quotation marks and citations omitted). Thus, a preinjury release that does not violate public policy is valid and enforceable unless it meets the public interest exception. Id. (stating that a preinjury release may be invalidated if it “attempts to limit liability for activities in which there is a strong public interest”).

[*P17] In Berry, we adopted the standard set out in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963), [HN4] as “the traits of an activity in which an exculpatory provision may be invalid” [***12] under the public interest exception. Berry, 2007 UT 87, P 15, 171 P.3d 442. The six Tunkl guidelines are:

“[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [**766] [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk [***13] of carelessness by the seller or his agents.”

Id. (quoting Hawkins v. Peart, 2001 UT 94, P 9 n.3, 37 P.3d 1062).

[*P18] In Berry, we applied the six Tunkl guidelines to a skiercross race and determined that skiercross racing did not meet the public interest exception. Id. PP 17-24. In the present case, we could again apply the guidelines in order to conclude that bobsledding does not meet the public interest exception, but we go one step further. [HN5] We now join other states in declaring, as a general rule, that recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.

[*P19] In California, where the Tunkl test was formulated, appellate courts have applied the Tunkl factors to a wide variety of recreational activities and have consistently concluded that such activities do not fit within the public interest exception. See, e.g., Randas v. YMCA of Metro. Los Angeles, 17 Cal. App. 4th 158, 21 Cal. Rptr. 2d 245, 247 (Ct. App. 1993) (swimming); Guido v. Koopman, 1 Cal. App. 4th 837, 2 Cal. Rptr. 2d 437, 439-40 (Ct. App. 1991) (horseback riding); Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal. Rptr. 299, 305-06 (Ct. App. 1988) (scuba [***14] diving); Kurashige v. Indian Dunes, Inc., 200 Cal. App. 3d 606, 246 Cal. Rptr. 310, 313 (Ct. App. 1988) (dirt bike racing); Okura v. U.S. Cycling Fed’n, 231 Cal. Rptr. 429, 430-32, 186 Cal. App. 3d 1462 (Ct. App. 1986) (bicycle racing); Hulsey v. Elsinore Parachute Ctr., 168 Cal. App. 3d 333, 214 Cal. Rptr. 194, 199-200 (Ct. App. 1985) (parachute jumping). When faced with public interest challenges to preinjury releases for recreational activities, California appellate courts no longer need to go through a Tunkl analysis; instead, the courts rely on the general rule–established through years of applying the Tunkl test–that “[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” Benedek v. PLC Santa Monica, LLC, 104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197, 202 (Ct. App. 2002); see also Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr. 2d 781, 791 (Ct. App. 1993) (“[R]ecreational sports do not constitute a public interest under Tunkl.“).

[*P20] California courts are not alone in refusing to invalidate preinjury releases in recreational activities under the public interest exception. Courts across the country that have applied the public interest exception to preinjury releases, whether under [***15] the Tunkl factors or under some other test, have consistently held that recreational activities do not implicate public interest concerns and, therefore, that preinjury releases for recreational activities are not invalid under the public interest exception. See, e.g., Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (distinguishing “businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public” from businesses that implicate the public interest under the Tunkl factors); Seigneur v. Nat’l Fitness Inst., Inc., 132 Md. App. 271, 752 A.2d 631, 641 (Md. Ct. Spec. App. 2000) (“[C]ourts from other jurisdictions almost universally have held that contracts relating to recreational activities do not fall within any of the categories that implicate public interest concerns.”); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 925-26 (Minn. 1982) (“Courts from other jurisdictions generally have held contracts relating to recreational activities do not fall within any of the categories where the public interest is involved.”); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730, 733 (Tenn. Ct. App. 2005) [***16] (“[M]any jurisdictions have recognized that . . . recreational sporting activities are not activities of an essential nature which would render exculpatory clauses contrary to the public interest.”); Milligan v. Big Valley Corp., 754 P.2d 1063, 1066 (Wyo. 1988) (“[C]ontracts relating to recreational activities do not fall within any of the categories [**767] . . . where the public interest is involved.”).

[*P21] We now join the majority of courts by adopting the rule that preinjury releases for recreational activities are not invalid under the public interest exception. Thus, we conclude that the preinjury release in this case is not invalid under the public interest exception because bobsledding is a recreational activity.

C. The Preinjury Release Is Not Ambiguous

[*P22] [HN6] Preinjury releases, to be enforceable, must be “communicated in a clear and unequivocal manner.” Berry v. Greater Park City Co., 2007 UT 87, P 15 n.2, 171 P.3d 442; see also Hawkins v. Peart, 2001 UT 94, P 5, 37 P.3d 1062 (stating that preinjury releases “require a clear and unequivocal expression of the intent to indemnify or release”).

To be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to [***17] combine the elegance of a trust indenture with the brevity of a stop sign. . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.

Nat’l & Int’l Bhd. of St. Racers, Inc. v. Superior Court, 264 Cal. Rptr. 44, 47, 215 Cal. App. 3d 934 (Ct. App. 1989).

[*P23] Pearce argues that the liability waiver is invalid as ambiguous because the 111-word sentence in paragraph 3 does not clearly and unequivocally inform riders that they are releasing UAF of any injury caused by UAF’s ordinary negligence. We disagree. Although the sentence at issue is long and contains some “legalese,” it is not unclear or equivocal. See Freund v. Utah Power & Light Co., 793 P.2d 362, 371 (Utah 1990) (holding that a 97-word sentence in a commercial indemnification agreement clearly and unequivocally showed that the licensee agreed to indemnify the licensor from liability that could arise from the licensor’s negligence, even though the word “negligence” was not included in the sentence). The sentence conceivably could have been written more concisely or plainly, but that does not render it unclear or ambiguous. The sentence, in clear and unequivocal [***18] language, releases UAF from any claim “whether caused by the negligence of [UAF] or otherwise.” Although not perfect, the release is sufficiently clear. Thus, we affirm the district court’s conclusion that the preinjury release is valid and enforceable because it is not unclear, equivocal, or ambiguous.

II. GROSS NEGLIGENCE

[*P24] [HN7] Gross negligence is “the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Berry v. Greater Park City Co., 2007 UT 87, P 26, 171 P.3d 442 (internal quotation marks and citations omitted). “Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.” Id. Summary judgment in negligence cases, including gross negligence cases, is “inappropriate unless the applicable standard of care is fixed by law, and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.” Id. P 27 (internal quotation marks and citations omitted). When reviewing grants of summary judgment in negligence cases, “we have consistently followed the principle that summary judgment [***19] is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” Id. (internal quotation marks and citations omitted).

[*P25] In Berry, a competitive skier brought a gross negligence claim against a ski resort for negligently designing and constructing a skiercross course. Id. PP 6-7. The district court granted the ski resort’s motion for summary judgment on the gross negligence claim because the plaintiff had “failed to present evidence sufficient to place in dispute the issue of whether [the ski resort] had designed and built the skiercross course with . . . gross negligence.” Id. P 7. We concluded that the district court improperly granted summary judgment because the standard of care for designing and constructing skiercross courses was not “fixed by law,” [**768] and [HN8] “where a standard of care is not ‘fixed by law,’ the determination of the appropriate standard is a factual issue to be resolved by the finder of fact.” Id. P 30 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989)). Without the applicable standard of care, it was impossible for the district court to determine the degree to which the ski resort’s conduct [***20] deviated from the standard of care–“the core test in any claim of gross negligence.” Id. Thus, we held that a district court cannot properly grant a motion for summary judgment regarding a gross negligence claim unless there is “an identified, applicable standard of care to ground the analysis.” Id.

[*P26] The present case is very similar to Berry. Pearce brought a gross negligence claim against UAF, and the district court granted summary judgment for UAF because Pearce had not “set forth sufficient evidence of gross negligence.” However, there is no standard of care fixed by law regarding the operation of public bobsled rides upon which the district court could have based its analysis of gross negligence. ² Indeed, the district court itself noted that the expert witnesses in the case “[did] not opine on the standard of care in such an industry.” Without an identified, applicable standard of care, it was error for the district court to rule on summary judgment that, as a matter of law, Pearce could not show gross negligence. We therefore hold that the district court improperly granted summary judgment to UAF on Pearce’s gross negligence claim, and we therefore reverse and remand to the district [***21] court.

2 In his brief, Pearce stated that a standard of care has been established by Utah law: “the care required of amusement ride operators is the care that reasonably prudent persons would exercise under the circumstances . . . commensurate with the dangers and risks created by the ride.” Lamb v. B & B Amusements Corp., 869 P.2d 926, 931 (Utah 1994). Besides the question of whether the bobsled ride is an “amusement ride,” the problem with this standard is that it simply states the normal “reasonably prudent person” standard that applies in any negligence case; it does not state more specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride. See Restatement (Second) of Torts § 285, cmt. d (stating that the reasonable person standard “is, without more, incapable of application to the facts of a particular case”). In order to determine what a reasonable bobsled ride operator would do, the finder of fact would likely need to hear testimony from expert witnesses before it could determine the operator’s deviation from the standard. See Berry, 2007 UT 87, P 30, 171 P.3d 442.

CONCLUSION

[*P27] We hold that Pearce’s ordinary negligence claim [***22] is barred by the preinjury release that he signed because the release is not against public policy, it does not meet the public interest exception, and it is clear, unequivocal, and unambiguous. Thus, we affirm the district court’s grant of summary judgment to UAF on Pearce’s ordinary negligence claim.

[*P28] We reach the opposite conclusion, however, with respect to Pearce’s gross negligence claim. We hold that the district court erred in granting summary judgment to UAF on Pearce’s gross negligence claim without identifying the applicable standard of care. We therefore reverse and remand to the district court for proceedings consistent with this opinion.

[*P29] Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish’s opinion.

Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

Posted: October 18, 2010 | Author: Recreation Law | Filed under: Release (pre-injury contract not to sue), Utah | Tags: bob sled, Olympic, Utah Winter Sports Park, UWSP | Leave a comment

The decision states that under Utah law gross negligence must always be decided by the trier of fact.

Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16

The plaintiff in this case was injured while riding as a passenger on a four man bobsled at the Utah Winter Sports Park (UWSP). The bobsled ride caused the plaintiff’s vertebrae “to shatter, propelling a bone fragment toward his spinal column” from the g-force. The plaintiff sued for negligence and gross negligence. The UWSP raised the defense of release. The trial court granted the defendant’s motion for summary judgment for both simple or ordinary negligence and gross negligence.

