Federal Volunteer Immunity Act
Posted: March 9, 2015 Filed under: Uncategorized | Tags: Federal Volunteer Immunity Act, Volunteer, Volunteer Immunity Leave a commentTITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 139. VOLUNTEER PROTECTION
Go to the United States Code Service Archive Directory
§ 14502. Preemption and election of State nonapplicability
§ 14503. Limitation on liability for volunteers
§ 14504. Liability for noneconomic loss
§ 14501. Findings and purpose
(a) Findings. The Congress finds and declares that–
(1) the willingness of volunteers to offer their services is deterred by the potential for liability actions against them;
(2) as a result, many nonprofit public and private organizations and governmental entities, including voluntary associations, social service agencies, educational institutions, and other civic programs, have been adversely affected by the withdrawal of volunteers from boards of directors and service in other capacities;
(3) the contribution of these programs to their communities is thereby diminished, resulting in fewer and higher cost programs than would be obtainable if volunteers were participating;
(4) because Federal funds are expended on useful and cost-effective social service programs, many of which are national in scope, depend heavily on volunteer participation, and represent some of the most successful public-private partnerships, protection of volunteerism through clarification and limitation of the personal liability risks assumed by the volunteer in connection with such participation is an appropriate subject for Federal legislation;
(5) services and goods provided by volunteers and nonprofit organizations would often otherwise be provided by private entities that operate in interstate commerce;
(6) due to high liability costs and unwarranted litigation costs, volunteers and nonprofit organizations face higher costs in purchasing insurance, through interstate insurance markets, to cover their activities; and
(7) clarifying and limiting the liability risk assumed by volunteers is an appropriate subject for Federal legislation because–
(A) of the national scope of the problems created by the legitimate fears of volunteers about frivolous, arbitrary, or capricious lawsuits;
(B) the citizens of the United States depend on, and the Federal Government expends funds on, and provides tax exemptions and other consideration to, numerous social programs that depend on the services of volunteers;
(C) it is in the interest of the Federal Government to encourage the continued operation of volunteer service organizations and contributions of volunteers because the Federal Government lacks the capacity to carry out all of the services provided by such organizations and volunteers; and
(D) (i) liability reform for volunteers, will promote the free flow of goods and services, lessen burdens on interstate commerce and uphold constitutionally protected due process rights; and
(ii) therefore, liability reform is an appropriate use of the powers contained in article 1, section 8, clause 3 of the United States Constitution, and the fourteenth amendment to the United States Constitution.
(b) Purpose. The purpose of this Act [42 USCS §§ 14501 et seq.] is to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.
§ 14502. Preemption and election of State nonapplicability
(a) Preemption. This Act [42 USCS §§ 14501 et seq.] preempts the laws of any State to the extent that such laws are inconsistent with this Act [42 USCS §§ 14501 et seq.], except that this Act [42 USCS §§ 14501 et seq.] shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity.
(b) Election of State regarding nonapplicability. This Act [42 USCS §§ 14501 et seq.] shall not apply to any civil action in a State court against a volunteer in which all parties are citizens of the State if such State enacts a statute in accordance with State requirements for enacting legislation–
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act [42 USCS §§ 14501 et seq.] shall not apply, as of a date certain, to such civil action in the State; and
(3) containing no other provisions.
§ 14503. Limitation on liability for volunteers
(a) Liability protection for volunteers. Except as provided in subsections (b) and (d), no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if–
(1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;
(2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity;
(3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and
(4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the State requires the operator or the owner of the vehicle, craft, or vessel to–
(A) possess an operator’s license; or
(B) maintain insurance.
(b) Concerning responsibility of volunteers to organizations and entities. Nothing in this section shall be construed to affect any civil action brought by any nonprofit organization or any governmental entity against any volunteer of such organization or entity.
(c) No effect on liability of organization or entity. Nothing in this section shall be construed to affect the liability of any nonprofit organization or governmental entity with respect to harm caused to any person.
(d) Exceptions to volunteer liability protection. If the laws of a State limit volunteer liability subject to one or more of the following conditions, such conditions shall not be construed as inconsistent with this section:
(1) A State law that requires a nonprofit organization or governmental entity to adhere to risk management procedures, including mandatory training of volunteers.
(2) A State law that makes the organization or entity liable for the acts or omissions of its volunteers to the same extent as an employer is liable for the acts or omissions of its employees.
(3) A State law that makes a limitation of liability inapplicable if the civil action was brought by an officer of a State or local government pursuant to State or local law.
(4) A State law that makes a limitation of liability applicable only if the nonprofit organization or governmental entity provides a financially secure source of recovery for individuals who suffer harm as a result of actions taken by a volunteer on behalf of the organization or entity. A financially secure source of recovery may be an insurance policy within specified limits, comparable coverage from a risk pooling mechanism, equivalent assets, or alternative arrangements that satisfy the State that the organization or entity will be able to pay for losses up to a specified amount. Separate standards for different types of liability exposure may be specified.
(e) Limitation on punitive damages based on the actions of volunteers.
(1) General rule. Punitive damages may not be awarded against a volunteer in an action brought for harm based on the action of a volunteer acting within the scope of the volunteer’s responsibilities to a nonprofit organization or governmental entity unless the claimant establishes by clear and convincing evidence that the harm was proximately caused by an action of such volunteer which constitutes willful or criminal misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed.
(2) Construction. Paragraph (1) does not create a cause of action for punitive damages and does not preempt or supersede any Federal or State law to the extent that such law would further limit the award of punitive damages.
(f) Exceptions to limitations on liability.
(1) In general. The limitations on the liability of a volunteer under this Act [42 USCS §§ 14501 et seq.] shall not apply to any misconduct that–
(A) constitutes a crime of violence (as that term is defined in section 16 of title 18, United States Code) or act of international terrorism (as that term is defined in section 2331 of title 18) for which the defendant has been convicted in any court;
(B) constitutes a hate crime (as that term is used in the Hate Crime Statistics Act (28 U.S.C. 534 note));
(C) involves a sexual offense, as defined by applicable State law, for which the defendant has been convicted in any court;
(D) involves misconduct for which the defendant has been found to have violated a Federal or State civil rights law; or
(E) where the defendant was under the influence (as determined pursuant to applicable State law) of intoxicating alcohol or any drug at the time of the misconduct.
(2) Rule of construction. Nothing in this subsection shall be construed to effect subsection (a)(3) or (e).
§ 14504. Liability for noneconomic loss
(a) General rule. In any civil action against a volunteer, based on an action of a volunteer acting within the scope of the volunteer’s responsibilities to a nonprofit organization or governmental entity, the liability of the volunteer for noneconomic loss shall be determined in accordance with subsection (b).
(b) Amount of liability.
(1) In general. Each defendant who is a volunteer, shall be liable only for the amount of noneconomic loss allocated to that defendant in direct proportion to the percentage of responsibility of that defendant (determined in accordance with paragraph (2)) for the harm to the claimant with respect to which that defendant is liable. The court shall render a separate judgment against each defendant in an amount determined pursuant to the preceding sentence.
(2) Percentage of responsibility. For purposes of determining the amount of noneconomic loss allocated to a defend-ant who is a volunteer under this section, the trier of fact shall determine the percentage of responsibility of that defendant for the claimant’s harm.
§ 14505. Definitions
For purposes of this Act [42 USCS §§ 14501 et seq.]:
(1) Economic loss. The term “economic loss” means any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities) to the extent recovery for such loss is allowed under applicable State law.
(2) Harm. The term “harm” includes physical, nonphysical, economic, and noneconomic losses.
(3) Noneconomic losses. The term “noneconomic losses” means losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation and all other nonpecuniary losses of any kind or nature.
(4) Nonprofit organization. The term “nonprofit organization” means–
(A) any organization which is described in section 501(c)(3) of the Internal Revenue Code of 1986 [26 USCS § 501(c)(3)] and exempt from tax under section 501(a) of such Code [26 USCS § 501(a)] and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534 note); or
(B) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534 note).
(5) State. The term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, any other territory or possession of the United States, or any political subdivision of any such State, territory, or possession.
(6) Volunteer. The term “volunteer” means an individual performing services for a nonprofit organization or a governmental entity who does not receive–
(A) compensation (other than reasonable reimbursement or allowance for expenses actually incurred); or
(B) any other thing of value in lieu of compensation, in excess of $ 500 per year, and such term includes a volunteer serving as a director, officer, trustee, or direct service volunteer.
California case examines the relationship between a common carrier and public policy when applied to a ski area chair lift.
Posted: March 9, 2015 Filed under: California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Chair Lift, Gross negligence, Mammoth Mountain Ski Area, Platzer, Public Policy, Release, ski area Leave a commentA release and the fact the statute allowed the use of releases by common carriers in a recreational setting worked to save the ski area in this lawsuit.
State: California: Court of Appeal of California, Third Appellate District
Plaintiff: Joseph Platzer, a Minor, etc., et al.,
Defendant: Mammoth Mountain Ski Area
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: release
Year: 2002
Holding: for the Defendant
Although a simple case, this decision clarifies several issues according to California law. The minor plaintiff was in a ski lesson at the defendant ski area. While riding a lift the minor fell off the chairlift. The minor plaintiff’s mother sued.
The trial court dismissed the negligence claims based on a release the mother signed when she signed her child up for lessons. The court then had a trial on the plaintiff’s claims of gross negligence. The defendant won the jury trial and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The arguments by the plaintiff to void the release were based on a public policy argument. Chair lifts are common carriers in California. A common carrier owes a higher duty of care to riders then a reasonable standard of care. Common carriers are governed by a statue in California. Normally, a common carrier cannot have a “rider” release the common carrier in advance for negligence.
At common law a common carrier might make any other contract relative to the carriage of property intrusted to it, save one exempting it from liability for any kind of negligence. This rule was founded upon considerations of public policy, it being deemed derogatory thereto to allow a common carrier to contract against its own negligence, because to permit this had a tendency to promote negligence.
However this rule had been changed in California by the statute controlling common carriers.
…as far as ordinary negligence is concerned, the rule at common law has been abrogated by our code (sec. 2174) 3 to the extent that the shipper and carrier may now contract for the purpose of limiting the liability of the latter therefor.
Common carriers where prohibited from obtaining a release from the public for its services. That was based on the value of the services provided to the public. The public cannot live without the services provided by a common carrier or an industry labeled as covered by public policy. A common carrier is:
… a business of a type generally thought suitable for public regulation. 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. 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.
Because the public needed the services offered by the common carrier and the public was not able to bargain for the services, the common carrier was regulated and prohibited from contracting away its liability.
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.
The issue that is always brought up was the ability of the public to bargain away the exculpatory clause in the agreement by paying for more money.
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.
The argument is made occasionally by courts that clients should be allowed to bargain (pay more money) for the service or recreation without having to sign a release. However no courts have specially required it.
This control over the contract and the situation and the need of the public created a situation that evolved into a fear that the common carrier would take advantage of its position. “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.”
This limitation applied to common carriers applies to negligence and not to gross negligence. Consequently, once the release stopped the negligence claim the trial still went forward on the gross negligence claim. The gross negligence was not appealed, probably because a jury had made the ruling against the plaintiff and in favor of the defendant.
Rarely are decisions made by juries over turned on appeal unless the decision is just beyond understanding how the jury came to its decision by the court.
The other issue the court looked at was the public policy exception as applied to a recreation provider. The court first looked at what controlled the situation, the common law or the statute governing common carriers. Statutes always control or supersede the common law. “A specific statute on a subject controls over a general provision.”
Although the defendant’s chairlift was a common carrier, it still did not fully fit the definition because the activity of skiing was not an essential activity. Because it was recreational, it did not require the strict scrutiny of its actions like a common carrier.
On top of that, the statute specifically excluded chair lifts from the Public Utilities Commission which oversees common carriers and business providing essential public services.
The final issue was the release was admitted into trial. The plaintiff objected to the admission of the release, but did not state the legal basis for the objection. Without a legal basis for the objection there is nothing for the appellate court to rule on.