The plaintiff in making his allegations listed ways the UWSP failed to take care of its riders:

1. The Sports Park did not obtain or review any of SLOC’s (Salt Lake Organizing Committee the parent of the UWSP) accident reports for the years of 1997 through 2002;

2. The Sports Park knew that the fourth seat exposed the rider to the greatest risk of injury but did not warn fourth-seat riders of the increased danger or undertake any measures to mitigate the risks of the fourth seat;

3. The Sports Park instructed fourth-seat riders to sit in a position that increased the risk of spinal injury;

4. The Sports Park failed to warn Pearce that three riders had suffered serious spinal injuries–including compression fractures–during the prior three months;

5. The Sports Park knew that riders had suffered back injuries but never attempted to find out how these back injuries were being caused or what could be done to minimize the risk of back injury;

6. The Sports Park never measured the g-forces on the fourth rider and never did any evaluation of the effect of the g-forces on public riders;

7. Sports Park management reviewed injury reports only at the end of the season and were therefore unaware of the reported spinal injuries contained in the injury reports; and

8. The Sports Park did not conduct any of its own testing to determine the inherent dangers of the ride and how to minimize those dangers.

Although individually most of the eight allegations raise concerns individually the allegations do not rise to the level of negligence. However, together they show a pattern of not caring about its patrons or how they suffered their injuries, which might prove gross negligence.

The court set forth the three ways under Utah’s law that a release would not be upheld by the courts.

(1) releases that offend public policy are unenforceable;

(2) releases for activities that fit within the public interest exception are unenforceable;

(3) releases that are unclear or ambiguous are unenforceable,

Under Utah’s law, “offend public policy” means there is a law or policy of the state that would prevent the use of a release. Here the court ruled that the release for a bobsled run were not against public policy.

Public service means providing a service or a necessity to the public such that without the service or necessity a person would not be able to live. The easiest way to understand this is to understand the types of services or necessities in the category. Usually utilities such as gas, electric or phone service are defined as public services. They are items that are needed in this day and age to live.

The court, after the analysis of the above public policy and public service arguments, made the pronouncement that as a general rule “recreational activity do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.”

That is a great legal statement that can be relied upon by all recreational programs and businesses in the state of Utah for the future.

Ambiguity under Utah’s law requires that the release be “communicated in a clear and unequivocal manner.” A release is not ambiguous if it is a “clear and unequivocal expression of the intent to indemnify or release.”

Utah’s courts have found areas where releases are not enforceable. Releases cannot be used to stop a claim by a minor. Releases can also not be used to stop claims by a skier from claims based on the negligence of the ski area.

In Hawkins v. Peart, we relied on public policy gleaned from Utah law in holding that a preinjury release signed by a parent is not enforceable against a minor child. In Rothstein v. Snowbird Corp, we relied on the legislature’s statement of public policy in Utah’s Inherent Risks of Skiing Act to conclude that a ski resort cannot enforce a preinjury release against a skier whose injuries may have resulted from the negligence of the ski resort.

The Rothstein case is interesting because the public policy exception was carved out of the language of the statute that was created to provide protection against lawsuit in the ski industry.

The court in this decision, then defined gross negligence under Utah law.

Gross negligence is “the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” “Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”

Unless the standard of care is fixed by law, based on this definition, a claim of gross negligence cannot be dismissed by a motion for summary judgment. Meaning, claims of gross negligence must be decided by the trier of fact. The trier of fact is normally the jury, and if there is no jury, the judge.

So?

Gross negligence is rarely dismissed by a motion for summary judgment. Unless the facts in front of the judge are void of any issue lending any argument to gross negligence, most courts are going to allow a gross negligence claim to continue.

In Utah, the chances of having a gross negligence claim dismissed are even higher, unless there is a law, all ready in force or a decision by a court that specifically defines gross negligence and the facts of the case do not rise to the legal level.

Here the eight allegations raised against the UWSP could possibly lead to a claim of gross negligence and the totality of the eight may support a claim for gross negligence.

If you have injuries, you need to determine, if possible what caused those injuries. If you don’t know what causes the injuries, or you cannot determine what causes injuries you need to inform your guests of those specific issues. The best way to do that would be in a release. In the release list, the risks, you cannot control as one of the specific issues or risks the signor of the release will assume.

Another red flag set forth in the facts of this case is telling people to do something as a safety measure and not having any idea why you are doing it. Worse, the plaintiff’s expert said that the safety measure actually increased the chance of injury in this case.

Except for the exceptions under Utah’s law already carved out by the courts, a release for recreational activities can be used to stop a claim for ordinary or simple negligence. Overall a good decision for Utah and not outside of the general framework of release law in the United States.

What do you think? Leave a comment.

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The Wilderness Medical Society Wilderness & Environmental Medicine Journal Vol 21 No 2 2010 Selected Table of Contents

Posted: October 15, 2010 | Author: Recreation Law | Filed under: First Aid | Leave a comment

If you are not a member of the Wilderness Medical Society, and you are in the field of Outdoor Recreation you should be.

Editorial: In Tribute to Charlie Houston
Editorial: Search and Rescue Activity on Denali, 1990 to 2008
Editorial: Sidecountry Rescue—Who Should Respond to Ski Resort Out-of-Bounds Rescues?
Original Research: Search and Rescue Activity on Denali, 1990 – 2008
Original Research: End-Tidal Partial Pressure of Carbon Dioxide and Acute Mountain Sickness in the First 24 Hours Upon Ascent to Cusco Peru (3326 meters)
Original Research: Large Snake Size Suggests Increased Snakebite Severity in Patients Bitten by Rattlesnakes in Southern California
Case Report: Frostbite in a Sherpa
Brief Report: Detection and Management of Hypothermia at a Large Outdoor Endurance Event in the United Kingdom
Review Article: Wilderness Medical Society Consensus Guidelines for the Prevention and Treatment of Acute Altitude Illness
Original Research: Adverse Encounters With Alligators in the United States: An Update
The Wilderness Instructor: Advanced Wilderness Life Support Education Using High-Technology Patient Simulation

The article Wilderness Medical Society Consensus Guidelines for the Prevention and Treatment of Acute Altitude Illness is very important to anyone working in any alpine environment. A new program, possibly a standard of care, has been developed, and you should know about it.

The same goes if you are an instructor in the wilderness medicine field and the article Advanced Wilderness Life Support Education Using High-Technology Patient Simulation.

For information on why a membership to the Wilderness Medical Society is a great idea go here. To subscribe go to the Wilderness Medical Society go here.

What do you think? Leave a comment.

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Grief over son’s death and lack of knowledge about SAR leads to book about SAR in the US.

Posted: October 14, 2010 | Author: Recreation Law | Filed under: Search and Rescue (SAR) | Leave a comment

The article points out what the father did not know. The book is also a way to deal with the loss of a son.

Jon Francis was lost climbing an Idaho peak in 2005. After two days of searching the search (SAR) was called off. His father did not and continues to not understand why the SAR was canceled.

His son was eventually found by paid searches’ months later. The issues of pleading for help and not understanding SAR in the US lead to the creation of this book. The book was self-published, probably meaning no book publisher would publish it.

The article is full of interesting statements about SAR in the US today. Most of the statements show a total lack of knowledge about how SAR works, both by the father of the missing climber and the journalist who wrote the article.

The father’s grief and frustration come through the most in the article. He describes the reasons why the search was eventually canceled as the people involved in the search were “risk averse.” Yet the search for his son ran longer than 90% of the searches in the US.

His grief also comes through in his reasons for writing the book. He wanted the world to know about his son.
A volunteer who is putting his life on the line, for free, looking for someone who died is not risk averse. The person who must live with the loss of a volunteer from a SAR that goes wrong is not risk averse. These people are volunteers. They are hiking the same trails that killed the son. They are doing this for a multitude of reasons, and will do so to the verge of exhaustion if necessary. They are undertaking the same risks that killed the son. How a grieving father can call volunteers undertaking the identical risk that killed his son as risk averse is unbelievable to me.

The father did not understand that SAR in most states is controlled by the Sheriff. In a few states, other agencies are in charge of SAR. There is a nationwide SAR organization, but the organization NASAR does not run searches. It only assists local organizations.

It is hard to tell, but I don’t believe that the father ever looked at the risk the SAR searches were facing. He wanted his son’s body back so badly, that the lives of others did not seem to register as an issue to him. This may be the way the journalist wrote the article, or it may be an issue. Yet this issue cannot be denied. No body is worth a life.

This is a sad story and probably a sad book. However, there are several things we can learn from this.
Grief in the US is an unbelievably strong motivator. People do not die in the US before they have lived a long life. If they do, we do not accept it. Here the grief led to the creation of an organization to assist others in finding lost people, a book and a five year condemnation of the SAR system.

People in the US do not understand how SAR works. SAR is done by volunteers except in some National Parks. Those volunteers work at the behest and in most cases control of the local sheriff.

SAR volunteers do not get the support, the equipment or most importantly the thanks they deserve.
See The father of a man who died on an Idaho peak wants to reform search and rescue.

What do you think? Leave a comment.

Who Charges for Search and Rescue? Meaning who Charges if you need Rescued

Posted: October 13, 2010 | Author: Recreation Law | Filed under: Search and Rescue (SAR) | Tags: Boycott New Hampshire, Boycott NH #BoycottNH, No charge for Rescue, SAR, Search & Rescue, Search and Rescue | Leave a comment

Or better where should I not go recreate!

This is a list of the states, counties and municipalities that have been identified that charge for rescues. These information comes from the No Charge for Rescue Facebook page and its contributors.

I’ll try and keep this information as up to date as possible, however mistakes will be made. If you have information on a government agency listed here or know of one that should be please let me know. Also post the information on the No Charge for Rescue Facebook page

General SAR Cost Recovery


State	Circumstances or criterion	Law	Limit	Negligence Req’d?	Statute
Hawaii	“intentional disregard for the person’s safety”	H.R.S § 137-2			§137-2
Maine		12 M.R.S. § 10105		No	MRS 12-13-2§10105
New Hampshire	“Determination of negligence”	RSA 206:26-bb (2010)		Yes	206:26-bb
Oregon	“Lack of reasonable care”	ORS § 404.270 (2010)	Maximum $500		401.59
Specific and limited SAR cost recovery
Colorado	“Skier Safety Act”	Duties of skiers – penalties. (3) No skier shall ski on a ski slope or trail that has been posted as “Closed” pursuant to section 33-44-107 (2) (e) and (4). (11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6). (12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.	Maximun fine $300. Restitution has been ordered for costs upon conviction of Class 2 petty offense		CRS 33-44-109.
Colorado	River rescue, commercial outfitters	2) (a) Any actual expenses incurred by a governmental entity for search and rescue efforts stemming from any river running activity conducted for consideration by a river outfitter pursuant to the provisions of this article shall be reimbursed by said river outfitter. Such expenses shall include but not be limited to hours worked, fuel, a reasonable fee for use of equipment, and equipment repair or replacement costs, if any.		No	CRS 33-32-108
Vermont	Ski area access to terrain outside bondary	(c) Civil action to recover. A person who uses the facilities of a ski area to access terrain outside the open and designated ski trails, shall be liable in a civil action brought by any person, including a ski area, rescue organization, municipality or the state, to recover expenses incurred to provide rescue, medical or other services to such person for circumstances or injuries which resulted from such use. The entity seeking to recover may also recover reasonable attorney fees and court costs. No ski area, its owners, agents or employees, individual or entity, municipal or otherwise, shall be held liable for any acts or omissions taken in the course of such rescue operations unless such act or omission constitutes gross negligence. (Added 1993, No. 233 (Adj. Sess.), §88, eff. June 21, 1994.)			12-27-1038
California	Rescuing county bills resident’s home county	The county or city and county of residence of a person searched for or rescued by the sheriff under the authority of Section 26614 shall pay to the county or city and county conducting such search or rescue, in any case where the expenses thereof exceed one hundred dollars ($100), all of the reasonable expenses in excess of one hundred dollars ($100) of such search or rescue within 30 days after the submission of a claim therefor by the county or city and county conducting the search or rescue and the county or city and county conducting the search or rescue shall bear the remaining expense.	Minimum $100	No	26614.5

If you would like more information on this subject or to stay current on the issues check out the FB page No Charge for Rescue.

What do you think? Leave a comment.

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California bill to require helmets on skiers and boarders under age 18 dies lacking governor’s signature.

Posted: October 12, 2010 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Leave a comment

Probably, a good thing.

There is a balancing act, always upset by politicians seeking to attract attention, between getting kids’ outdoors and the risks the outdoors create. That risk is probably less than the short and long term risk of sitting at home. However, that does not stop a politician seeking to gain media time from trying to eliminate the risk, no matter how misguided.

The entire premise is based on the theory that all skiers and boarders under the age of 18 will go out and buy a helmet before riding. That premises is possibly wrong. What does happen based on several studies is fewer youths participate in the sport after requiring helmets. See the following:

A critical examination of arguments against bicycle helmet use and legislation
Helmet Laws and Health
Head Injuries and Helmet Laws in Australia and New Zealand
Head injuries and bicycle helmet laws.

There are other studies that contradict these findings, however.

It is simple. Friday night Johnny takes the information bout the ski trip on Saturday to mom. Mom reads that Johnny must have a helmet to participate. Mom is not going to go buy or rent Johnny a helmet because:

It is late and mom is tired.
She has no money to buy or rent a helmet.
She does not want to spend any more money on a helmet.
Tough luck Johnny, you will probably be a bad skier anyway.

See California Helmet Bill Is Dead

What do you think? Leave a comment.

Sky Diving Release defeats claim by Naval Academy student

Posted: October 11, 2010 | Author: Recreation Law | Filed under: Maryland, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Evidence, faculty advisor, Federal Rules of Civil Procedure, Gross negligence, jumpmaster, MARYLAND, Naval Acdemy, Parachuting club, Release, Rules of Civil Procedure, sky diving, Waiver | 1 Comment

Boucher v. Riner, et al. 68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391

Boucher v. Riner is a case that examines three issues under Maryland law that are important and to understand an appellate rule of civil procedure in one case. Those issues are: (1) the liability of a third party contractor to a military participant, (2) the validity of releases under Maryland law, and (3) how Maryland law defines Gross Negligence. The release in question also had a bargain component that allowed the signor to opt out of the release for the payment of additional fees. Finally, the appellate civil procedure rules are explained as to why appellate courts do not review issues not previously argued at the trial court level.

The Bargain component of releases is rarely seen now days. However, you can find it referenced in a few current cases. At one time, some states required the opportunity for a signor of a release to be able to bargain or pay more for the option of not signing a release. The normal trip was $100 and to do the trip without a release was $125.00. The $25 difference was not ever opted by enough people to justify the increased risk or cost to the company and their insurance company and has gradually fallen out of favor.

The plaintiff in this case was a student at the US Naval Academy. He signed up to become a member of the Naval Academy Parachuting Club (the Club), a voluntary extracurricular club at the Academy. The club was administered by upperclassman and had a faculty advisor. The plaintiff was trained by upperclassman in how to skydive. The club had a contractual relationship with Parachutes Are Fun, Inc. (Parachutes) a co-defendant in the suit. The club paid a reduced fee and used Parachutes facility and jumpmaster for skydiving. The club used its own equipment and training for club members.

On the day of the accident, the plaintiff jumped with two upper classmen, and a Parachutes jump master. A Parachutes employee was on the ground with a loud speaker directing skydivers as they neared the ground. The employee noticed the plaintiff was going to come close to some electrical lines but decided not to tell the plaintiff. The plaintiff hit the electrical lines suffering injury.

Prior to his jump, the plaintiff had signed a release. The release clause that is quoted in the case is the negligence clause and uses the word negligence. The release covers the defendant Parachutes and “its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees.”

The plaintiff filed a two count complaint alleging:

(1) Negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and

(2) Gross negligence on the part of the appellees in the performance of their duties.

The defendants filed a motion for summary judgment at the trial court level that was granted. The plaintiff then appealed the decision arguing three issues on appeal.

I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?

II. Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence?

III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor?

Under Maryland law, like the majority of states, a release does not protect a defendant from a claim of gross negligence. Gross negligence is defined by the Maryland Courts as conduct “of an extraordinary or outrageous character.” Another definition is looks at the care given to the plaintiff by the defendant: “which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Alternatively, defined as “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.”

Here the acts of Parachutes employee did not rise to the definition of gross negligence. The court reviewed the actions of the employee and determined that the employee:

[W]as attentive to Boucher’s descent, that he was stationed in the proper location, and that he was calling out instructions to Boucher as was expected of him. There was no showing of indifference on the part of Dunker. Rather, the conduct alleged here reflects, at worst, poor judgment on the part of Dunker that, while perhaps amounting to ordinary negligence….

We see no evidence of a premeditated decision, deliberately arrived at, by an indifferent jumpmaster that should have indicated almost certain harm to others.

The second issue the court reviewed was whether the release was valid under Maryland law. Maryland has six factors that may invalidate a release.

[1] It concerns a business of a type generally thought suitable for public regulation.

[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

The court found that the defendants had not performed any of the six criteria that would invalidate the release. Parachutes was not performing a service important or a necessity to the public. The legislature of Maryland had not identified skydiving as important to control. Parachutes had no bargaining advantage, and the plaintiff was not under the control of Parachutes. Moreover, the plaintiff was under no requirement to jump.

The third issue was whether the individual defendant, the employee of the defendant Parachutes, who was directing the plaintiff from the ground was an employee covered under the release or an independent contractor who the plaintiff claimed would not be covered under the release. The court did not look at all issues because the court found the issue had not been argued at the lower court.

Appellate courts have always ruled that they will only review those issues that have already been reviewed at the court below. No new issues can be argued at the appellate court. All information and legal arguments must be brought up, at some point at the trial court level. Failing to do this, a party waives an issue if they do not raise it at the trial court level. For many, this seems like the court is just avoiding the issues but there are valid legal and common sense reasons for this policy, which this court enumerates.

The policy requires that the attorneys fully prepare for trial. If not, trails and appeals would go on forever because every case would be appealed and new evidence would be introduced at each appeal. Having this requirement limits the amount of appeals and forces everyone to be ready from the start. At one time, all important issues are litigated, and the jury has 100% of the information to make a fair and informed decision.

More importantly, because an appellate court cannot hear new evidence, the court would be making a judgment on issues that may not be fully explained or the court has not fully understood.

This brings up a litigation point, the references to the Rules of Civil Procedure. There are several sets of rules that an attorney must follow when litigating a case. These rules are created by the Supreme Court of each state and then modified occasionally by the court by edict and or by court decision. The Rules of Evidence control what the jury can see and hear so that the jury only hears the best evidence, and evidence does not prejudice the jury or one party. The Rules of Civil Procedure are the rules that dictate how you get to trial and appeal cases. Most of the rules define the time when things must occur or filed. However, there are several civil rules that dictate what your pleadings must contain, what size type and how those documents are conveyed to the court and the other parties in a case.

The case is a good case to read in understanding Maryland law, which is consistent with most other cases. Identifying the six areas where releases may not be valid is a major help to someone looking to a release to protect them from lawsuits.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Boucher v. Riner, et al. 68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391

Posted: October 10, 2010 | Author: Recreation Law | Filed under: Maryland, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Gross negligence, Hang gliding, Parachuting, Paragliding, Release, Skydiving, Skydiving Club, US Naval Academy, Waiver | Leave a comment

For an Analysis of the case see: Sky Diving Release defeats claim by Naval Academy student

Daniel M. Boucher v. Gordon E. Riner, et al.

No. 1470, September Term, 1985

Court of Special Appeals of Maryland

68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391

September 8, 1986

Prior History: [***1] Appeal from the Circuit Court for Caroline County, George B. Rasin, Jr., Judge.

Disposition: Judgment Affirmed; Costs to be Paid by the Appellant.

Counsel: Argued by David R. Thompson (Kurt D. Karsten and Franch, Earnest & Cowdrey, P.A. on the brief), Easton for appellant.

Argued by W. Michael Jacobs (Charles E. Iliff, Jr. and Semmes, Bowen & Semmes on the brief), Baltimore for appellees.

Judges: Weant, Karwacki and Wenner, JJ.

Opinion By: Karwacki

OPINION

[*540] [**486] Daniel M. Boucher, the appellant, wishing to learn how to parachute, joined the Naval Academy Parachuting Club (the Club) in September 1982. The Club is a voluntary extracurricular activity for students at the Naval Academy. The Academy, where Boucher was a midshipman, provided equipment, paid various fees, and made arrangements for the use of a drop zone for the club members. Although the Club was organized and operated by upperclass midshipmen, it had a faculty advisor, and the Club members were accompanied on field trips by naval officers.