However the court did state.
…we conclude the release was relevant to the issue of gross negligence. Among other things, it described the inherent risks of skiing and using the ski lifts. The court did not abuse its discretion in admitting the release into evidence.
This ruling may be of value to attorneys attempting to enter a release into evidence in the future.
So Now What?
The case is great in attempting to understand the confluence of statute and common law as well as how the statute and common law conflict or are interwoven.
Here the ski area had a release signed which saved the day. The duty of having a kid in a ski school class as well as on a chair lift created different standards of care owed to the plaintiff which this court wove its way through.
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Facebook Page: Outdoor Recreation & Adventure Travel Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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2015 SLRA – Inherent Risk: Should the Phrase be in your Release?
Posted: March 7, 2015 Filed under: Release (pre-injury contract not to sue) | Tags: Inherent Risk, Release, Risk, Scope Leave a commentPresentation at the 2015 Sport and Recreation Law Association conference.
“Inherent Risk” Should the Phrase be used in your Release?
Colorado Ski Safety Act
Colorado Equine Liability Act
Delaware Equine Liability Act
Georgia Limited Liability of Owners and Operators of Sport Fishing Locations
UIAA Ice Climbing News
Posted: March 7, 2015 Filed under: Uncategorized | Tags: Ice climbing, UIAA, x, y, z Leave a comment
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Volunteers Needed for the Breckenridge Spring Beer Festival to Support the Colorado Avalanche Information Center
Posted: March 6, 2015 Filed under: Avalanche | Tags: Beer Festival, Breckenridge, Breckenridge Colorado, CAIC, x, y, z Leave a commentWe are still searching for volunteers for the Breckenridge Spring Beer Festival. This is a great opportunity to volunteer for an event that supports avalanche forecasting and education throughout the State of Colorado.
The Breckenridge Spring Beer Festival will be held Saturday April 11th from 12-5pm on Ridge Street in downtown Breckenridge. There are la lot of shifts still available. All volunteers will receive a commemorative event volunteer t-shirt and the option to purchase a $15 tasting mug after their shift. We can also sign off on volunteer hours needed for various reasons. The Breckenridge Spring Beer Festival is a fundraiser for the Friends of the Colorado Avalanche Information Center.
You can find the Breckenridge Spring Beer Festival volunteer sign up sheet HERE.
Please let us know if you have any questions and we’d love to see you this year!
Cheers,
Friends of CAIC
2015 SRLA – Volunteers
Posted: March 5, 2015 Filed under: Uncategorized Leave a commentPresentation at the 2015 Sport and Recreation Law Association Conference
Presentation PowerPoint:
Federal Volunteer Immunity Act
Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357
Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729
Stemke v. Mastrogiacomo, 2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)
The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837
Wagner v. McGrady, 2009-Ohio-987; 2009 Ohio App. LEXIS 798
Flow Sports Inc. Recalls Snowboard Bindings Due to Fall Hazard
Posted: March 5, 2015 Filed under: Uncategorized | Tags: Consumer Product Safety Council, CPSC, Flite, Flite LTD, Flite MTN, Flow, Flow Sports, Flow Sports Inc., Haylo, Micron Youth, Recall, Snowboard Binding, snowboarding Leave a commentName of Product: Flow 2014 Flite-series snowboard bindings
Hazard: A pin can disengage and cause the binding to open, posing a fall hazard.
Remedy: Repair, replace, refund
Consumers should immediately stop using the recalled snowboard bindings and contact Flow Sports for a free repair or to return the bindings for free replacement bindings or a full refund.
Consumer Contact: Flow Sports toll-free at (855) 920-9955 from 9 a.m. to 9 p.m. PT Monday through Friday, or online at http://www.flow.com and click on “Safety Notice” for more information.
Units: About 10,400
Description: This recall involves Flow 2014 Flite-series snowboard bindings with model names Flite, Haylo, Micron Youth, Flite LTD and Flite MTN. The bindings have a snaplock lever on the rear, a cable adjustment dial on the side of the baseplate, a matte texture finish on the baseplate and a glossy “Flow” and Flow’s logo on the hiback. They are black; black and white; black, white and blue; or black, white, blue and yellow. “Flow” is printed on the side of the bindings.
Incidents/Injuries: Flow Sports has received 30 reports of the pins disengaging from the bindings. No injuries have been reported.
Sold at: Dick’s Sporting Goods, EVO, SNSboards, Sport Chalet, The House, Wired Sport, Zumiez and other stores nationwide and online from July 2014 through February 2015 for between $110 and $150 for the bindings.
Importer: Flow Sports Inc., of San Clemente, Calif.
Manufactured in: China
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, Recall, CPSC, Consumer Product Safety Council, Flow, Snowboarding, Snowboard Binding, Flite, Haylo, Micron Youth, Flite LTD, Flite MTN, Flow Sports Inc., Flow Sports,
2014-2015 In bound ski/board fatalities
Posted: March 4, 2015 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Arizona Snowbowl, Breckenridge, Chair Lift, Copper Mtn, Crested Butte, Eldora, fatality, Hunter Mountain, Hunter Mtn, Jackson Hole, Keystone, Keystone Resort, Mission Ridge Ski, Mt. Hood Skibowl, Nashoba Valley Ski Area, Northstar California ski resort, Pine Knob, ski area, skiing, Snowbird Ski Resort, snowboarding, Stowe Mountain Resort, Tubing 2 CommentsIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of February 26, 2015. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Red type is natural or medical conditions that occurred inbounds on the slopes
Green Type is Fatalities while sledding at the Resort
Blue Type is a Lift Accidents
2014 – 2015 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
11/15 |
CO |
Breckenridge |
|
|
|
Natural |
|
48 |
M |
Boulder, CO |
|
|
|
|
2 |
12/8 |
CO |
Eldora |
Jolly Jug |
|
Hit tree |
|
Ski |
22 |
M |
Coral Springs, FL (CU student) |
Yes |
||
|
3 |
12/12 |
CO |
Keystone |
Spring Dipper |
Intermediate |
Hit Tree |
Blunt force trauma |
Boarder |
26 |
M |
Silverthorne |
Yes |
||
|
4 |
|
MI |
Pine Knob |
|
|
Hit tree |
|
Ski |
51 |
F |
Shelby Township |
|
||
|
5 |
12/28 |
WY |
Jackson Hole |
Brush Alley |
|
Found inverted in the snow |
Asphyxiation |
Skier |
54 |
M |
Pepper Pike, OH |
|
||
|
6 |
12/30 |
NY |
Hunter Mtn |
D Lift |
|
Ski caught lift tower |
Fall |
Skier |
44 |
F |
Brooklyn, NY |
|
||
|
7 |
1/31 |
OR |
Mt. Hood Skibowl |
Middle Reynolds Trail |
Expert |
Caught an edge, fell, landing on his head and chest |
blunt-force head trauma |
Skier |
37 |
M |
Medford, OR |
|
||
|
8 |
|
CO |
Keystone Resort |
Elk Run |
Intermediate |
|
|
|
18 |
M |
|
Yes |
||
|
9 |
1/7 |
UT |
Snowbird Ski Resort |
base of the Little Cloud chairlift |
|
struck a tree |
|
Skier |
63 |
M |
Salt Lake City, UT |
Yes |
||
|
10 |
1/17 |
MA |
Nashoba Valley Ski Area |
Lobo trail |
Expert |
Hit a tree |
|
Skier |
13 |
M |
Westford |
Yes |
||
|
11 |
1/18 |
CA |
Northstar California ski resort |
Rail Splitter |
Advanced |
|
|
Skier |
67 |
M |
Van Nuys |
|
|
|
|
12 |
1/18 |
AZ |
Arizona Snowbowl |
|
|
Medical episode & fell to snow |
|
Skier |
46 |
M |
Newbury, CA |
|
||
|
13 |
1/19 |
CO |
Copper Mtn |
|
|
Medical |
|
Board |
55 |
F |
Reeds Spring, MO |
Yes |
||
|
14 |
1/22 |
VT |
Stowe Mountain Resort |
|
|
|
|
|
64 |
M |
|
|
|
|
|
15 |
1/23 |
WA |
Mission Ridge Ski |
|
|
lost control on a ski run |
|
Skier |
17 |
M |
|
|
|
|
|
16 |
1/23 |
CO |
Crested Butte |
Lower Treasury |
Intermediate |
Hit a tree |
multiple traumatic chest injuries |
Skier |
13 |
M |
Olathe, CO |
Yes |
||
|
17 |
|
VT |
Stowe Mountain Resort |
|
|
|
medical-related |
Skier |
64 |
M |
|
|
|
|
|
18 |
2/6 |
VT |
Burke Mountain Resort |
|
|
Hit a tree |
|
Skier |
27 |
F |
St. Johnsbury, VT |
Yes |
||
|
19 |
2/7 |
UT |
Park City Mtn Resort |
|
|
hit a padded pole |
aorta ruptured |
Skier |
25 |
M |
|
|
|
|
|
20 |
2/11 |
CO |
Keystone Resort |
Anticipation |
Intermediate |
Hit a tree |
blunt force trauma |
Skier |
43 |
M |
Conifer, CO |
Yes |
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21 |
2/14 |
NM |
Ski Santa Fe |
|
|
struck a tree |
|
Skier |
33 |
F |
El Paso, Texas |
|
|
|
|
22 |
2/7 |
CO |
|
|
|
|
|
Skier |
60 |
M |
|
|
|
|
|
22 |
2/23 |
CO |
Breckenridge Ski Resort |
|
|
|
multiple skull fractures |
Skier |
22 |
M |
|
No |
||
|
23 |
2/26 |
CO |
Breckenridge Ski Resort |
Northstar |
Intermediate |
Hit tree |
|
Skier |
46 |
M |
Rolling Meadows, IL |
Yes |
|
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
5 Medical causes, 1 lift accident and 17-18 fatalities 11 hitting trees or a pole
If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-
Our Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
5 Medical causes, 1 lift accident and 17-18 fatalities 11 hitting trees or a pole
If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Snowboarding, Fatality, Ski Area, Tubing, Breckenridge, Chair Lift, Hunter Mountain, Jackson Hole, Pine Knob, Eldora, Keystone, Breckenridge, Eldora, Keystone, Pine Knob, Jackson Hole, Hunter Mtn, Mt. Hood Skibowl, Snowbird Ski Resort, Nashoba Valley Ski Area, Northstar California ski resort, Arizona Snowbowl, Copper Mtn, Keystone Resort, Stowe Mountain Resort, Mission Ridge Ski, Crested Butte, Breckenridge,
Another Bike Book Coming from Carlton Reid about Cycling after the 60’s. A follow up to Roads Were Not Built for Cars
Posted: March 3, 2015 Filed under: Uncategorized | Tags: x, y, z Leave a comment |
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| Thanks to 206 backers – as of this second on 27th Feb – my project is £897 over the funding target. This means I am now locked in to researching and writing Bike Boom. However, the campaign is still live and there’s another 17 days available for people to bag rewards. With more funds I can add more stuff – such as new features for the digital versions of the book. But I’m going to start with doubling the pagination of the colour plate section.That is, if I reach £10,000. This, in Kickstarter parlance, is a STRETCH GOAL.Such goals add value for both the existing pledgers and those thinking of jumping on in.If I reach £15,000 in pledges I’ll produce a poster, for all except the first two levels, featuring a huge number of people on bicycles with a headline calling for more cycling facilities to be provided in order to cater for the growing demand.
If you have other ideas for possible stretch goals please let me know. Thanks. Carlton |
Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Posted: March 2, 2015 Filed under: California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) | Tags: Equine, Fraudulent Misrepresentation, horseback riding, Nondisclosure, Release, Rescission Leave a commentThe easiest way to void a release is to say the release has no legal value or is not worth anything. Don’t be afraid to be honest with your clients.
State: California: Court of Appeal of California, First Appellate District, Division Five.
Plaintiff: Diana L. Guido et al.