The Club had an agreement with Parachutes Are Fun, Inc. (Parachutes), for the use of Parachutes’ drop zone as a training ground for Club members. That agreement provided that the [***2] Club would provide its own equipment and be able to use the drop zone at a reduced rate. Parachutes agreed to conform to all regulations as specified by the Academy.

Prior to Boucher’s first parachute jump, he received instructions in sport parachuting at the Academy from [*541] Midshipmen Byrne and Lastar, who were among the upper-classmen who ran the Club. The two were qualified by the U.S. Parachute Association (USPA), a civilian organization engaged in the promotion and self-regulation of the sport. Boucher’s training consisted of instruction in the hazards normally associated with parachuting, including the hazard posed by jumping in the vicinity of uninsulated electric power lines. Attention was given to the methods which should be employed by the parachutist to avoid or minimize contact with obstacles on the ground by controlling the direction of descent.

The appellees, in addition to Parachutes, are: the Pelicanland Corporation (Pelicanland), the owner of the airport where the drop area was located; Gordon E. Riner, the co-owner and vice-president of Parachutes, who is a certified jumpmaster, instructor, and parachutist; and Kenneth Dunker, a certified jumpmaster, [***3] instructor, and parachutist who worked at Parachutes.

On September 18, 1982, Boucher along with other midshipmen went to Pelicanland to make his first jump. Prior to Boucher’s boarding the airplane that day, he signed an exculpatory agreement with Parachutes, the relevant portion of which stated:

2 A. EXEMPTION FROM LIABILITY

The Participant exempts and releases the Corporation, its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees from any and all liability, claims, demands or [**487] actions or causes of action whatsoever arising out of any damage, loss or injury to the Participant or the Participant’s property while upon the premises or aircraft of the Corporation or while participating in any of the activities contemplated by this Agreement, whether such loss, damage, or injury results from the negligence of the Corporation, its officers, agents, servants, employees or lessors or from some other cause.

[*542] At about 5:30 p.m., a decision was made that wind conditions were such that the jump could be made. Boucher went up in the plane with two other midshipmen and with Riner, [***4] who was there to act as coach and jumpmaster. Dunker was on the ground, near the target area, and was manning the public address system to “talk down” the jumpers. Boucher was the last of the three to jump. After Boucher’s parachute opened, Dunker began calling out his instructions, telling Boucher to change from a “running” position where his back was to the wind, to a “holding” position, facing the wind. As Boucher neared the ground, Dunker instructed him to execute a 360^o turn. At this point, Dunker realized that there was a danger that Boucher would fly right into nearby power lines. He gave no indication of that danger to Boucher, who continued his descent with his back to the lines. Seconds later, Boucher collided with the lines, sending 12,500 volts of electricity through his body.

Boucher filed a two count declaration against the appellees alleging (1) negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and (2) gross negligence on the part of the appellees in the performance of their duties. The appellees jointly moved for summary judgments. On July 24, 1985, [***5] following a hearing, the Circuit Court for Caroline County (Rasin, J.), in a well reasoned memorandum opinion, granted the appellees’ motion. Boucher, in his appeal from those judgments, presents the broad question of “whether the trial court improperly granted summary judgment to the defendants?”

Specifically, he raises the following issues:

I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?

II. Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence?

[*543] III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor?

Preliminarily, since the hearing court resolved this controversy in favor of the appellees by summary judgment, we will review the evidence, including all permissible inferences therefrom, in the light most favorable to the appellant. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62, 485 A.2d 663 (1984); Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-18, 382 A.2d 555 (1978).

Summary judgment should be granted only upon a showing that there [***6] is no genuine issue as to any material fact. Fireman’s Fund Ins. Co. v. Rairigh, 59 Md.App. 305, 313, 475 A.2d 509, cert. denied, 301 Md. 176, 482 A.2d 502 (1984). If there is a conflict between the inferences which may be drawn from the evidence before the court, summary judgment is not proper. Coffey v. Derby Steel Co., 291 Md. 241, 246-47, 434 A.2d 564 (1981). Our review of all of the evidence in the light most favorable to the appellant convinces us that the hearing court was correct in finding, that there was no genuine dispute as to any material fact and that the appellees were entitled to judgments as a matter of law.

I.

Boucher contends that the appellees were guilty of gross negligence and that even if the exculpatory clause is held to be valid it does not shield the appellees from liability for gross negligence. As to the latter part of Boucher’s assertion—that the [**488] appellees are not shielded from liability for gross negligence—he is correct. A waiver of a right to sue, such as the one executed between Boucher and Parachutes, is ineffective to shift the risk of a party’s own willful, wanton, reckless, or gross conduct. Winterstein v. [***7] Wilcom, 16 Md.App. 130, 134-36, 293 A.2d 821, cert. denied, 266 Md. 744 (1972). Dean Prosser explains such a result on the alternative bases of common experience as to what is intended by the contracting parties or of public [*544] policy to discourage aggravated wrongs. Prosser and Keeton, The Law of Torts § 68 (5^th ed. 1984).

Returning to the first part of Boucher’s contention—that the appellees were guilty of gross negligence—we find ourselves in agreement with the hearing court that Boucher fails in his reliance on essentially three facts to raise an inference of gross negligence. Boucher alleges that the appellee Dunker was on the ground giving instructions to Boucher as he was descending; that Boucher was unaware of the electric lines prior to colliding with them because, as Dunker had instructed, his back was to the lines; and that Dunker did not warn Boucher of the presence of the power lines. Boucher argues that an inference of gross negligence can be drawn from the above circumstances because Dunker was “controlling” Boucher’s movements and thus guided Boucher into the electric lines.

Gross negligence has been examined in a number of Maryland cases [***8] dealing with a variety of issues. These cases have addressed issues which include the circumstances under which gross negligence can support an award of exemplary damages, 1 civil liability for injuries to trespassers, 2 and criminal liability for manslaughter by automobile. 3 Our appellate courts have also dealt with the issue of gross negligence in the context of the type of conduct that would support an inference sufficient to overcome the bar of an [*545] automobile guest statute, 4 contributory negligence, 5 and, as in this case, a pre-injury release. 6

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

1. Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972); Bannon v. B. & O. R.R. Co., 24 Md. 108 (1866).

2. Murphy v. Baltimore Gas & Elec., 290 Md. 186, 428 A.2d 459 (1981); Mondshour v. Moore, 261 A.2d 482, 256 Md. 617 (1970); Mech v. Hearst Corp., 64 Md.App. 422, 496 A.2d 1099 (1985), cert. denied, 305 Md. 175 501 A.2d 1323 (1986); Medina v. Meilhammer, 62 Md.App. 239, 489 A.2d 35, cert. denied, 303 Md. 683, 496 A.2d 683 (1985).

3. Johnson v. State, 213 Md. 527, 132 A.2d 853 (1957). [***9]

4. Romanesk v. Rose, 248 Md. 420, 237 A.2d 12 (1968).

5. Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985).

6. Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 831, cert. denied, 266 Md. 744 (1972).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

In Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972), the Court of Appeals addressed the issue of gross negligence in the context of punitive damages. In that case, a boy was killed after he was struck by a truck owned by the defendant concrete company and driven by an inexperienced 18 year-old. In an action seeking compensatory and exemplary damages, the executor of the decedent’s estate sued Gray Concrete for negligent entrustment of the vehicle and the driver for negligent operation of the truck. The complaint stated that the corporate defendant had entrusted the truck to the driver knowing that the truck’s hood was improperly secured and that it could pop open at any time, that the driver was only 18 when the law required its drivers to be over 21 years of age, that the driver had no chauffeur’s license, and that the driver was [***10] untrained, unqualified, and incompetent to drive the truck on the highway. Id. at 169, 297 A.2d 721. The count against the driver alleged that he did not check the condition of the truck prior to operating it on the highway, that he did not respond properly when the hood flew up and blocked his vision—he stopped his truck in the center lane of the highway rather than pulling it off to the side—and that he knew or should have [**489] known that the truck was in violation of many requirements of the law. Id. at 170-71, 297 A.2d 721.

The Court concluded that punitive damages were recoverable in actions arising out of motor vehicle torts where there was a “’wanton or reckless disregard for human life’ in the operation of a motor vehicle, with all the known dangers and risks attendant to such conduct.” Id. at 168, 297 A.2d 721. The Court stated that the standard contemplated conduct which was of an “extraordinary or outrageous [*546] character,” but which stopped short of “wilful or intentional injury.” Id.

In Smith, the Court held that punitive damages were not recoverable against the driver of the truck because his conduct, “although constituting [***11] sufficient negligence to support a claim for compensatory damages, does not mount up to ‘a wanton or reckless disregard for human life.’” Id. at 171, 297 A.2d 721. In other words, although the driver may have exercised extremely poor judgment in his operation of the truck, his conduct was not of an extraordinary or outrageous character so as to constitute gross negligence.

On the other hand, the corporate defendant was found to be subject to possible exemplary damages. The conduct of Gray Concrete “did not occur under the pressures of a highway crisis, where what might superficially appear to be caused by ‘extraordinary or outrageous conduct’ could be merely the result of poor judgment exercised under such circumstances.” Id. at 172, 297 A.2d 721. The Court noted that Gray’s conduct reflected a premeditated decision by an employer in possession of facts which should have indicated almost certain harm to others. Id.

In another instructive case, Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985), the Court of Appeals had to determine whether there had been a showing of legally sufficient evidence of gross negligence to defeat the defendants’ motions [***12] for summary judgment. Liscombe involved the driver of a dump truck who was injured when the raised bed of his truck came into contact with high voltage lines that passed over the site. The driver alleged that the gross negligence of both the power company and the occupier of the premises led to his being injured. Id. The Court quoted from Bannon v. B. & O. R.R. Co., 24 Md. 108, 124 (1866), where it was said: “Gross negligence is a technical term, it is the omission of that care ‘which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Id., 303 Md. at 634-35, 495 A.2d 838. The Court then noted its decision in Romanesk v. Rose, 248 Md. 420, 237 A.2d 12 (1968) [*547] (applying Virginia law), in which it quoted with approval the definition of gross negligence from 4 Blashfield, Cyclopedia of Automobile Law and Practice § 2771 (1946 ed.) as:

an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. [***13] Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.