Defendant: Charles Koopman
Plaintiff Claims: negligence
Defendant Defenses: release
Holding: for the defendant
Year: 1991
This case would have been decided for the plaintiff but for one small fact. The plaintiff was an attorney. If the plaintiff wasn’t an attorney the screw ups by the defendant would have allowed any other plaintiff to win the case.
The plaintiff signed up with the defendant to take horseback riding lessons. When she did so she was given a release so sign. She was hesitant about signing the release. The defendant told her it had no value and he only did it because his insurance company made him do it.
In her deposition Guido [plaintiff] testified she “just didn’t feel comfortable signing something that said ‘Release’ on it on the top.” However, she signed it without reading it because respondent [defendant] advised her, “… It doesn’t mean anything. It is something that I need to have you sign, because my insurance company won’t let me give lessons unless I have people sign this. … As a matter of fact, the insurance company wants me to give the students this long detailed form, which I don’t do, because it scares them away when they see this long, detailed form.
The plaintiff took lessons from the defendant twice a week for 9 months before she was bucked from a horse suffering injuries. She had bucked from a horse while taking lessons with this defendant earlier. She sued and the trial court dismissed the complaint based on the release.
Analysis: making sense of the law based on these facts.
This case has a few interesting statements. The plaintiff stated she did not think that an inherent risk of riding a horse was the risk of being thrown off the horse. The court responded with this statement.
As to appellants’ argument that the release is ineffective because Guido did not think being thrown off a horse was an inherent risk of horseback riding, we are of the contrary view–that it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse. The cases of injuries from horseback riding are numerous, and we have found none which describe this risk as unexpected or extraordinary.
The next argument made by the plaintiff was the release was void because it was against public policy. The court’s analysis of public policy in this case was well thought out and well written.
In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the 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 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 is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
This analysis of public policy was along the same lines as all other states that have looked at the issue with regard to releases for recreational activities.
Other than in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 reviewed in Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. No court has found a recreational activity to be subject to public policy exceptions. For a business to be found to be subject to the public policy exception to using a release it must be found to be:
… a business of a type generally thought suitable for public regulation.
… the business invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
… the business 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.
…, the person or property of the purchaser is placed under the control of the business, subject to the risk of carelessness by the seller or his agents.
With the sole exception of Oregon, the public policy argument to void a release has never worked against a recreational business. The court then looked at whether horseback riding was recreational. The analogy started with the settling of the west up to modern times.
However, for better or worse, the times have changed, and except for a few working cattle ranches where the cow pony has not been completely replaced by the pickup truck, equestrian activities are largely confined to the entertainment arena.
We are unaware of any constitutional or statutory provision that would place horseback riding within the “public interest” category.
Finally the court looked at whether the release was void because of the statements made by the defendant. This is called fraudulent misrepresentation and allows a party to rescind the release. This can also be defined as nondisclosure of a material fact to the contract, which allows rescission of the release. A fraudulent misrepresentation is one made to convince someone to do something.
The representations need not be made with knowledge of actual falsity but also include the “false assertion of [a] fact by one who has no reasonable grounds for believing his own statements to be true, and when made with [the] intent to induce the other to alter his position, to his injury.
The key is the reliance must be justified. Meaning the misrepresentation must be significant so that the fact being misrepresented is important. The other requirement is the person relying on the misrepresentation must do so because it is on its face seemingly valid. “Justifiable reliance is an essential element of a claim for fraudulent misrepresentation, and the reasonableness of the reliance is ordinarily a question of fact.”
The court found the reliance was not justified in this case but for only one reason. The plaintiff was an attorney.
Guido’s [plaintiff] deposition testimony on which appellants rely also reveals that she is a practicing attorney and uses releases in her practice. In essence, she is asking this court to rule that a practicing attorney can rely on the advice of an equestrian instructor as to the validity of a written release of liability that she executed without reading.
In determining whether one can reasonably or justifiably rely on an alleged misrepresentation, the knowledge, education and experience of the person claiming reliance must be considered.
The appellate court found that an attorney could not rely on the legal statements of a non-attorney. “Under these circumstances, we conclude as a matter of law that any such reliance was not reasonable.”
This is a remarkable statement from the court. It makes sense, but at the same time, it has no real value because you are not going to review every participant to determine if they are a lawyer so you can then on worry about misrepresenting material facts about your release.
So Now What?
If the misrepresentation had been made to anyone else this decision would have gone the other way.
The defendant’s fear in having customers sign a release or be scared away from his business because of a release used to be common. However it is an incorrect fear.
The first thing to remember is the people the release scares away are the people who will be hurt and sue if they are hurt. Part of the value of a good release is that it will scare some people away.
The next issue is it will scare everyone away. I had one client have 40,000 people a year for more than ten years sign the release. Over those ten years 26 people refused to sign the release.
You have an obligation to your clients to tell them of the risks of the activity. Nothing can be worse than to have someone on a trip who is terrified because they did not understand the real risks of the activity. It is even worse when someone is injured or dies because they did not understand the risks. Your release must tell the people what they are getting into. It will save you time and money, it will make your customer’s trip better and it will save your butt!
This defendant got lucky.
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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 R
Outdoor Recreation Insurance, Risk Management, and Law
ecreation 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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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Equine, Horseback Riding, Fraudulent Misrepresentation, Release, Rescission, Nondisclosure,
Guido et al., v. Koopman, 1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350
Posted: February 28, 2015 Filed under: California, Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Release (pre-injury contract not to sue) | Tags: Equine, Fraudulent Misrepresentation, horseback riding, Nondisclosure, Release, Rescission Leave a commentGuido et al., v. Koopman, 1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350
Diana L. Guido et al., Plaintiffs and Appellants, v. Charles Koopman, Defendant and Respondent.
No. A052006
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE.
1 Cal. App. 4th 837; 2 Cal. Rptr. 2d 437; 1991 Cal. App. LEXIS 1425; 91 Daily Journal DAR 15350
December 12, 1991, Decided
SUBSEQUENT HISTORY: [***1] Review Denied February 26, 1992, Reported at 1992 Cal. LEXIS 2024.
PRIOR HISTORY: Superior Court of the City and County of San Francisco, No. 897795, Stuart R. Pollak, Judge.
COUNSEL: McTernan, Stender & Wash and Marvin Stender for Plaintiffs and Appellants.
Drevlow, Murray & Payne and Mary S. Cain for Defendant and Respondent.
JUDGES: Opinion by Haning, Acting P. J., with King, J., and Poche, * concurring.)
* Associate Justice of the Court of Appeal, First District, Division Four, sitting under assignment by the Chairperson of the Judicial Council.
OPINION BY: HANING, Acting P. J.
OPINION
[*839] [**438] Plaintiffs and appellants Diana L. Guido and Donald Schwartz, a married couple, appeal from a summary judgment, enforcing a release from all liability, in favor of defendant and respondent Charles Koopman, doing business as The Academy of Equestrian Arts (the Academy). Appellants contend the release is unenforceable because it was executed in reliance on respondent’s misrepresentation that it was unenforceable. We affirm.
Facts and Procedural History
Guido [***2] filed her complaint against three groups of defendants for personal injuries allegedly resulting from three separate, sequential accidents during [*840] the summer of 1988: two automobile accidents and a horseback riding accident. These incidents were unrelated, but were joined in the complaint because “[p]laintiff is in doubt as to which of the defendants … she is entitled to redress because there is a question as to which defendant is liable and to what extent for injuries, as she was injured in each incident.” Guido’s husband, Donald Schwartz, filed a separate action for loss of consortium, and the two actions were consolidated.
The summary judgment motion was brought by respondent and is addressed solely to the cause of action against him involving the horseback riding accident.
On September 29, 1987, Guido visited the Academy to inquire about taking horseback riding lessons from respondent. At that time she signed a document entitled “Release,” given to her by respondent. That document reads:
“Release
“I Hereby Release [the Academy], Charles Koopman, Donna Koopman, Managers, Trainers, Instructors and Emplyees [sic] of and From All Claims Which May Hereafter Develop [***3] or Accrue to me on account of, or by Reason of, Any Injury, Loss or Damage, Which May Be Suffered by Me or to Any Property, Because of any Matter, Thing or Condition, Negligence or Default Whatsoever, and I Hereby Assume and Accept the Full Risk and Danger of Any Hurt, Injury or Damage Which May Occur Through or by Reason of Any Matter, Thing or Condition, Negligence or Default, of Any Person or Persons Whatsoever.”
After signing the release, Guido took lessons from respondent, as often as twice a week, until the accident on June 16, 1988, when she allegedly was thrown from one of respondent’s horses.
Respondent’s motion for summary judgment was based, in part, on the ground that the waiver precluded Guido from pursuing any claims against him. The trial court found there was no triable issue of any material fact and granted summary judgment for respondent.
Discussion
[HN1] “[S]ummary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party [*841] is entitled to a judgment as a matter of law. …” ( Code Civ. Proc., § 437c, subd. (c).) The issues [**439] presented are whether the release is voidable and, if [***4] so, whether the undisputed facts prevent appellants from avoiding the release.
Appellants advance two theories for avoidance of the release: First, in Guido’s declaration in opposition to respondent’s summary judgment motion, she states: “… I am an attorney. When I signed the release it was my understanding that releases from negligence were against public policy. [P] … [P] … I am not an expert on horses. But I do not think that an inherent risk of horseback riding is being thrown off of a horse ….” Second, although not mentioned in Guido’s declaration, appellants argued to the trial court, as she does on appeal, that respondent told Guido the release was “meaningless.”
(1) With regard to appellants’ initial contention regarding the legality of the release, they are in error. [HN2] Civil Code section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt anyone from [the] responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” [HN3] This statute has been interpreted to mean that “a contract exempting from liability for ordinary [***5] negligence is valid where no public interest is involved ….” (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 631, p. 569; Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 97 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]; Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 148-149 [277 Cal.Rptr. 887].)
[HN4] Public interest or policy is generally defined by the constitution, statutes or judicial precedent. “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the 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 great importance to the public, which is often a matter of practical necessity for some members of the public. [***6] 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 [*842] 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 is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” ( Tunkl v. Regents of University of California, supra, 60 Cal.2d at pp. 98- 101, fns. omitted.)
(2) There was a time during the development of this nation, particularly during the early westward migration, that one’s survival frequently depended upon a good horse [***7] and the ability to remain in the saddle. Indeed, legend has it that so vital was the horse to our well-being in the American West that horse thieves were routinely hanged, with a dispatch that bore little resemblance to contemporary notions of due process. However, for better or worse, the times have changed, and except for a few working cattle ranches where the cow pony has not been completely replaced by the pickup truck, equestrian activities are largely confined to the entertainment arena.
We are unaware of any constitutional or statutory provision that would place horseback riding within the “public interest” category. Like the court in Buchan, we are also unaware of any case in the sports or recreation field that has voided such a release on public interest or public policy [**440] grounds. ( Buchan v. United States Cycling Federation, Inc., supra, 227 Cal.App.3d at p. 149.) Similar releases have been upheld for activities that are equally, if not more, hazardous than horseback riding, such as bicycle racing (Ibid.), motorcycle dirt bike racing ( Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606 [246 Cal.Rptr. 310]), [***8] white-water rafting ( Saenz v. White-water Voyages, Inc. (1990) 226 Cal.App.3d 758 [276 Cal.Rptr. 672]), scuba diving ( Madison v. Superior Court (1988) 203 Cal.App.3d 589 [250 Cal.Rptr. 299]) and skydiving. ( Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 [214 Cal.Rptr. 194].)
As to appellants’ argument that the release is ineffective because Guido did not think being thrown off a horse was an inherent risk of horseback riding, we are of the contrary view–that it is one of the most obvious risks of that activity, and readily apparent to anyone about to climb on a horse. The cases of injuries from horseback riding are numerous, and we have found none which describe this risk as unexpected or extraordinary. (See, e.g., Palmquist v. Mercer (1954) 43 Cal.2d 92 [272 P.2d 26]; Dorobek v. Ride-A-While Stables (1968) 262 Cal.App.2d 554 [68 Cal.Rptr. 774]; Griffin v. Sardella (1967) 253 Cal.App.2d 937 [61 Cal.Rptr. 834]; [***9] O’Brien v. Gateway Stables (1951) 104 Cal.App.2d 317 [231 P.2d 524].) In fact, Guido admitted she was “bucked” from a different horse a few months before this accident.
[*843] (3a) For their second contention–that respondent advised Guido the release was “meaningless”–appellants rely on Guido’s deposition testimony, submitted by respondent in support of his summary judgment motion. In her deposition Guido testified she “just didn’t feel comfortable signing something that said ‘Release’ on it on the top.” However, she signed it without reading it because respondent advised her, “… It doesn’t mean anything. It is something that I need to have you sign, because my insurance company won’t let me give lessons unless I have people sign this. [P] … As a matter of fact, the insurance company wants me to give the students this long detailed form, which I don’t do, because it scares them away when they see this long, detailed form.”
(4) [HN5] “It is well established that a party to an agreement induced by fraudulent misrepresentations or nondisclosures is entitled to rescind, notwithstanding the existence of purported exculpatory provisions contained [***10] in the agreement. [Citation.]” ( Danzig v. Jack Grynberg & Associates (1984) 161 Cal.App.3d 1128, 1138 [208 Cal.Rptr. 336]; Civ. Code, § 1689, subd. (b)(1).) The representations need not be made with knowledge of actual falsity but also include the “false assertion of [a] fact by one who has no reasonable grounds for believing his own statements to be true, and when made with [the] intent to induce the other to alter his position, to his injury. [Citation.]” ( In re Cheryl E. (1984) 161 Cal.App.3d 587, 599 [207 Cal.Rptr. 728]; Civ. Code, § 1572, subd. 2.)
[HN6] The existence of actual fraud is always a question of fact. ( Civ. Code, § 1574; Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1475 [266 Cal.Rptr. 593].) (5) [HN7] Justifiable reliance is an essential element of a claim for fraudulent misrepresentation, and the reasonableness of the reliance is ordinarily a question of fact. ( Seeger v. Odell (1941) 18 Cal.2d 409, 414-415 [115 P.2d 977, 136 A.L.R. 1291]; Danzig v. Jack Grynberg & Associates, supra, 161 Cal.App.3d at p. 1138.) [***11] However, whether a party’s reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 289, p. 301.)
(3b) Guido’s deposition testimony on which appellants rely also reveals that she is a practicing attorney and uses releases in her practice. In essence, she is asking this court to rule that a practicing attorney can rely on the advice of an equestrian instructor as to the validity of a written release of liability that she executed without reading. [HN8] In determining whether one can reasonably or justifiably rely on an alleged misrepresentation, the knowledge, education and experience of the person [**441] claiming reliance must be considered. ( Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503 [*844] [198 Cal.Rptr. 551, 674 P.2d 253, 44 A.L.R.4th 763]; Seeger v. Odell, supra, 18 Cal.2d at p. 415.) Under these circumstances, we conclude as a matter of law that any such reliance was not reasonable.
The summary judgment is affirmed.
[***12] King, J., and Poche, J., * concurred. Appellants’ petition for review by the Supreme Court was denied February 26, 1992.
* Associate Justice of the Court of Appeal, First District, Division Four, sitting under assignment by the Chairperson of the Judicial Council.
No Child Left Inside Legislation Reintroduced in Congress
Posted: February 27, 2015 Filed under: Uncategorized | Tags: Environmental Education, legislation, No Child Left Inside Leave a commentThanks to you and our colleague organizations, the No Child Left Inside act (NCLI) got a great start this year. We feel that with another round or two of followups to engage addition legislators who needed more time and encouragement to sign-on, our Congressional champions will be able to position the provisions of NCLI to be considered for inclusion into the larger Elementary and Secondary Education Act (ESEA).
Bill numbers: H.R. 882 & S. 492, introduced on 2/11/15 & 2/12/15. More about them at www.congress.gov/bill/114th-congress/house-bill/882 and www.congress.gov/bill/114th-congress/senate-bill/492. You can sign up there to get an alert about any official actions. Note that as of today, the bill names on Congress.gov are the formal, “A bill to amend the Elementary and Secondary Education Act of 1965 in order to improve environmental education…” We have been informed that it will be administratively changed to “No Child Left Inside Act of 2015” shortly.
Cosponsors: Thanks to you and the coalition of our friends, including the NCLI Coalition, National Wildlife Federation, and others, 42 House members are original cosponsors, plus sponsor Rep. Sarbanes (MD-3), compared to 43+1 for all of the last Congress…great work! On the Senate side, we were level with the last Congress for initial cosponsors, with five plus Sen. Reed (RI). In both chambers there are many additional legislators who have supported us in the past, including every one who cosponsored last time in the Senate; see below. Support spread sheet attached. (One more House cosponsor was added this morning, bringing us even with the House total from the last Congress!)
What’s next? Thank you notes + requests for our initial cosponsors to help us with recruiting some of the additional cosponsors we need. Please send your thanks via email to all legislators and staff you connected with who cosponsored, or even if you hadn’t contacted them… if they stepped up, then send a thank you. We also need public thank yous – have your state environmental education (EE) association mention our champions in their newsletter, blog, twitter feed, etc. Request that other organizations with whom you are friends, do the same: local league of conservation voters, Audubon Societies, the zoo and aquarium, etc. Sample social media language attached.
We still need more NCLI cosponsors in these categories:
– Senators – We are thin with their support so far. There are 16 who have cosponsored in the past but not yet this year… mostly because they weren’t asked again!
– Other past EE supporters, Senate and House, of NCLI – we have plenty of friends of environmental education who just need a little reminding of the importance of EE to their state and country, and of their past support. There are an additional 10 House members who cosponsored last term and haven’t yet done so this one, and 30 more who cosponsored in other previous Congress and not yet this time, and plenty more who have signed appropriations support letters.
– Freshmen – We need new champions; we only have two so far. Some of these new legislators don’t know what EE looks like in their district or state, or they may know and love your school/organization, but don’t think about the connection between your good work, EE, and NCLI. For freshmen profiles see http://info.cqrollcall.com/NewMemberGuide2014.html (you must provide your email address to download this).
– Education committee members – In the House we have 9 of 16 already cosponsoring on the Democratic side, and 4 of the those remaining 7 have supported EE in Congress in the past. On the Senate HELP Committee, we have only 3 cosponsoring ed committee members so far, but again, almost all of the rest of the Democrats on the committee are friends of EE.
– At least one cosponsor from every state – We are almost 1/2 way there with 23 states and D.C. represented… let’s try for this!
– Republicans – We simply need more connections with them.
With all of the above groups, we know in some cases there might be a low probability of an individual legislator willing to be on the record cosponsoring NCLI, so the goal becomes having them make that positive link between your good work and support of EE, so that the Senator or Representative will at least say that they won’t vote against us!
In the coming few weeks: Congressional EE appropriations support to request. For most of us, it makes sense to combine our appeals to our legislators with several appropriation items for Congress. More on this shortly.
Thanks again for a great start!
Brock
Brock Adler
Chair, Advocacy Committee, NAAEE
(917) 608-8120
brockadler
Congressional Environmental Education Supporters 2007-2015 By State.xlsx
NAAEE Advocacy Committee Communications – sample social media messages.docx
Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883
Posted: February 26, 2015 Filed under: Idaho, Legal Case, Minors, Youth, Children, Youth Camps | Tags: assault, Big Sky Summer Adventure Program, Camp, Custody and Control, Explorations, Float Trip, Idaho, LLC., Montana, Phoenix Mountain Collaborative, Run away, Runaway, Summer Camp, Treatment Program, Trout Creek, Youth Camp 3 CommentsTo Read an Analysis of this decision see
Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883
Vera Gadman, Plaintiff, v. Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC., Defendants.
Case No. 2:13-CV-00327-EJL
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
2014 U.S. Dist. LEXIS 83883
June 17, 2014, Decided
June 17, 2014, Filed
CORE TERMS: foreseeable, violent, summary judgment, staff, violence, genuine, youth, ran, violent acts, deposition, non-moving, custody, owed, van, issue of material fact, adverse party, citation omitted, propensity, foreseen, commit, runaway, duty of care, undisputed, instructor, detention, outdoor, missing, assault, shoes, violent behavior
COUNSEL: [*1] For Vera Gadman, Plaintiff: James M Bendell, Grupp Law Office, Coeur D’Alene, ID.
For Marshall Dittrich, Defendant: Michael L Haman, LEAD ATTORNEY, Haman Law Office, Coeur d’Alene, ID.
For Penelope James, Phoenix Mountain Collaborative, LLC, Defendants: Mark A Ellingsen, LEAD ATTORNEY, WITHERSPOON KELLEY, Coeur d’Alene, ID.
JUDGES: Honorable Edward J. Lodge, U. S. District Judge.
OPINION BY: Edward J. Lodge
OPINION
MEMORANDUM DECISION AND ORDER
INTRODUCTION
Pending before the Court in the above-entitled matter are Defendants’, Phoenix Mountain Collaborative, LLC and Penelope James, Motion for Summary Judgment and related Motions. The parties have filed their responsive briefing and the matters are ripe for the Court’s consideration.1 Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
1 Mr. Dittrich filed a response to Plaintiff’s opposition to the Motion for Summary Judgment wherein [*2] he takes no position on the Motion but responds only to clarify the record. (Dkt. 17.)
FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2011, Defendants Joseph Martin and Marshall Dittrich were participants in a 52-day outdoor program known as the Big Sky Summer Adventure Program operated by Explorations in Trout Creek, Montana. Explorations is an entity that offers both full time residential programs and summer outdoor adventure programs for youths who may have struggled in the past either academically, socially, with interpersonal relationships, or with substance use/experimentation issues. Explorations also offers counseling sessions and life skills training. Explorations is owned and operated by Defendant Phoenix Mountain Collaborative, LLC.2 The Defendant Penelope James is the managing member of Explorations who reviews the applications for enrollment at Explorations’ camps.
2 The Court will refer to Phoenix Mountain Collaborative, LLC as “Explorations” in this Order. The Court also refers to both Ms. James and Explorations collectively as “Explorations” in this Order.
On July 29, 2011, the Explorations outdoor program was finishing a float trip down the Clark Fork River which runs [*3] from Montana to Idaho. That evening, around 10:00 p.m., the students and staff camped out on the Explorations’ property. The next morning around 8:00 a.m., an Explorations’ staff member noticed Mr. Martin and Mr. Dittrich were missing. A search was conducted but the boys were not found on the property. At 9:30 a.m. Ms. James notified local law enforcement and the boys’ parents that they had run away and were missing.
The location of the two boys was not known until July 31, 2011. On that day the Plaintiff, Vera Gadman, was driving her vehicle in Clark Fork, Idaho when she saw Mr. Martin and Mr. Dittrich, hitchhiking along Highway 200. Ms. Gadman stopped her car and offered them a ride. The boys asked Ms. Gadman to take them somewhere they could camp. After driving to a couple of locations, Ms. Gadman stopped at the east end of David Thompson Road and showed the boys where they could camp on a map. At that stop, Mr. Martin and Mr. Dittrich then brutally assaulted and battered Ms. Gadman including allegedly choking, strangling, and striking her in the head with a glass bottle, throwing and striking her with rocks, and committing other acts of violence and terror against her. (Dkt. 1 at [*4] ¶ 13.) As a result, Ms. Gadman claims she suffered serious physical and emotional injuries and incurred significant damages. Ms. Gadman has filed this action raising a negligence claim against the Defendants seeking to recover for the damages she suffered from the attack. Defendants Exploration and Ms. James have filed this Motion for Summary Judgment which the Court takes up in this Order.
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party’s case and upon which the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). [*5] If the non-moving party fails to make such a showing on any essential element, “there can be no ‘genuine issue of material fact,’ since a completely failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.3
3 See also, Rule 56(e) which provides, in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both “material” and “genuine.” An issue is “material” if it affects the outcome of the litigation. An issue, before it may be considered “genuine,” must be established by “sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties’ differing [*6] versions of the truth at trial.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9th Cir. 1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party
(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party’s claim implausible.