Id. at 423, 237 A.2d 12.

In concluding that the evidence of gross negligence before the hearing court was insufficient, the Court assumed without deciding that the “lesser standard” of Smith v. Gray Concrete Pipe Co., supra, was the appropriate test for determining whether legally sufficient evidence of gross negligence by either defendant had been shown. The Liscombe Court noted the defendants’ efforts to minimize exposure to the danger, that there was no evidence of indifference by the defendants to the safety of others, and that there was no indication to either that almost certain harm to others would result from the defendants’ action or their failure to act. The Court stated that, [**490] “[t]here was, in short, no showing of facts establishing extraordinary or outrageous conduct mounting up to a wanton or reckless disregard for human life on the part of either defendant.” Id.

We rely on the guidance of Liscombe [***14] and Smith in deciding whether the conduct of the appellee Dunker in this case amounted to gross negligence. In Smith, the Court of Appeals noted that “the conduct alleged here reflects a premeditated decision, deliberately arrived at, by an indifferent employer in possession of facts which should have indicated almost certain harm to others.” 267 Md. at 172, 297 A.2d 721. In the case sub judice, viewing all of the evidence in the light most favorable to the appellant, we [*548] cannot say that Dunker’s conduct amounted to a wanton or reckless disregard for Boucher’s life. The undisputed material facts of this case show that Dunker was attentive to Boucher’s descent, that he was stationed in the proper location, and that he was calling out instructions to Boucher as was expected of him. There was no showing of indifference on the part of Dunker. Rather, the conduct alleged here reflects, at worst, poor judgment on the part of Dunker that, while perhaps amounting to ordinary negligence, does not rise to the level of gross negligence. We see no evidence of a premeditated decision, deliberately arrived at, by an indifferent jumpmaster that should have indicated almost [***15] certain harm to others.

II.

The appellant next argues that the exculpatory agreement which he signed shortly before his jump is unenforceable. 7 We disagree.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -7.

Whether this issue is even preserved for our review is questionable since it was not explicitly raised below. On the assumption that it was implicitly preserved for our review, however, we will address the issue.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The Maryland law regarding exculpatory clauses can be stated quite succinctly. In the absence of legislation to the contrary, there is ordinarily no public policy which prevents the parties from contracting as they see fit. Winterstein v. Wilcom, 16 Md.App. at 135, 293 A.2d 821. “It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.” Id., quoting Prosser, The Law of Torts § 67 (3d ed. 1964). There are, of course, exceptions to the general [***16] rule, and the appellant would have us here find either of two exceptions applicable. The first is that such an agreement will be invalid if the relationship of the parties is such that one [*549] party is at an obvious disadvantage in bargaining at the time the contract is entered so that the effect of the contract is to put him at the mercy of the other’s negligence. Winterstein, 16 Md.App. at 135-36, 293 A.2d 821. The second exception invalidates exculpatory agreements if they are part of a transaction affected with a public interest. Id. at 136-37, 293 A.2d 821. We will examine the exculpatory agreement sub judice, in light of the evidence before the hearing court to determine the applicability of either exception.

Boucher joined the Club of his own volition sometime prior to September 18, 1982. His participation in the Club was not required by the Academy. Further, Boucher was not compelled by Parachutes to agree to the waiver of his right to sue. Had Boucher so wished, he could have chosen the option provided by Parachutes under Paragraph 2B 8 of the Agreement to pay an additional fee of $ 300 to nullify the [**491] waiver of paragraph 2A. Boucher [***17] chose not to pay the additional fee thereby waiving his right to sue in the event of an accident involving the negligence of the defendants.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

8. 2B ALTERNATIVE PROVISION:

In consideration of the deletion of the provisions, 2A, 3, 4 and 6 herein regarding EXEMPTION FROM LIABILITY COVENANT NOT TO SUE, INDEMNITY AGAINST THIRD PARTY CLAIMS, and CONTINUATION OF OBLIGATION the Participant has paid the additional sum of $ 300.00 upon execution of this agreement, receipt of which is hereby acknowledged by the Corporation.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The case of Winterstein v. Wilcom, supra, involved an exculpatory contract with language similar to the instant Agreement. In Winterstein, the appellant had signed an exculpatory agreement in connection with his use of a drag strip operated by the defendant. The plaintiff was injured when his car struck an automobile cylinder head which had not been cleared from the track prior to the plaintiff’s use of the drag strip. Winterstein, 16 Md.App. at 133, 293 A.2d 821 . This Court held that [***18] the exculpatory agreement [*550] was not void as against public policy. We noted there that there was “not the slightest disadvantage in bargaining power between the parties.” Id. at 138, 293 A.2d 821.

We stated that the plaintiff “was under no compulsion, economic or otherwise, to race his car. He obviously participated . . . simply because he wanted to do so . . . . This put him in no bargaining disadvantage.” Id. We make a similar determination in the instant case. Boucher was under no compulsion to make a parachute jump, and he did so merely because he wanted to do so. He was not at a bargaining disadvantage.

This Court in Winterstein identified six factors to be considered in determining whether a transaction is so affected by public interest as to invalidate exculpatory provisions. Quoting from a decision by the Supreme Court of California, sitting en banc, we stated:

[T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of [***19] great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser [*551] is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Winterstein, 16 Md.App. at 137, 293 A.2d 821.

Clearly, the transaction in which the appellant engaged on September 18, 1982, exhibited none of these characteristics. Parachutes is not performing a service of [***20] great importance or a matter of practical necessity for any member of the public. The Legislature has not thought sport parachuting suitable for public regulation. As the service is not of an essential nature, Parachutes had no decisive advantage of bargaining strength against any member of the public seeking to participate. Boucher was not “under the control” of Parachutes or its employees in such a way that he was subject to the risk of carelessness by Parachutes—Boucher had received training in obstacle avoidance. Finally, Boucher was under no obligation to make the jump. Cf. Winterstein, 16 Md.App. at 138, 293 A.2d 821. We therefore hold that the exculpatory clause signed by Boucher was not void as against public policy.

III.

Lastly, the appellant argues that summary judgment should not have been granted because “[t]here exists a genuine issue of [**492] fact as to whether defendant Dunker’s status at Parachutes Are Fun, Inc. was that of servant or independent contractor.” The short answer is that the appellant has not preserved this issue for our review. Rule 1085. In the summary judgment proceedings before the hearing court, the appellant did not attempt [***21] to contradict any of the affidavits, admissions, deposition excerpts, or any evidence presented by the appellees in support of their summary judgment motion.

Furthermore, the appellant did not argue at the hearing on the motion that Dunker was an independent contractor. By failing to make this argument before the hearing judge, the appellant did not show that court, with some precision, a genuine and material dispute. [*552] Sherman v. Am. Bankers Life Assur., 264 Md. 239, 242, 285 A.2d 652 (1972).

The appellant himself conceded in his brief to this Court that the only time that the status of the appellee Dunker was raised by the appellant, up to and including the summary judgment hearing, was in the complaint he filed in the Circuit Court. In paragraph six of the complaint, the appellant alleged:

Defendant Kenneth Dunker, on September 18, 1982, acted as an agent of both Parachutes Are Fun, Inc., and Pelicanland Corporation. He also acted independently in his capacity as a licensed parachute jump master. (Emphasis supplied).

To us, the above quoted paragraph appears to be an acknowledgement that the appellant recognized Dunker as an agent of Parachutes [***22] and of Pelicanland. Given that the exculpatory clause released from liability “the Corporation, its owners, officers, agents, servants, employees, and lessors . ..” (emphasis added), the appellant’s argument, without more, does not appear to have any merit. Surely the phrase “[h]e also acted independently,” read in the context of the rest of paragraph six of the appellant’s complaint, cannot be taken to mean that the appellant asserts that Dunker was an independent contractor. But therein lies the danger behind an appellate court attempting to review an issue that was not passed upon by the court below. In order to prevent such a situation, this Court ordinarily will not decide a question that has not been raised and decided by the lower court. Rule 1085; Washington Homes v. Baggett, 23 Md.App. 167, 326 A.2d 206 (1974), cert. denied, 273 Md. 723 (1975). The requirements of Rule 1085 are matters of basic fairness to the hearing court, and to opposing counsel, as well as being fundamental to the proper administration of justice. Medley v. State, 52 Md.App. 225, 448 A.2d 363 , [***23] cert. denied, 294 Md. 544 (1982).

JUDGMENT AFFIRMED; COSTS TO BE PAID BY THE APPELLANT.

Explorers Club Seeks Executive Director

Posted: October 8, 2010 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Work for a 100 Year Old Outdoor Institution in New York City.

Explorers Club Seeks Executive Director – The New York-based Explorers Club is seeking applicants for the position of Executive Director to be responsible for the day-to-day management of the organization. Founded in 1906, the Explorers Club has 3,100 members in 19 domestic and nine overseas chapters. An e-mail copy of the position description and application form can be obtained from Matt Williams, Operations Director, at mwilliams@explorers.org. Experience in management of non-profit organizations is highly desired. Application deadline is November 15, 2010.

For more information about the Explorer’s Club go here.

What do you think? Leave a comment.

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Big Swap at Wilderness Exchange Tomorrow

Posted: October 8, 2010 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Wilderness Exchange is having their annual gear swap Saturday October 9, 2010.

The Swap starts at 10:00 AM and ends at 4:00 PM.

For information about the Gear Swap go here! Wilderness Exchange is located at 15th and Platt. The Gear Swap will be in the parking lot in the back facing I-25.

I know that the following gear will be available:

Mammut Fall 10 products
Salomon footwear
Salomon apparel
Salomon nordic
Mammut packs
Mammut gear

Lots of sales Reps are known to sell their gear at this swap.

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ILLUMINARE: A STUDENT JOURNAL IN RECREATION, PARKS, AND LEISURE STUDIES

Posted: October 8, 2010 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

CALL FOR PAPERS

DEADLINE: DECEMBER 6^th, 2010

The Illuminare Student Journal is requesting submissions for the 2010-11 publication. The Illuminare is an online, open access, peer-reviewed journal that aims to publish original student work in the field of leisure studies. Originally established in 1992 by students in the Indiana University Department of Parks, Recreation, and Tourism Studies, the journal has been emblematic as the premier student-generated leisure journal. The Illuminare seeks to include manuscripts and dissertation abstracts from the five core specializations within our field:

Recreational Sport Administration
Park and Recreation Management
Outdoor Recreation
Therapeutic Recreation
Tourism Management

The deadline for submission is Monday, December 6^th, 2010. All manuscripts should be submitted electronically to the Illuminare at illumin@indiana.edu with the subject title reading “Illuminare Manuscript: (insert topic area).” Additionally, see the attached documents for further information and guidelines for contributors.