Id. at 374 (citation omitted).
Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
ANALYSIS
1. Motion for Extension of Time to File Statement of Genuine issues of Fact
Plaintiff’s Motion asks [*7] for leave of the Court to file a late Statement of Genuine Issues of Fact in response to the Motion for Summary Judgment. (Dkt. 23.) Plaintiff mistakenly failed to file the Statement of Fact as required by the rules. Defendants oppose the Motion arguing the proposed Statement of Facts fails to satisfy the requirements of Federal Rule of Civil Procedure 56(c) and Local Civil Rule 7.1. (Dkt. 24.) The Court has reviewed the briefing and materials on this issue and will grant the Plaintiff’s Motion and allow her to file the late Statement of Facts. While the filings is untimely, the Court finds the interests of justice are best served by deciding the Motion for Summary Judgments on its merits and there is little prejudice suffered by Defendants as a result of the late filing.
2. Defendants’ Motion for Summary Judgment
Explorations and Ms. James seek dismissal of the negligence claim against them arguing 1) they owed no duty to Ms. Gadman and 2) the actions of Mr. Dittrich and Mr. Martin were not foreseeable to either Explorations or Ms. James. (Dkt. 16.) Ms. Gadman opposes the Motion and asserts that a genuine issue of material fact exists as to whether Explorations and/or Ms. James owed [*8] a duty to her. (Dkt. 19.)
On the question of whether Ms. James and/or Explorations owed a duty of care to Ms. Gadman under Idaho law, both parties cite to and discuss Caldwell v. Idaho Youth Ranch, Inc., 132 Idaho 120, 968 P.2d 215 (Idaho 1998) but arrive at opposite conclusions. In Caldwell, the Idaho Supreme Court held that the Idaho Youth Ranch did not owe a duty of care to a third-party for the violent acts committed upon the third-party by a minor who had, several months prior, been released from an Idaho Youth Ranch program. There the court concluded that the minor was not in the custody or control of the Youth Ranch at the time he committed the violent acts upon the third-party.
In reaching this conclusion, the Idaho Supreme Court discussed the “duty owed by those in charge of persons who are dangerous or who have dangerous propensities,” quoting the duty is as described in the Restatement (Second) of Torts, § 319, which provides:
§ 319. Duty of Those in Charge of Person Having Dangerous Propensities. One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third [*9] person to prevent him from doing such harm.
Caldwell, 968 P.2d at 218 (quoting Restatement (Second) of Torts, § 319 (1977)). The court then identified the two components of the duty:
The first part requires a determination of whether the supervising body actually has control over the individual in question, and then secondly, if so, a determination must be made whether the harm caused by the individual was foreseeable.
Id. at 218-19. The parties in this case dispute both components — whether Ms. James/Explorations had control over the boys and whether the harm caused by the boys was foreseeable.
A. Control
“No liability exists under the law of torts unless the person from whom relief is sought owed a duty to the allegedly injured party.” Jones v. Starnes, 150 Idaho 257, 245 P.3d 1009, 1012 (Idaho 2011) (quoting Vickers v. Hanover Constr. Co., Inc., 125 Idaho 832, 875 P.2d 929, 932 (Idaho 1994)). “Ordinarily, ‘there is no affirmative duty to act to assist or protect another absent unusual circumstances, which justifies imposing such an affirmative responsibility. An affirmative duty to aid or protect arises only when a special relationship exists between the parties.'” Rees v. State, Dept. of Health and Welfare, 143 Idaho 10, 137 P.3d 397, 402 (Idaho 2006) [*10] (quoting Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 987 P.2d 300, 311 (1999)) (citations omitted). “Determining when a special relationship exists sufficient to impose an affirmative duty requires an evaluation of ‘the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.'” Id. (quoting Coghlan, 987 P.2d at 311 (quoting W. Prosser, Law of Torts 333 (3d ed. 1964))).
The general duty which arises in many relations to take reasonable precautions for the safety of others may include the obligation to exercise control over the conduct of third persons…. [Some] relationships are custodial by nature, requiring the defendant to control his charge and to guard other persons against his dangerous propensities…. The same rule has been applied to hospitals and psychotherapists who have charge of dangerous mental patients, and to those who have charge of dangerous criminals. … Yet, in the absence of the requisite relationship, there generally is no duty to protect others against harm from third persons.
Caldwell, 968 P.2d at 218 (quoting Sterling, 723 P.2d at 768-69) (citation omitted). “[T]he key to this duty is the supervising [*11] individual’s relationship to the supervised individual, rather than a direct relationship with the endangered person or class of persons.” Caldwell, 968 P.2d at 218 (discussing Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755, 769 (Idaho 1986) superseded in part on other grounds by Idaho Code § 6-904A)). Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.
The parties in this case disagree on the level of “control” Explorations had over the youths. Explorations argues that it provides “recreational programs and counseling for children” but maintains it is “not a state run juvenile detention center or institution.” (Dkt. 16 at 1, 9.) Participation in Exploration is voluntarily and there is no physical detention or connection to the criminal justice system. (Dkt. 16 at 2, 9.) Explorations’ briefing argues that the attendees may leave the Exploration program at any time. (Dkt. 16 at 9.)
Ms. Gadman counters that Explorations and Ms. James exercised supervisory control over the students such that a special relationship was formed which gives rise to a duty. (Dkt. 19.) Ms. Gadman [*12] points out that Ms. James testified in her deposition that students are not free to leave Explorations once they are enrolled, there had been kids in the past who had ran away from camp but were caught, and described the procedures Explorations had in place for preventing kids from escaping.
The Court finds facts in this case are distinct from those in Caldwell where it was undisputed that the violent offender had been released from the Idaho Youth Ranch several months before committing the murder. There the Idaho Supreme Court found the Idaho Youth Ranch did not have control over the offender such that a duty of care was owed. In contrast here, Explorations did have control over Mr. Martin or Mr. Dittrich and had not released them from its custody — they ran away.
Although it is not akin to a juvenile detention facility, Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ [*13] permission, otherwise they were not free to leave.4 (Dkt. 19-10 at 12.) Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.” (Dkt. 19-10 at 13.)
4 Both Mr. Martin and Mr. Dittrich were seventeen at the time they were at Explorations.
Participants have ran away from Explorations in the past. Explorations has run away prevention measures called “Run Watch” which are written set of procedures and guidelines designed for responding to a runaway or missing student. (Dkt. 19-10 at 28-29) (Dkt. 19-6, Ex. F.) The Run Watch Policy states: “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.” (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) Under the Run Watch guidelines, one instructor in each group has a “run kit” which is intended to provide the instructor in pursuit of the student with whatever equipment that would be necessary to ensure the safety of the instructor. (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) A student is placed on Run Watch when: the student just [*14] had a run attempt; the student verbalized a threat to do so; the instructional team perceives a student to be a run threat; or escorts, operations directors, or a therapist suggests it. (Dkt. 19-6, Ex. F.) Explorations also has written procedures for handling the situations involving an “Accompanied Runaway” and an “Unaccompanied Runaway/Missing Student.” (DKt. 19-6, Ex. F.)
In this case, Explorations was aware the boys had planned to leave and actually took measures to thwart their plan by taking their shoes and journals. When their shoes were later returned, the boys executed their plan to run away from Explorations. The attack upon Ms. Gadman occurred two days after the boys left Explorations. While Explorations may not be akin to a juvenile detention facility, it is in charge of the custody and care of the children who are participating in its programs. This includes more than merely providing shelter, food, and programing. The relationship between Explorations and Mr. Dittrich and Mr. Martin was custodial. The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack. The Court next considers [*15] the second duty requirement: whether the harm caused by the individual was foreseeable.
B. Foreseeable Actions
“The question whether a risk of harm is foreseeable is generally a question for the trier of fact. Summary judgment is appropriate, however, if evidence is presented establishing the absence of any genuine issue of material fact concerning the general risk of harm.” Caldwell, 968 P.2d at 220 (citation omitted). Under the Idaho Tort Claims Act, “Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.'” Caldwell, 968 P.2d at 220 (quoting Harris v. State Dep’t of Health and Welfare, 123 Idaho 295, 847 P.2d 1156, 1160 (Idaho 1992)). In Caldwell, the Idaho Supreme Court recognized that “human behavior is difficult to predict with certainty, leading to the necessity for claimants to demonstrate that the harmful behavior should have been highly predictable based upon demonstrated past conduct.” 968 P.2d at 220 (citing cases).
Ms. Gadman argues [*16] Mr. Martin’s and Mr. Dittrich’s violent acts were foreseeable because both had a prior history of drug abuse and had previously attended treatment programs. (Dkt. 19.) Mr. Dittrich had also previously ran away from home and his school records include a history of “explosive and unpredictable behavior.” While at Explorations, Ms. Gadman points out that Mr. Martin had stole medications from an unlocked Explorations travel van which he ingested and then went an entire week without sleeping causing him to behave erratically and hallucinate. These factors known to Explorations, she argues, made their attack on her foreseeable.
i. Mr. Martin’s and Mr. Dittrich’s Prior Histories
Prior to attending Explorations, Mr. Martin had serious substance abuse issues that his parents knew of and he had been enrolled in different treatment programs. (Dkt. 19-8 at 7-16, 32-33.) Explorations and Ms. James were aware of Mr. Martin’s prior drug problems. In his deposition, Mr. Martin testified that after arriving at Explorations he talked with Ms. James about the problems that had brought him to the program including his prior drug use. (Dkt. 16-4 at 33-34.) Mr. Dittrich also had behavior issues having been [*17] previously kicked out of school, ran away from home, and had also previously attended treatment programs. (Dkt. 19-9 at 7-9.)
Prior to the assault on Ms. Gadman, however, neither Mr. Martin nor Mr. Dittrich had any criminal history. (Dkt. 16-4 at 39, 54) (Dkt. 18 at 56.) Mr. Martin testified in his deposition that he was “unaware” he had any type of propensity for violent behavior prior to the attack and stated he had never been violent before the incident with Ms. Gadman. (Dkt. 16-4 at 39-40.) Mr. Dittrich testified that neither he nor his parents ever told Explorations about any propensity for violence. (Dkt. 18 at 57.)
Although the boys had struggled in various aspects of their lives before attending Explorations, there is nothing in their histories that was known to Explorations that made their actions on July 31, 2011 foreseeable. (Dkt. 16-2, Aff. James.)
ii. Conduct at the Explorations Program
a. No Violent or Threatening Behavior
There is no evidence that either Mr. Martin or Mr. Dittrich engaged in any threatening or violent actions while at Explorations. In his deposition, Mr. Martin denied having committed any violent acts or threatening anyone while at the Explorations camp. [*18] (Dkt. 16-4 at 40-41.) Mr. Martin also testified he never observed Mr. Dittrich commit any violent acts or threaten anyone while he was at Explorations. (Dkt. 16-4 at 41.) In her affidavit, Ms. James states that she had not witnessed and there had been no reports that either boy had demonstrated any acts of aggression or violence to anyone at Explorations. (Dkt. 16-2 at ¶¶ 12-14.)
b. Mr. Martin’s Theft of Drugs
When he arrived at Explorations, Mr. Martin had been off drugs for less than two months. (Dkt. 16-4 at 46-47.) Mr. Martin stated he began using drugs again within a few days of being at Explorations by taking drugs located in the Explorations van. (Dkt. 16-4 at 18-19, 47-48, 62-63.) The Explorations’ staff learned that someone had taken drugs from the van and they confronted the group about it. (Dkt. 19-8 at 49-52.) At that time, Mr. Martin denied taking the drugs but testified that a couple of days before he ran away from camp he vaguely told one of the staff members that he had taken the drugs from the van and was “freaking out,” or “bugging out a little” and “hearing things.” (Dkt. 19-8 at 50-52, 64, 70.) Ms. James also testified that Mr. Martin had admitted to stealing pills [*19] from the Explorations van approximately ten days before he walked away from the program. (Dkt. 19-10 at 55-56.) Ms. James testified that after Mr. Martin admitted to taking the pills, she assumed that someone had ingested the pills. (Dkt. 19-10 at 106.) Mr. Martin testified that he had taken the drugs before Explorations knew of the boys’ plan to runaway. (Dkt. 19-10 at 97.)
The theft and taking of the medications from the Explorations’ van does not make the violence committed upon Ms. Gadman foreseeable. Clearly Mr. Martin’s behavior was out of line, but there were no indications that he would soon become aggressively violent such that the actions he took on July 31, 2011 were foreseeable to Explorations.5
5 In support of her response brief, Ms. Gadman has filed articles discussing the side effects of the drug Adderall, lack of sleep, and the connection between drugs and violence. (Dkt. 19, Ex. A, B, C.) Defendants have objected to the Court’s consideration of these exhibits arguing they are inadmissible. The Court agrees that the articles are not appropriate for consideration pursuant to Federal Rule of Civil Procedure 56(c).
As to the fact that Mr. Martin was hallucinating from the [*20] drugs, again the Court finds the undisputed facts do not give rise to anything that would have made Mr. Martins’ later violent actions foreseeable. Mr. Martin testified that after he had lied to the Explorations’ staff and repeatedly denied being the one who took the drugs, a day or two before they ran away he “mentioned” to staff that he was “freaking out” and “bugging out.” (Dkt. 19-8 at 51-53.) In describing what he told the Explorations’ staff, Mr. Martin testified that he “wouldn’t even call it a conversation. I mentioned I was freaking out a little” and that he “didn’t tell them I needed anything. I didn’t ask for help.” (Dkt. 19-8 at 52-53.) There is simply no basis from these facts from which Explorations could have predicted Mr. Martin would soon commit the violent assault upon Ms. Gadman. The fact that he stole drugs, ingested them, and was experiencing the side effects of the drugs does not make it highly predictable or likely that he would become violent; particularly since there was no known history of any violent behavior either prior to Mr. Martin attending Explorations program or while he was at the program.
c. The Plan to Run Away
Explorations’ field staff had learned [*21] of Mr. Dittrich’s and Mr. Martin’s plan to runaway on either July 19th or 20th. (Dkt. 19-10 at 40, 96.) Once they learned of the boys’ plan to leave, the Explorations’ staff confronted the boys about their plan and then instituted a lockdown. (Dkt. 19-8 at 22, 70-71) (Dkt. 19-9 at 19.) During the lockdown the two were separated in the campsite, the staff took away their shoes and journals, and did not allow them to talk to anyone else. (Dkt. 19-9 at 19.) Mr. Dittrich testified that they were later given back their shoes to use on the white-water rafting trip. (Dkt. 19-9 at 30-31.)
That they had planned to run away from Explorations and find drugs does not make their subsequent violent attack upon Ms. Gadman foreseeable. If anything, the plan and the drug use without any violence was consistent with the boys’ known histories. Ms. Gadman asserts that the violence was foreseeable because the boys would necessarily have to steal in order to obtain the drugs and other life necessities. The Court finds that argument is too speculative. In fact just the opposite proved to be true in light of the fact that the boys were given rides and marijuana from others when they were on the run all without [*22] them having to commit any violent acts. (Dkt. 19-9 at 37.)
Ms. Gadman also argues Mr. Dittrich’s second journal contained a list of items and supplies they would need when they left the program making the resulting assault foreseeable. (Dkt. 19 at 15.) (Dkt. 19-9 at 20-30, 78.) Mr. Dittrich testified that the staff at Explorations was not aware of his list. (Dkt. 18 at 78.) He further stated that the references to a knife, gun, and weapon in general were not intended to be used as a weapon against another person but for protection. (Dkt. 18 at 79-81.) Ms. Gadman asserts the staff should have looked at Mr. Dittrich’s second journal and discovered the “disturbing information.” (Dkt. 19 at 15.) This argument is also too speculative. The journal entries were started two to four days before the boys ran away and then later completed after the boys had left Explorations. (Dkt. 19-9 at 29.) While it may seem obvious in hindsight to argue that Explorations should have looked at Mr. Dittrich’s second journal, the fact remains that Explorations was not aware of the journal entries and there are no facts going to show that they should have foreseen any future violent acts by these boys.
C. [*23] Conclusion
The Court finds there is no genuine issue of material fact that supports a finding that Explorations and/or Ms. James could have foreseen the violent attack committed upon Ms. Gadman. Even considering the cumulative facts known by Explorations — i.e. the boys’ prior history, Mr. Martin’s theft and use of the drugs while at the camp, and their plan to run away — the violent assault on Ms. Gadman was not foreseeable. It is simply too attenuated to expect Explorations to have foreseen the attack based on what they knew about the boys prior to their running away.
Neither boy had any history of violent behavior or any criminal history. In reviewing both boys’ applications, Ms. James interviewed each of the boys’ parents, therapists, and educational consultants. None of these contacts conveyed any concerns that either boy was violent, likely because neither boy had any prior history of violence. While at Explorations, the boys did not commit any acts of violence or demonstrate any aggression. Although Explorations was aware of Mr. Martin’s history of substance abuse, that fact, even when considered in the context of the totality of the circumstances known by Explorations, does not [*24] make his later violent actions foreseeable. As to the fact that one of Mr. Dittrich’s schools had scored him at the highest end of “explosive and unpredictable behavior,” that notation was made eleven years before he attended the Explorations program. (Dkt. 19-10 at 80.) The Court finds the undisputed facts establish that the boys’ violent attack was not highly predictable or likely and, therefore, was not foreseeable. See Caldwell, 968 P.2d at 220.
It is notable that at the time they left the program the boys themselves had not even decided where they were going let alone contemplated attacking anyone. Mr. Martin testified that when they left Explorations his intention was just to get to a city so he could use drugs again but denied he had any intention of committing violence on anyone. (Dkt. 16-4 at 42.) It was not until after the boys had left Explorations that they discussed stealing a car and assaulting someone to get a car. (Dkt. 16-4 at 43-44.) If they themselves did not know or had not yet decided to commit a violent action, there certainly is no way the staff at Explorations could have foreseen the actions such that anyone could say the violence was “highly likely to occur.” [*25] Caldwell, 968 P.2d at 220 (citation omitted). Because there is no genuine issue of material fact in dispute that show Explorations and/or Ms. James could have foreseen the violent actions of Mr. Martin and Mr. Dittrich, the Court finds they did not owe a duty of care to Ms. Gadman. The Motion for Summary Judgment is granted.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1) Plaintiff’s Motion to Extend Time (Dkt. 23) is GRANTED.
2) Defendants’ Motion for Summary Judgment (Dkt. 16) is GRANTED. The claim against Defendants Phoenix Mountain Collaborative, LLC and Penelope James is HEREBY DISMISSED.
DATED: June 17, 2014
/s/ Edward J. Lodge
Honorable Edward J. Lodge
U. S. District Judge
G-YQ06K3L262
http://www.recreation-law.com
Colorado Alliance of Environmental Education is losing State Funding for its Executive Director
Posted: February 24, 2015 Filed under: Uncategorized | Tags: CAEE, Colorado Alliance for Environmental Education, Colorado State University, CSF, CSU, x, y, z Leave a comment
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Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.
Posted: February 23, 2015 Filed under: Climbing Wall, Connecticut, Release (pre-injury contract not to sue) | Tags: Bouldering, Climbing Wall, Connecticut, Hold, Padding, Release Leave a commentRelease failed the CT Supreme Court test for releases, and the appellate court slammed the climbing wall.
Lecuna v. Carabiners Fairfield, LLC, 2014 Conn. Super. LEXIS 2610
State: Connecticut, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford
Plaintiff: Isadora Machado Lecuna
Defendant: Carabiners Fairfield, LLC
Plaintiff Claims: Negligence
Defendant Defenses: Release
Year: 2014
Holding: for the plaintiff
The plaintiff sued the climbing gym when she fell from a climbing wall injuring her knee and leg. The plaintiff was bouldering when a hold spun causing her to fall. She fell suffering her injuries. She claimed that there was no one there to spot her, and the landing was not padded.
The defendants filed a motion for summary judgment based on the release the plaintiff had signed when she joined the gym. The trial court granted the dismissal based on the motion, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court starts off fairly quickly stating the motion for summary judgment failed for four reasons. The first was the court did not see the spinning hold as an inherent risk of the sport of climbing. The plaintiff also argued that since the area has just been opened that day to the public, the hold should have been checked before opening, which the judge also bought.
The court found “…that there is clearly an unresolved question of fact whether the risk of loose or spinning holds in the new bouldering area were, or could have been, minimized.”
The second issue was the employee who was supposed to spot the plaintiff had walked away. This was proved to the court by the statement by the employee apologizing upon his return: “…staff member apologized to the plaintiff and admitted he should not have left.”
The third issue was the bouldering cave there the accident occurred only had carpet over concrete instead of padding. The standard for this gym was padding, because the gym had padding every place else. If you are going to change or alter the safety equipment in your operation, you need to notice the people in the release and place notices where they can be seen.
The final decision was the release being used by the plaintiff did not meet the requirements for a release in Connecticut. The Supreme Court of Connecticut decision Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) set forth six factors for a release to be valid in Connecticut.
This court did not list the factors that the release under question failed; it just stated this decision missed three of the six.
Fourth, the court does not agree that existing Connecticut Supreme Court authority supports the enforceability of the waiver/release agreement signed by the plaintiff. The Hanks decision set out six factors to consider when determining whether the waiver/release here violated public policy. At least three of these factors could, after a full development of the record, be found to weigh against enforcement of the agreement plaintiff signed.
Based on these four factors the court quickly sent the case back for trial.
So Now What?
This decision was short and sweet and really only looked at the evidence of the plaintiff. Either the defendant release was so terrible the court could not deal with it or the actions of the defendant were such the court was not going to allow the defendant to win.
There was not a single argument supporting any position of the defendant in the decision. That is odd.
When writing a release you list the major risks, the minor risks and the risks that occur all the time. A spinning hold is something that occurs with enough frequency at a climbing gym that it should be listed in your release. That in turn might have wiped out the first argument the court objected to.
Anything you say in the heat of the moment is admitable as evidence under the excited utterance exception to the hearsay evidentiary rule. That means it is easy to get these statements into the record. Make sure your staff is trained in how to respond physically and orally to problems.
No matter what if there is a Supreme Court decision in your state that lists the requirements for a release to be valid you better well make sure your release meets those requirements.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Platzer v. Mammoth Mountain Ski Area, 104 Cal. App. 4th 1253; 128 Cal. Rptr. 2d 885; 2002 Cal. App. LEXIS 5246; 2003 Cal. Daily Op. Service 24; 2003 Daily Journal DAR 5
Posted: February 22, 2015 Filed under: California, Legal Case, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Chair Lift, Gross negligence, Mammoth Mountain Ski Area, Platzer, Public Policy, Release, ski area Leave a commentPlatzer v. Mammoth Mountain Ski Area, 104 Cal. App. 4th 1253; 128 Cal. Rptr. 2d 885; 2002 Cal. App. LEXIS 5246; 2003 Cal. Daily Op. Service 24; 2003 Daily Journal DAR 5
Joseph Platzer, a Minor, etc., et al., Plaintiffs and Appellants, v. Mammoth Mountain Ski Area, Defendant and Respondent.
No. C038663.
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
104 Cal. App. 4th 1253; 128 Cal. Rptr. 2d 885; 2002 Cal. App. LEXIS 5246; 2003 Cal. Daily Op. Service 24; 2003 Daily Journal DAR 5
December 30, 2002, Decided
December 30, 2002, Filed
COUNSEL: Law Offices of Robert E. Schroth and Robert E. Schroth for Plaintiffs and Appellants.
Lauria, Tokunaga & Gates and Mark D. Tokunaga for Defendant and Respondent.
JUDGES: (Opinion by Callahan, J., with Sims, Acting P. J., and Morrison, J., concurring.)
OPINION BY: CALLAHAN
OPINION
CALLAHAN, [*1255] J.