Please pass this information along to anyone interested and if you have any questions, feel free to contact us.

Thanks!

Rachel Smith (smitrach@umail.iu.edu )
Austin Anderson (auanders@indiana.edu )
Lauren Duffy (lnduffy@indiana.edu )

What do you think? Leave a comment.

Keywords:

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Playgrounds will be flat soon

Posted: October 7, 2010 | Author: Recreation Law | Filed under: Playground | Tags: Adventure travel, JimMoss, liability, playgrounds, Recreation Law, Recreation-Law.com, Ropes course, Standards, summer camp, TravelLaw | Leave a comment

No swings, teeter totters or anything above a blade of grass…artificial grass.

Cabell County Schools are removing swing-sets from all elementary school playgrounds. The swing-sets are being

Swing seat rust (Photo credit: cynicalview)

removed because of insurance issues and lawsuits stemming from swing-set injuries.

In the past two years, the school district has settled two swing-set claims and is fighting two swing-set related lawsuits.

However, there was a quote that caught my attention. “”In this day and age, we have to do everything we can to keep kids safe,” said Jedd Flowers of the school district.”

Why? Why is it the school systems’ job to keep kids safe? There is a difference between falling down or falling off a swing and being kept safe. This is not an issue where young children are being put at risk. At what point in time do we start putting kids in bubble wrap before sending them out the door.

See Risk Management: Preventing Injuries or Preventing Lawsuits? for more of my comments on this idea.

It is this quote that sent me through the roof!

Many of the county’s elementary schools use mulch around their swing sets, although national safety standards now call for rubber-based surfaces, Stewart said. Those types of surfaces can cost at least $7,500 per swing set, he said.

A new standard created by some do gooder group has forced the removal of swing-sets from the school yard. Sure rubber surfaces are better but not everyone can afford one. All the creation of this standard did was eliminate swing-sets not keep kids safe. At least it is going to be a standard that will eventually be obsolete because no on will have a swing set.

A commercial swing-set with four swings costs a playground about $1000 to $1500. However, when you add the cost of the rubber matting the total price of a swing-set is $9000! Or roughly 6 swing-sets.

When I said flat ground? The swing-sets are not going to be replaced with anything because the school district no longer deals with playgrounds.

The dictionary will have to change its definitions; playground will now be a synonym for field.

See School system removing swings

For more articles about how ridiculous standards are see Can a Standard Impede Inventions?, Basics of the Article are Good – But it confuses certification, accreditation and most importantly standards. and This is how a standard in the industry changes…..but….

Sorry my headline is incorrect. Teeter totters were removed years ago because they were dangerous………

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Independent Contractor (Sales Representative Laws by State)

Posted: October 6, 2010 | Author: Recreation Law | Filed under: Uncategorized | Tags: Contractor, Independent Rep, Manufacture, Rep, Sales | Leave a comment

STATE	WRITTEN CONTRACT REQUIRED	DAMAGES	TIME TO PAY COMMISSIONS	MISC.	CITATION
Alabama		Treble Damages, & Attorney fees	30 days after termination or when commissions become due.		Code of Alabama 1975, Sections 8-24-1 through 8-24-5
Arizona	K required if requested[1]	Damages, Attorney fees & costs	30 days		Title 44, Chapter 11, Article 15, Arizona revised statutes.
Arkansas	Yes	Treble Damages, & Attorney fees	30 days if no K		Arkansas Code, Sections 4-70-301 through 4-70-306
California	Yes, no exceptions[2]	Treble Damages, & Attorney fees		Mfg who employs Rep in California can be sued in the California	State of California Civil Code Title 1A, Section 1738.10, Part 4, Division 3
Colorado	No	Treble Damages; the prevailing party shall be entitled to attorney fees & costs in addition to any other recovery		Mfg who employs Rep in Colorado can be sued in the Colorado	Colorado Revised Statutes Title 12, Section 12-66-101 through 103
Georgia	Yes	Commissions plus punitive damages up to twice the commissions plus attorney’s fees	14 days unless modified by K	The statue prohibits the parties from waiving its requirements, whether by express waiver or by making the contract subject to the laws of another state	Official Code of Georgia Annotated, Article 24, Sections 10-1-700 through 10-1-704
Illinois	No	Treble Damages, & Attorney fees	13 days of termination or 13 days when commissions are earned		Illinois Revised Statutes, Chapter 48, paragraphs 2251, 2252 and 2253
Indiana	No	Treble Damages, & Attorney fees	14 days after payment would have been due under the K	For purposes of Indiana Rule 4,4, a Mfg who employs Rep in Indiana can be sued in the Indiana	Indiana Code, 1988 Edition, Sections 24-4-7-1 through 24-4-7-6
Iowa	No	Commissions due plus liquidated damages (5% of commission due x number of days past due) including costs & attorney’s fees	30 days after commissions earned. Upon termination within 30 days after termination		Code of Iowa, Vol. 1. 1989, Chapter 91A, Sections 91A.1 through 91A.13
Kansas	No	Commissions	30 days		Kansas Statutes Annotated. 1987 Cumulative Supplement, Chapter 44, Article 3, Sections 44-341
Louisiana	No	Triple damages plus attorney’s fees & costs	If no K all commissions due must be paid no later than the 30 working days after termination	Mfg must provide the sales representative with a copy of the contract. The statute expressly prohibits the parties from waiving any of the statute’s requirements. The statute also prohibits any contractual provision which would establish exclusive venue in a state other than the Louisiana	Louisiana Revised Statutes (West. 1988), Title 51, R.S. 51:441 through 445
Maine	No	exemplary damages up to an amount of 3 times the commissions due, plus attorney’s fees & costs	30 days after termination	If frivolous action is brought, the sales representative is liable to the Mfg for attorney’s fees and court costs Mfg who employs Rep in Maine can be sued in Maine
Maryland		Exemplary damages not to exceed 3 times the commissions owed plus costs[3]	45 days		Annotated Code Maryland, Article 100, Sections 127 through 131
Massachusetts	Yes if either party requests one	Commission	7 days after termination or expiration of the agreement; or within 14 days for goods shipped after termination or expiration of the agreement		Massachusetts General Laws Annotated (West, 1988), Chapter 104, Sections 7 through 9
Michigan	No	Actual damages plus if found to have intentionally failed to pay, an amount equal to 2 times the commission due, not to exceed $100,000	45 days after termination	attorney’s fees & court costs to the prevailing party	Michigan compiled laws section 600.2961
Minnesota	No	Commission amount plus 1/15th of commission for every day of non-payment up to 15 days; plus reasonable attorney’s fees	3 days	Minnesota also requires 90 days written notice for termination of Representative Ks made after August 1, 1990.[4]	Minnesota Statutes 1988, Chapter 181. Sections 181.13, 181.14 and 181.145. & Minnesota Statutes 1990, Regulation of Trade Practices Section 325E.37
Mississippi	No	triple the commission due plus reasonable attorney’s fees & costs	21 days		1988 Mississippi General Laws, Chapter 588, Sections 75-87-1, 75-87-3, 75-87-5, and Notes
Missouri	No	Commission due, an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment, & attorney’s fees & costs	14 days		House Bill 219, Section 407.023.
Nebraska	No	amount equal to the judgment, but if nonpayment of commissions is found to be willful, an amount equal to 2 times the amount of unpaid commissions			Nebraska Revised Statutes, Vol. 3b, Section 48-1229 through 48-1232
New Hampshire	Yes	civil action damages plus exemplary damages, plus attorney’s fees & costs	45 days	The statute prohibits the parties from waiving its requirements, whether by express waiver or by a contract subject to the laws of another state	State of New Hampshire revised statutes annotated Section 339, E1 through E4
New Jersey	No	Amount due representative plus attorney’s fees & costs	7 days of termination. All other commissions must be paid within 30 days after payment would have been due if the K had not been terminated	If the court finds the sales rep’s action frivolous the Mfg will be awarded attorney’s fees & court costs The statute prohibits the parties from waiving its requirements, whether by express waiver or by a contract subject to the laws of another state	Laws of New Jersey 1990, Chapter 93, effective 9/7/90[5]
New York	Yes	2 times the commission amount; plus attorney’s fees, costs & disbursements	5 days		Labor Law Book No. 30, Chapter 451, Sections 191-a, 191-b, and 191-c
North Carolina	No	civil action all commission due, plus exemplary damages not to exceed all commissions due, plus attorney’s fees & court costs	45 days	If the court finds the sales rep’s action frivolous, the rep is liable for attorney’s fees & court costs provision in any contract between a sales representative and a Mfg purporting to waive any provision of this statute, whether by expressed waiver or by a contract subject to the laws of another state, is void	General statutes of the State of North Carolina Chapter 66, Section 190 through 193
Ohio	No	Liable in civil action for triple damages plus reasonable attorney’s fees & costs	Must be specified in K. Upon termination all commissions due must be paid within 13 days or within 13 days after they become due	The statute prohibits the parties from waiving it’s requirements	Ohio Revised Code 1988, Section 1335.11
Oklahoma	No	Commissions due; plus attorney’s fees & costs to the prevailing party	14 days		Oklahoma Statutes, Section 677 title 15
Oregon	No	(1) All amounts due the sales representative under the K plus interest on the amount due at the rate of 9%; & (2) treble damages, if the failure to comply with the provisions of the statute is willful.; The court shall also award court costs & attorney fees incurred by the prevailing party in an action to recover amounts, interest, or damages due.	14 days	Mfg who employs Rep in Oregon can be sued in the Oregon.
Pennsylvania	Yes	all commissions plus exemplary damages not to exceed 2 times the commissions due plus attorney & court costs	14 days	If the court finds the action frivolous the Mfg can be awarded attorney’s fees & court costs	Laws of 1988, Act 184
South Carolina	No	all amounts due sales representatives plus punitive damages not to exceed 3 times the commissions due plus attorney’s fees & costs	Upon termination	If sales rep’s action is frivolous the Mfg will be awarded court costs & attorney’s fees Mfg who employs Rep in South Carolina can be sued in the South Carolina	Cumulative Supplement of Code of Laws of South Carolina, Vol. 13A, Chapter 65, pg. 59 and 60, Sections 39-65-10 through 39-65-80.
Tennessee	Yes	3 times the commission amount; plus attorney’s fees & costs	14 days	Mfg who employs Rep in Tennessee can be sued in the Tennessee	Tennessee Code Annotated, Section 47-50-114
Texas	Yes	Liable in a civil action for triple damages plus reasonable attorney’s fees & costs	Per K or 30 days	The statute expressly prohibits the parties from waiving any of the statute’s requirements, whether by express waiver or by an attempt to make a contract or agreement subject to the laws of another state. A provision establishing venue in another state is void	Texas Business and Commerce Code Annotated (Vernon, 1987), Section 35.81 through 35.86[6]
Virginia	Yes		As in contact, but not more than 30 days	Any provisions of the agreement intending to waive the rights of any part to any provision of the statute are void. The failure to execute a contract as required by the statute will not serve as an affirmative defense in any action relating to the statute
Washington	Yes	3 times the amount of damages due plus attorney’s fees & cost	Upon termination, all commissions due plus those earned but not due, must be paid within 30 days of termination		Revised code of the State of Washington, Title 49; 48 Sections 1 through 7
Wisconsin	No	Commissions due & exemplary damages of not more than 200% of the amount of the commissions due. In addition, the Mfg shall pay the independent sales representative all actual costs, including actual attorney’s fees	Upon termination	Mfg provide with 90 days prior written notice of a termination or substantial change in of the K, unless otherwise provided in the K between the parties.