[**886] Eight-year-old Joseph Platzer (Joseph) was injured when he fell from the J-6 chairlift during a ski lesson at June Mountain Ski Area (June Mountain) in December 1998. Dagmar Platzer (Dagmar), Joseph’s mother and guardian at litem, sued Mammoth Mountain Ski Area (Mammoth), June Mountain’s corporate operator, for damages on Joseph’s behalf. The court granted Mammoth’s motion for summary adjudication, and dismissed all causes of action based on negligence. Thereafter, the trial jury returned a verdict in favor of Mammoth on the issue of gross negligence.
In this appeal from the judgment, Joseph contends the court erred in granting Mammoth’s motion for summary adjudication. He challenges the [*1256] implied finding that a release [***2] signed by his mother barred all claims for simple negligence against Mammoth, a common carrier. Joseph also maintains the court erred in admitting the release at trial, and instructing the jury that ordinary negligence was inapplicable to the case. We affirm the judgment.
I. THE RELEASE
On December 30, 1998, Dagmar enrolled Joseph in the June Mountain Sports School. She signed a document entitled “Release of Liability and Medical Authorization” WHICH READ IN RELEVANT PART:
“I have enrolled the afore-named child or children (‘Child’) in the program (‘Program’). I understand the Child’s participation in the Program involves exposure to the inherent risks of skiing and/or snowboarding that cannot be eliminated. I also understand that the Child’s participation in the Program may require the use of ski lifts and that the Child may ride lifts alone, with other guests or with other children and that the use of lifts by the Child involves a potential risk of injury.
“Individually and as the parent or guardian of the Child, I HEREBY EXPRESSLY ASSUME ALL RISKS associated with the Child’s participation in the Program including all risks associated with skiing and/or snowboarding, [***3] riding the lifts and skiing/snowboarding on terrain or using equipment intended to improve or enhance the Child’s skiing/snowboarding skills.
“Despite my understanding of the foregoing risks, I, individually and as the parent or legal guardian of the Child, AGREE NOT TO SUE AND TO RELEASE FROM LIABILITY AND TO DEFEND, INDEMNIFY AND HOLD HARMLESS MAMMOTH/JUNE SKI RESORT and their representatives, owners, employees and agents for any damage or injury arising out of the Child’s participation in the Program regardless of the cause, including NEGLIGENCE. [P] . . . [P]
[**887] “I understand that the foregoing is a LIABILITY RELEASE and a MEDICAL AUTHORIZATION that is legally binding on me, the Child, our heirs and our legal representatives and I sign it of my own free will. I acknowledge that the foregoing is binding during the 1998-1999 ski season.”
II. SUMMARY ADJUDICATION OF CLAIMS BASED ON ORDINARY NEGLIGENCE
Mammoth moved for summary judgment based on the release signed by Dagmar. The parties later stipulated that Mammoth’s motion would be [*1257] deemed a motion for summary adjudication, and Joseph filed an amended complaint alleging gross negligence by Mammoth as a common carrier. [***4] The court granted the motion for summary adjudication.(1a) On appeal, Joseph maintains that Mammoth cannot contract away its liability for ordinary negligence, and the release is void as against public policy.
[HN1] The trial court shall grant defendant’s motion for summary adjudication “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f).) We review the trial court’s ruling de novo (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1727 [22 Cal. Rptr. 2d 781] (Westlye)), and conclude there was no error.
The dispositive question in this appeal is whether the release signed by Dagmar absolved Mammoth of liability for ordinary negligence. Citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal. Rptr. 33, 383 P.2d 441] (Tunkl) and Civil Code section 1668, 1 Joseph argues that regardless of the language of Civil Code section 2175, 2 contracts purporting to exempt common carriers from liability for negligence are void as being against public policy. Mammoth [***5] counters by citing a maxim of statutory construction: “Expressio unius est exclusio alterius: The mention of one thing implies the exclusion of another.” It reasons that the Legislature’s reference to gross negligence–but not ordinary negligence–in Civil Code section 2175 means it intended to exclude ordinary negligence from the purview of the statute. As these arguments suggest, the resolution of this appeal requires our consideration of two lines of cases–those involving Civil Code section 2175 and releases dealing with common carriers, and those involving releases void under Tunkl and Civil Code section 1668 as against public policy.
1 Civil Code section 1668 provides: [HN2] “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
2 Civil Code section 2175 states that [HN3] “[a] common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants.” (Italics added.)
[***6] [HN4] “Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” (Civ. Code, § 2168.) Common carriers for reward “must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.) There is no dispute chairlift operators like Mammoth are common carriers. ( [*1258] [**888] Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1508 [3 Cal. Rptr. 2d 897] (Squaw Valley).(2))
[HN5] “At common law a common carrier might make any other contract relative to the carriage of property intrusted to it, save one exempting it from liability for any kind of negligence. This rule was founded upon considerations of public policy, it being deemed derogatory thereto to allow a common carrier to contract against its own negligence, because to permit this had a tendency to promote negligence. But, as far as ordinary negligence is concerned, the rule at common law has been abrogated by our code (sec. 2174) 3 to the [***7] extent that the shipper and carrier may now contract for the purpose of limiting the liability of the latter therefor. The prohibition of the common law against a carrier limiting his liability for any kind of negligence is declared in this state by section 2175 only to apply to the limitation for gross negligence.” (Donlon Bros. v. Southern Pacific Co. (1907) 151 Cal. 763, 770 [91 P. 603], italics added; see also Walther v. Southern Pacific Co. (1911) 159 Cal. 769, 772-773 [116 P. 51].) (1b)) Mammoth is correct that nothing in Civil Code sections 2174 and 2175 prevented it from negotiating a release from liability for ordinary negligence.
3 Civil Code section 2174 reads: “The obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract.”
The next question is whether public policy bars enforcement of such a release.(3) In Tunkl, a case arising under [***8] the more general contract provisions of Civil Code section 1668, the Supreme Court considered the validity of a release from liability for future negligence imposed as a condition for admission to the University of California Los Angeles Medical Center, a charitable research hospital. (Tunkl, supra, 60 Cal. 2d at p. 94.) It concluded that “an agreement between a hospital and an entering patient affects the public interest and that, in consequence, the exculpatory provision included within it must be invalid under Civil Code section 1668.” (Ibid.) Of interest here is the Supreme Court’s description of the types of transactions that involve the public interest. An “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 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 [***9] 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. [*1259] 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 is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Id. at pp. 98-101, fns. omitted.(1c))
California courts have consistently declined to apply Tunkl and invalidate exculpatory agreements in the recreational sports context. ( [**889] Westlye, supra, 17 Cal. App.4th at pp. 1734, 1735 [22 Cal. Rptr. 2d 781] [adjustment of ski bindings]; see also Hulsey v. Elsinore Parachute Center (1985) 168 Cal. App. 3d 333, 343 [214 Cal. Rptr. 194] [parachute jumping] (Hulsey).) The Hulsey [***10] court distinguished parachute jumping from activities that Tunkl and its progeny have found to affect the public interest. “First, parachute jumping is not subject to the same level of public regulation as is the delivery of medical and hospital services. Second, the Tunkl agreement was executed in connection with services of great importance to the public and of practical necessity to anyone suffering from a physical infirmity or illness. Parachute jumping, on the other hand, is not an activity of great importance to the public and is a matter of necessity to no one. [P] Finally, because of the essential nature of medical treatment, the consuming party in Tunkl had little or no choice but to accept the terms offered by the hospital. . . . Purely recreational activities such as sport parachuting can hardly be considered ‘essential.’ ” (Hulsey, supra, at pp. 342-343.)
The court in Okura v. United States Cycling Federation (1986) 186 Cal. App. 3d 1462 [231 Cal. Rptr. 429] (Okura) distinguished bicycle racing in a similar manner. “Measured against the public interest in hospitals and hospitalization, escrow transactions, banking transactions and [***11] common carriers, this transaction is not one of great public importance. There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation. The number of participants is relatively minute compared to the public use of hospitals, banks, escrow companies and common carriers. Also, the risks involved in running such an event certainly do not have the potential substantial impact on the public as the risks involved in banking, hospitals, escrow companies and common carriers. The service certainly cannot be termed one that ‘is often a matter of practical necessity for some members of the public.’ (Tunkl . . ., supra, 60 Cal. 2d at p. 99.)” (Okura, supra, at p. 1467.)
Defendant Mammoth is a common carrier in the recreational sports setting. One fact favors enforcing the release, the other does not. We conclude the release is effective for two reasons.
[*1260] First, [HN6] Civil Code sections 2174 and 2175 govern release agreements affecting the liability of common carriers. Civil Code section 1668 speaks more generally to contracts [***12] that “exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, . . .” (Italics added.) [HN7] A specific statute on a subject controls over a general provision. (Code Civ. Proc., § 1859; Div. of Labor Law Enforcement v. Moroney (1946) 28 Cal.2d 344, 346 [170 P.2d 3]; Kennedy v. City of Ukiah (1977) 69 Cal. App. 3d 545, 552 [138 Cal. Rptr. 207].) Accordingly, Civil Code sections 2174 and 2175 govern the release at issue here.
Second, although Mammoth’s chairlift operations fit the statutory definition of common carrier (Civ. Code, § 2168; Squaw Valley, supra, 2 Cal. App. 4th at pp. 1507-1508), it differs from the typical common carriers–airlines, railroads, freight lines–in significant ways. “Skiing, like other athletic or recreational pursuits, however beneficial, is not an essential activity.” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 621-622 [55 Cal. Rptr. 2d 818].) [HN8] Public Utilities Code section 212, subdivision [***13] (c) expressly excludes chairlift operators from regulation by the Public Utilities Commission. (Squaw Valley, [**890] supra, 2 Cal. App. 4th at pp. 1511-1512.) We already explained that courts routinely exclude recreational sports from the purview of Tunkl, concluding that such activities are not of great public importance or practical necessity. (See Westlye, supra, 17 Cal.App.4th at pp. 1734, 1735; Okura, supra, 186 Cal. App. 3d at p. 1467; Hulsey, supra, 168 Cal. App. 3d at pp. 342-343.)
III. ADMISSION OF THE RELEASE AT TRIAL
Joseph argues the court erred in admitting the release into evidence over his objection, but fails to cite the grounds for his objection at trial, or explain how he was prejudiced by admission of that evidence. On appeal he states in general terms that the release was irrelevant and highly prejudicial once the court ruled that the release exonerated Mammoth from ordinary negligence. He declares in conclusionary fashion that “[t]he only value the release had at trial was to the defendant, who used it to the prejudice of the Plaintiff.”
(4) [HN9] “Where inadmissible evidence is offered, the party who desires to raise the point [***14] of erroneous admission on appeal must object at the trial, specifically stating the grounds of the objection, and directing the objection to the particular evidence that the party seeks to exclude. . . . [F]ailure to object at all waives the defect.” ( [*1261] 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation At Trial, § 371, pp. 459-460.) The reporter’s transcript indicates that Joseph’s counsel objected to admission of the release, and the court overruled the objection. However, neither the reporter’s transcript nor the clerk’s transcript reveals the grounds for his objection, or confirms he objected on grounds of relevancy. Joseph “must affirmatively show error by an adequate record.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, p. 562.(1d))
However, even if we were to assume Joseph preserved his evidentiary objection for consideration on appeal, we conclude the release was relevant to the issue of gross negligence. Among other things, it described the inherent risks of skiing and using the ski lifts. The court did not abuse its discretion in admitting the release into evidence.
IV. JURY INSTRUCTIONS ON GROSS NEGLIGENCE
Joseph also contends the court erred in instructing [***15] the jury “that ordinary negligence was inapplicable in this case and that plaintiff would have to prove Defendant was guilty of gross negligence.” In light of our conclusion the trial court did not err in granting Mammoth’s motion for summary adjudication and dismissing all causes of action based on ordinary negligence, we reject Joseph’s claim of instructional error.
DISPOSITION
The judgment is affirmed.