States where the Sales Representative Law has been declared Unconstitutional.

STATE

IC LAW

DAMAGES

TIME TO PAY COMMISSIONS

WRITTEN K REQUIRED

CITATION

MISC.

Kentucky*

Yes

Commission due plus exemplary damages not to exceed 2 times commissions due plus attorney’s fees & costs.

30 days

Kentucky Revised Statutes, Chapter 371. Sections 371.370-371.375 and 371.380-371.385

In March 1995, the United States District court for the Western District of Kentucky found Kentucky’s statue unconstitutional under the Commerce Clause and the Equal Protection clause because it imposed additional burdens on manufacturers that did not have a permanent or fixed place of business in Kentucky. Cecil v Duck head Apparel Co., 895 F. Supp. 155 (W.D. Ky. 1995).

Florida*

Yes

Commissions plus punitive damages up to twice the commissions plus attorney’s fees

14 days after termination of the K

Official Florida Statutes, Section 686.201

In September 1992, the Court of Appeals for the third District of Florida held that Florida’s statute “on its face discriminates against interstate commerce by imposing requirements on out-of-state Manufacturers or companies which are not applicable to in-state business.” D.G.D., Inc. V. Jason Berkowitz, 10,115,605 So.2d 496 (Fla. Ct. App. 3d Dist. 1992)

States without laws concerning payment of Independent Contractor Commissions

Alaska

Connecticut

Delaware

Hawaii

Idaho

Montana

Nevada

New Mexico

North Dakota

Rhode Island

South Dakota

Utah

Vermont

West Virginia

Wyoming

[1] Mfg must maintain copy of signed receipt for the K between Mfg and Rep. Rep can require that commissions be paid by registered mail.

[2] (a) An accounting of the orders for which payment is made, including the customer’s name and invoice number; (b) the rate of commission on each order; and (c) information related to any chargeback’s included in the accounting. No contract can contain a provision waiving any rights established by this statute.

[3] provided the principal is furnished 10 days prior written notice of intent to file civil action for exemplary damages

[4] The notice must include reasons for non-renewal & 60 days must be allowed to correct any deficiencies. There are penalties for non-compliance but they must be settled by arbitration & cannot be pursued in a court of law

[5] The statute lists the requirements of the contract which must be included.

[6] In January 1993, the United States District Court for the Northern District of Texas held that the Texas sales representative statute was unconstitutional on Commerce Clause grounds because it applies exclusively to business with no permanent place of business in Texas. John Havir & Assoc. Inc. V. Tacoa, Inc., 810 F. Supp. 752 (N.D. Texas 1993). In 1995, the statute was amended to address the issues raised by the court decision.

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Lawsuit filed for skiing into snow………

Posted: October 5, 2010 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Isn’t’ that what skiing is all about?

A family has sued The Canyons ski resort for injuries sustained by their son when he skied into a wall of manmade snow. The boy sustained a traumatic brain injury. (Helmet?)

The young man was part of the Summit Ski team and was training at the time of the accident. The wall of snow was downhill from where the training was taking place.

See Canyons returns fire in court

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If you are out of shape, you face greater risk skiing…….

Posted: October 5, 2010 | Author: Recreation Law | Filed under: First Aid, Skiing / Snow Boarding | Leave a comment

A study out of Stockholm Sweden found that out of shape skiers faced a greater risk of heart attacks. Being out of shape combined with the altitude, and the cold weather increased the risks of medical problems.
Previous studies showed that 40% of all deaths on ski slopes were heart attacks. The study did find some interesting facts.

39% of the heart attacks occurred on the first day of skiing.
56% of the heart attacks occurred in the first two days of skiing.
50% of the heart attacks occurred within the first hour of activity.
The average time of suffering the first effects was within two hours of hitting the slopes.
50% of the people who suffered heart attacks had not done the recommended level of training before skiing. Patients who suffered heart attacks lived at an average elevation of 557 feet and suffered their attacks at an elevation of 4,429 feet.

The report recommended that skiers train by undertaking two hours of exercise each day before heading to the slopes.

One commentator described the exercise, elevation and cold as the perfect storm for heart attacks.

The article suggested that people going to high altitude to ski should:

Increase physical activity gradually.
If you’re going to a high-altitude resort, wait a day before hitting the slopes or engaging in other strenuous activities.
If it’s a very high altitude resort, ask your doctor about strategies for acclimatization.
Dress warmly, in layers.

See Physically Unprepared Skiers Face Heart Risk

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Criminal charges for rafting problems.

Posted: October 5, 2010 | Author: Recreation Law | Filed under: Criminal Liability, Whitewater Rafting | Leave a comment

Angry and Upset customers from some trips lead to an investigation which resulted in charges from other trips.

Patrick Cunningham, the owner of Hudson River Rafting Co and an employee Heath Bromley were charged with second-degree misdemeanor reckless endangerment for allegedly endangering rafters and a kayaker this summer.

The specific allegations leading to the charges are sending customers out without a licensed guide and deceiving customers about the need for licensed guides.

The allegation of sending a customer out without a licensed guide stems from having a customer paddle an inflatable kayak. Pretty hard to stick a guide in most inflatable kayaks……

The second charge was based on a trip that went out with a guide.

However, the article is full complaints and problems the company had this summer.

The investigation came after three people were injured this year on Hudson River Rafting Co. rafting trips, Curry said, and at least one group that included children was stranded on the Hudson River and had to hike several miles out of the woods to find help.
That stranding occurred when the rafters did not time the water release correctly, and wound up stuck in low water conditions, officials said.
….
Cunningham was charged for an Aug. 12 incident in which he allegedly failed to provide a guide and sent a man down the river in an inflatable kayak despite the fact the man told him he did not have any experience rafting or kayaking, Ovitt wrote in court records.
Cunningham, though, said the man “insisted” on trying to get through difficult rapids on his own despite his lack of experience. He was unable to make it through mid-level “Class 3” rapids, Cunningham said.

If every allegation is true and if this is worst raft company in the history of mankind, why are there criminal charges in this case? Just yank the permits so the 32 year old company can no longer operate. No one was hurt. What is the criminal part of this that warrants the filing of criminal charges?

I believe the relevant statute is:

ARTICLE 11. FISH AND WILDLIFE
TITLE 5. FISH AND WILDLIFE MANAGEMENT PRACTICES COOPERATIVE PROGRAM; PROHIBITIONS; TAKING OF FISH, WILDLIFE, SHELLFISH AND CRUSTACEA FOR SCIENTIFIC OR PROPAGATION PURPOSES; DESTRUCTIVE WILDLIFE; RABIES CONTROL; GUIDES; ENDANGERED SPECIES
Go to the New York Code Archive Directory
NY CLS ECL § 11-0533 (2010)
§ 11-0533. Licensing of guides
1. As used in this section, the term “guide” shall mean a person who offers services for hire part or all of which includes directing, instructing, or aiding another in fishing, hunting, camping, hiking, white water canoeing, rafting or rock and ice climbing.
2. All guides engaging in the business of guiding on all lands and waters of the state shall possess a license issued by the department, except for any persons operating or assisting upon a public vessel for hire (passenger carrying vessels), licensed by the United States Coast Guard or New York state, upon the Atlantic Ocean and all other marine and coastal waters, tidal waters including the Hudson river up to the Troy barrier dam, St. Lawrence river, Great Lakes and the navigable portion of their tributaries, and other navigable waters, as determined by the department.
3. Except while guiding for the purposes of hunting and/or fishing, no license as defined in section 11-0701 is required for such acts.
4. Employees of children’s camps as defined in subdivision one of section one thousand four hundred of the public health law shall be exempt from the provisions of subdivisions one and two of this section, provided such activities are carried out within the scope of said employment.
5. A license as required under subdivision two of this section shall be issued for a period of five calendar years and the fee therefor shall be established by the department, not to exceed two hundred dollars.
6. Every licensed guide while engaged in guiding shall wear in plain sight identification furnished by the department. Licensed guides shall be at least eighteen years of age. They shall be skilled in the use of boats and canoes whenever use of these craft is required and shall be persons competent to guide one or more of the following: camping, hunting, fishing, hiking, white water canoeing/rafting, rock or ice climbing or other similar activities. The department shall by regulation establish standards and procedures for testing and licensing of guides.
7. Any licensed guide who violates any provision of this chapter or who makes any false statement in his application for a license shall in addition to any other penalties, immediately surrender his license to the department, which may be revoked by the department for up to one year following the date of such surrender.
8. The department shall publish a list of guides annually.

The statute does not define a guide as someone who guides on rafts or kayaks in its definition, in section 1. However, the statute requires knowledge about whitewater rafting and canoeing in section 6.

The lessons to be learned here are simple.

Take care of all of your customers. Any angry customer may come back to haunt you.
Know the laws affecting your business or operation.
Be very wary when the district attorney is running for office and trying to get more time in the media.

See Rafting company owner charged with endangering customers

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$5 Million because a church took a kid skiing and allowed him to……..ski

Posted: October 5, 2010 | Author: Recreation Law | Filed under: Skier v. Skier | Leave a comment

The young man was unsupervised and was hit by another skier.

A Tampa, Florida jury awarded $5 million dollars to a then 14 year old boy who was injured in skier v. skier accident. The church, Idlewild Baptist Church took the plaintiff skiing to North Carolina in 2003. The plaintiff had never been skiing before. While skiing, he ended up on an expert slope and was hit by another skier, allegedly going fifty-five miles an hour.

How can you achieve a speed of 55 miles per hour in North Carolina? It is almost impossible on 95% of the slopes in Colorado. Someone’s expert was blowing snow to a Florida jury.

The collision left the boy with spinal damage and never injuries, which created a permanent limp, leg atrophy and a drop foot.

However, the church did screw up. The church told the mother, there would be one chaperone for every ten kids. The defendant church did not have enough chaperones. This allowed the plaintiff’s attorney to claim: “So his mother relied on Idlewild — of which they’d been members for 10 years — to act as a surrogate parent on the out-of-state trip….”

Surrogate parent? Do you believe the mother intended to create a surrogate parent relationship with the church when her son went skiing or this was a great trial argument?

The lawsuit also claimed that “… the teen did not receive ski lessons or instructions and no chaperone or ski partner stayed with him, according to the lawsuit.”

The boy’s mother was found 5% liable, which will reduce the damages paid to $4.75 million.
The plaintiff’s attorney is quoted at the end of the article as saying “”We hope this verdict will help other kids be protected in the future….”

I suspect the only thing that will change is churches will no longer take kids skiing. It will be considered too risky. Lose track of a 14 year old kid and lose $4.75 million.

However, there is a lesson to be learned from this.

Don’t make promises you can’t keep. If you say you are going to have X number of chaperones have at least that many chaperones.
If you say the youth will receive lessons, make sure he gets a ski lesson.
If you say the chaperones will be with the kids at all times, cancel the trip. You can’t stay with kids on a ski area, unless you have a one-to-one ration of adults to kids and even then I think you will lose some.
Tell the parents what skiing is, tell them you are transporting the kids up and back, but you can’t stay with the kids all the time. Tell the mother if she is worried she should come on the trip or not send her child. Tell the mother if she sends her child it is her responsibility to make sure the child knows and obeys the rules.

To see the article read Jury awards nearly $5 million to young man hurt on Idlewild church ski trip.

What do you think? Leave a comment.

Scary but probably coming to a mall near you.

Posted: October 3, 2010 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Original

Mountain Weather Workshop, Nov 10-12

Posted: October 1, 2010 | Author: Recreation Law | Filed under: Avalanche | Leave a comment

The Colorado Avalanche Information Center (CAIC), the American Institute for Avalanche Research and Education (AIARE), and the Colorado Mountain College – Leadville are sponsoring a three day workshop on Mountain Meteorology. Morning sessions will provide a basic understanding of meteorological principles applied to weather in mountainous areas. Afternoon sessions will focus on using publically available weather information to create a local forecast. Participants will interact with experienced weather forecasters and work in small groups to generate and present their own forecasts. The workshop is designed for avalanche practitioners and avid recreationalists. Anyone interested in mountain weather phenomena is welcome and no previous meteorological education is required. Participants are encouraged to bring their own laptop computer with wireless capability for the small group exercises.

Dr. John Snook, Mountain Weather and Avalanche Forecaster, CAIC-Boulder is the lead instructor for the workshop. Other instructors including National Weather Service forecasters and a specific workshop outline will be posted in October.

You can register online here at the Colorado Avalanche Information Center website.

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CALL FOR SESSION PROPOSALS: New Zealand Association of Leisure Studies

Posted: October 1, 2010 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

The 10th Australian and New Zealand Association of Leisure Studies (ANZALS) biennial conference is due to take place from the 6th to the 8th of December 2011 in Dunedin, New Zealand. In order to democratise the conference and to develop synergises across presentations the conference organising committee invites proposals from anyone who is interested in convening and chairing a themed session/s at the conference. Proposals should include a title for the session/s, identify the number of sessions being proposed, and describe the theme of the session/s and its rationale in no more than 350 words. A maximum of two sessions will be available to each theme and each session should consist of four papers. The responsibilities of themed session/s conveners include populating their session/s through a call for abstracts, ensuring the quality of submitted abstracts, and forwarding completed session details to the conference organising committee.

Proposals should be forwarded to Diana Evans (diana.evans@otago.ac.nz) by the 26th of November. Acceptance of sessions will be confirmed by the 10th of January, 201.

Alongside the themed sessions the conference organising committee will be making a general call for abstracts for papers in the next few months to ensure everyone who wishes to come and present at the conference has the opportunity to do so and is incorporated in the conference in a way that maximises the benefits to all conference participants.

Details of the conference are located at the following website: www.otago.ac.nz/anzals

Cheers,

Dr Shayne Galloway
School of Physical Education
Univeristy of Otago
PO Box 56, Dunedin, 9054
New Zealand
64 3 479 8649

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Get Outdoors! Become a Habitat Steward.

Posted: September 30, 2010 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Do you have an interest in spending time outdoors? Do you have a desire to help improve your community for
kids and wildlife? This unique opportunity may be right for you.

Become a Habitat Steward.

Participate in array of trainings led by local experts, from the how-to’s of wildlife friendly gardening
in your yard to coexisting with urban wildlife Learn hands-on how to develop and improve wildlife
habitat

Get to know Colorado’s native plants & native wildlife Improve your community by engaging in projects that improve habitat and create places for kids outdoors

THE TRAINING

Join a kick-off: October 3, 2-5 at the Butterfly Pavilion Personalize your learning, selecting trainings that interest you and fit your schedule Participate in habitat and wildlife garden improvement projects

TO LEARN MORE: visit http://nwfhabitatstewards.blogspot.com or contact Julie Gustafson (303-441-5152).

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Woman who went around barricades to sit and read a book awarded $300,000.

Posted: September 30, 2010 | Author: Recreation Law | Filed under: Ski Area | 2 Comments

Substantially, less than the $7.6 million she had requested for being partially paralyzed.

Mt. Baker ski area was sued for $7.6 million dollars by a 66 year old woman who was paralyzed when snow falling off a roof fell on her. She was sitting on a deck reading a book. To get to the spot where she was injured, she had gone around barricades set up because of the risk of the falling snow.

She sued for her injuries, and the jury returned a verdict finding that she was 85% to blame for her injuries. Consequently, the award was reduced by 85%.

It is very sad that the woman is a paraplegic. Her medical costs for the rest of her life will be horrific. However, she can read. She was reading a book and ignoring a sign to read a book is stupid.

See Negligence lawsuit against Mt. Baker ski Area goes to jury and Jury renders verdict in Mt. Baker lawsuit.

What do you think? Leave a comment.

Colorado State Parks Seeks Youth Ambassador

Posted: September 29, 2010 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

DENVER – Colorado State Parks is seeking a young adult between the ages of 18 and 24 to be part of America’s State Parks and serve as Colorado’s Youth Ambassador. The youth ambassador who is chosen will collaborate on a nationwide media and marketing program promoting outdoor recreation in Colorado State Parks.

The America’s State Parks campaign was launched in March 2010 as a public/private partnership effort to promote the natural, cultural and wellness value, as well as, the economic benefits provided by the parks in each of our 50 States.

The Colorado Youth Ambassador will work with Outdoor Nation, Imperial Multimedia, Colorado State Parks staff and their own social networks to document their outdoor experiences in state parks through articles, vlogs, and photo essays. In addition, the youth ambassador will have the opportunity to attend trainings, Youth Summit meetings and represent Colorado as our Youth Ambassador at the 2011 National Association of State Parks Directors meeting.

Interested applicants should submit a 500-word essay, video and references by Oct.1. Application and program details are available at www.parks.state.co.us/pages/ambassador.aspx.

Attracting nearly 12 million visitors per year, Colorado’s 42 State Parks are a vital cornerstone of Colorado’s economy and quality of life. Colorado State Parks encompass 225,260 land and water acres, offering some of the best outdoor recreation destinations in the state. Colorado State Parks is a leader in providing opportunities for outdoor recreation, protecting the state’s favorite landscapes, teaching generations about nature and partnering with communities. Colorado State Parks also manage more than 4,100 campsites, and 57 cabins and yurts. For more information on Colorado State Parks or to purchase an annual pass online, visit www.parks.state.co.us.

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Backpacking has a new slogan: get high, get wet and get…….

Posted: September 28, 2010 | Author: Recreation Law | Filed under: Uncategorized | 4 Comments

Correctly interpreting the billboards requires a little looking?

A new marketing campaign by Mission Beach Australia is posting billboards that say

Get High
Get Wet
Get Laid

Next to each is a picture which further clarifies the intent.

Get High has a picture of someone skydiving
Get Wet has a picture of people whitewater rafting
Get Laid has a picture of someone sleeping.

The town of Cairns in the area is a hub for whitewater rafting, skydiving, and diving on the great barrier reef. Most tourists bus in for the activities and bus out that night. The purpose of the billboards is to get the tourists to stick around a little longer.

This campaign follows last year’s campaign slogan which was “Cairns – Great Up Top, Fun Down Under.” Those billboards featured a young woman in a wet t-shirt and the copy “four play” and “get high before breakfast.”

When locals receive complaints about the marketing campaign they are told to “lighten up,” another great backpacking idea.

See Cheeky Mission Beach signs cause a stir and Cheeky beach signs cause a stir.

What do you think? Leave a comment.

Keywords:
#outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #advertising, #Australia, #Cairns, #Mission Beach, #marketing, #get laid, #skydiving, #whitewater rafting, #backpacking, #tourism,
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It's not what I write, It's what you Learn

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The decision states that under Utah law gross negligence must always be decided by the trier of fact.

That is a great legal statement that can be relied upon by all recreational programs and businesses in the state of Utah for the future.

So?

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Or better where should I not go recreate!

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Opinion By: Karwacki

OPINION

2 A. EXEMPTION FROM LIABILITY

I.

II.

III.

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No swings, teeter totters or anything above a blade of grass…artificial grass.

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Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

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States where the Sales Representative Law has been declared Unconstitutional.

States without laws concerning payment of Independent Contractor Commissions

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