Sims, Acting P. J., and Morrison, J., concurred.
Appellants’ petition for review by the Supreme Court was denied April 9, 2003.
SRAM Recalls Zipp 88 Bicycle Wheel Hubs Due to Crash and Injury Hazards
Posted: February 21, 2015 Filed under: Cycling | Tags: Consumer Product Safety Council, CPSC, Hub, Recall, SRAM, Wheel, Wheel Set, Zipp, Zipp 88 Leave a commentName of Product: Zipp 88 aluminum hubs for bicycle wheels
Hazard: The hub flange ring on the front hub can fail posing a crash and injury hazard.
Remedy: Replace
Consumer Contact: SRAM at (800) 346-2928 between 9 a.m. and 8 p.m. ET Monday through Thursday and 9 a.m. to 6 p.m. ET on Friday, or visit http://www.sram.com or http://www.zipp.com and click on Recall Notice for more information.
Units: About 12,000
Description: The aluminum hub shell is silver. The outside flange ring is gray aluminum in the standard option and blue, gold, gray, pink or red in the ZedTech options. The diameter of the two clinch nuts is approximately 1 inch. The first version of the 88 hub is the only one affected by the recall. The first version has the Z logo on the flange ring. The other versions – not affected by this recall – do not have the Z logo on the flange ring. The hubs were sold in five bike brands and sold separately. A listing of these brands and their model types can be viewed here: http://www.cpsc.gov/en/Recalls/2015/SRAM-Recalls-Zipp-88-Bicycle-Wheel-Hubs/
Incidents/Injuries: The company reports two incidents of collapsed front wheels. Both resulted in stitches, bruises and lacerations, plus a concussion in one case.
Remedy: Consumers should immediately stop using bicycles equipped with the recalled Zipp 88 front hub and contact SRAM for a free replacement hub.
Sold at: Specialty bicycle retailers nationwide. Front hub sold for about $215; front wheel with the hub sold for about $920; front and rear wheel set sold for about $2300 and bicycles with the wheel set containing the recalled hub sold for about $5,000 to $12,000. Items were sold between October 2008 and December 2010.
Manufacturer: Prodigy Group, Mooresville, Ind.
Manufactured in: USA
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
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Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, Recall, CPSC, Consumer Product Safety Council, SRAM, Zipp, Zipp 88, Wheel, Hub, Wheel Set,
Dolores River Boating Advocates needs another Board Member: Join and maybe save a river
Posted: February 20, 2015 Filed under: Colorado | Tags: Boating, Dolores River, Fishing, Non-Profit, Rafting, Whitewater Rafting, x, y, z Leave a comment
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SCOTT Recalls Vanish Evo Bicycle Helmets Due to Head Injury Hazard
Posted: February 19, 2015 Filed under: Uncategorized | Tags: Consumer Product Safety Council, CPSC, Evo, helmet, Inc., Recall, Scott, Scott USA Leave a commentName of Product: 2015 SCOTT® Vanish Evo Bicycle Helmets
Hazard: The bicycle helmets do not comply with the impact requirements of the CPSC safety standards for bicycle helmets.
Remedy: Refund
Consumers should immediately stop using the bicycle helmet and take it to an authorized SCOTT dealer for a refund of the purchase price.
Consumer Contact: Scott USA toll-free at (888) 607-8365 extension 2012 from 8 a.m. to 6 p.m. MT Monday through Friday, email recall@scott-sports.com, or online at http://www.scott-sports.com and click on Safety and Recalls at the bottom of the page for more information.
Units: About 1,450
Description: The helmets have the brand name “SCOTT” printed on the outer shell of the helmet on the left side. For the Vanish Evo black and grey helmets, the lettering is black; for the Vanish Evo white and grey helmets, the lettering is white. The following serial number ranges are included in this recall: 2014-06/009359 through 2014-09/027210. The serial number is printed on a white sticker inside the back of the helmet.
Incidents/Injuries: None reported.
Sold at: Authorized SCOTT dealers nationwide and online from July 2014 through December 2014 for about $200.
Importer: Scott USA, Inc., of Salt Lake City, Utah
Manufactured in: China
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, Recall, CPSC, Consumer Product Safety Council, Scott, Helmet, Recall, Evo, Scott USA, Inc.
Organziation Pushing to Keep Our Trails Clean. Get Involved and Pick Up After Yourself and Others.
Posted: February 19, 2015 Filed under: Uncategorized | Tags: Clean Trails, CleanTrails.org, Litter, x, y, z Leave a comment
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Volunteer Spotlight – Katie MaloneKatie Malone is all about generating momentum. Throughout her professional career, she has served in various marketing and promotional roles. Having honed the power of social media to build online communities, Katie is now generating momentum and creating a community of Clean Trails members. 
Are you a Great Photographer? Like to Travel? Win this Contest and become Aurora Expeditions Next Photographer
Posted: February 17, 2015 Filed under: Uncategorized | Tags: #Cruise, Aurora Expeditions, Employment, Travel, Travel Photographer, x, y, z Leave a commentCalling All Photographers!
Win the Chance to Become Aurora Expeditions’ Next Official Photographer and an Arctic Adventure Worth AUS$10,000!
February 5th 2015, USA and London: Aurora Expeditions, polar cruising specialists, and the pioneers of Arctic and Antarctica adventures, are on the hunt for their new official photographer.
This exciting opportunity calls for everyone from professional photographers, budding enthusiasts and snap-happy vacationers. Anyone with a talent behind the lens and the love of capturing unforgettable moments has the chance to become the winner of Aurora Expedition’s exciting new photographic competition.
As the new official Polar paparazzo, the winner will travel abroad the Polar Pioneer on Aurora Expedition’s Across the Arctic Circle Voyage. Worth a staggering AUS$10,000, this incredible adventure, from Aberdeen to Longyearbyen, will be the breath-taking backdrop for 14 days worth of spectacular photo opportunities.
To enter, simply upload your best travel photo, and in 50 words or less tell Aurora Expeditions why they should pick you to become their next official Polar Photographer.
For the next step, each entrant must encourage their friends and family to vote on their image. The most voted for images will have the bigger chance of winning. Simple!
A panel of travel and photography experts will then judge the images with the most votes, before choosing a winner.
The photograph can be from anywhere in the world but must fit into one of the following categories: people, nature, landscapes or wildlife.
HOW TO ENTER
Go to the Aurora Expeditions Facebook page and click on the competition link to access the competition page.
1. Upload your photo
2. Tell us in 50 words or less why we should pick you as our Arctic Photographer
3. Fill in your details (so we can contact you if you are the winner)
4. Share your entry with your friends and family and encourage them to vote for you.
The more you promote your entry, the greater the chance of increasing your votes.
Competition closes Sunday, 15 March 2015. Winner will be announced on Friday 28 March 2014. Refer to full terms and conditions here: Competition T&C
PRIZE DETAILS
As the official Arctic photographer the winner will be awarded with return economy airfares from their nearest capital city to Aurora Expeditions’ voyage starting/ending points as well as a berth on their 14-day Across the Arctic Circle expedition departing 30 June 2015.
From Scotland, the winner will capture the Stone Age villages, Viking relics and spectacular birdlife, before exploring Norway’s dramatic coastline and picturesque fishing villages. The brand new photographer must be prepared to snap the celebrations as they cross the Arctic Circle and enter a polar wonderland where the sun never sets.
View full voyage itinerary here. http://www.auroraexpeditions.com.au/expeditions/expedition/across-the-arctic-circle
END
For more information please contact Aurora Expeditions on +61 2 9252 1033, info or visit http://www.auroraexpeditions.co.uk
For further press information please contact:
Frangelica Flook frangelica.flook
Emily Olsen emily.olsen
T: 020 7978 4534, M: 07747 606 898
Notes to Editors:
About Aurora Expeditions
Aurora Expeditions is an Australian-owned adventure company specializing in expedition cruises to wild and remote places. Always travelling in small groups of 54 or less, Aurora Expeditions provide their travellers with the chance to have an intimate experience in these regions with their flexible, innovative itineraries. The aim of each voyage is to provide as many landings as possible, allowing passengers to experience the destination first hand. Each voyage is led by an expedition team of expert naturalists, geologists, historians, staff and crew who help to unlock the wonders of these special places. Deeply committed to education and preservation of the environment, Aurora Expeditions’ philosophy is to respectfully visit wilderness areas in turn creating ambassadors for their protection.
More than allegations and plaintiff’s testimony to sustain a motion for summary judgment for a binding defect in West Virginia
Posted: February 16, 2015 Filed under: Release (pre-injury contract not to sue), Skiing / Snow Boarding, West Virginia | Tags: Adidas America Incorporated, Appellees, Binding, Coal River Canoe Livery, Dynastar, Elk Mountain Outfitters, Elk River Outfitters, Inc., Ltd., Negligence, Product liability, Salomon North American, ski area, Ski Rental, Skis Dynastar, Snowshoe, Toe Piece, West Virginia Leave a commentFailure of the plaintiff to keep the broken binding or have any other proof the binding broke would have changed the outcome of the case.
Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179
State: West Virginia
Plaintiff: Daniel Mrotek
Defendant: Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Appellees, and Elk Mountain Outfitters, Inc., v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc.
Plaintiff Claims: negligence and product liability
Defendant Defenses: Plaintiff did not produce any evidence of negligence on the part of the defendant. Alternatively, the court found that plaintiff signed a valid release.
Year: 2003
Holding: for the defendant
The plaintiff from Florida with a group of friends went to Snowshoe Ski Area in West Virginia for four days of skiing. He first rented skis from the defendant. While renting he signed a release.
While skiing he fell. He claimed the toe piece of one of the bindings came off. Both the plaintiff and one of his friends testified they through the toe piece away.
The plaintiff exchanged the skis for another pair with the defendant. The defendant testified the skis were in good condition and rented out the next day. The plaintiff did not report the ski binding failed nor did he report an accident to anyone.
Upon the plaintiff’s return to Florida, he was suffering head aches and blurred vision. He eventually needed four surgeries and had a permanent shunt placed in his head.
The plaintiff sued the defendant rental business. The rental business filed claims against the ski and binding manufacturer as third party defendants. The trial court, called a Circuit Court in West Virginia dismissed the claims of the plaintiff against the defendant. By doing so the third party claims are also dismissed against the third party defendants. The plaintiff appealed.
Analysis: making sense of the law based on these facts.
The basis of the court’s ruling in favor of the defendant was the plaintiff “failed to identify any act or omission allegedly committed by EMO, which in any way caused or contributed to the alleged skiing accident.” In a negligence claim, the negligence must be proved, it cannot be imputed or presumed.
“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”
After examining all the evidence the court found” The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing.”
The defendant had no evidence of a broken ski or binding. The plaintiff had not told the defendant the binding was broken and had not registered a claim. No third party saw the broken binding other than the friend who testified it had been thrown away.
The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.
In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case.
So Now What?
This case would have been totally different if the plaintiff had kept the toe piece, photographed it or pointed out the problem to a third party or the defendant; anything to support his claim other than his statements.
The main reason for this statement is releases in West Virginia have been disfavored whenever they reach the West Virginia Supreme Court. (See States that do not Support the Use of a Release.)
The defendant did the correct thing by following the protocol set up by the ski rental industry. The ski was examined, and nothing was found to be defective so the ski and binding were rented out the next day. If necessary, the defendant could have brought in the rental receipts showing the ski and bindings had been rented and how often after the plaintiff’s incident.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, West Virginia, Ski Area, Snowshoe, Binding, Ski Rental, Toe Piece, Product Liability, Negligence, Coal River Canoe Livery, Ltd., Elk River Outfitters, Elk Mountain Outfitters, Inc., Elk Mountain Outfitters, Appellees, Elk Mountain Outfitters, Inc., Skis Dynastar, Inc., Dynastar, Adidas America Incorporated, Salomon North American, Inc.,
Mrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179
Posted: February 16, 2015 Filed under: Legal Case, Release (pre-injury contract not to sue), Skiing / Snow Boarding, West Virginia | Tags: Binding, Negligence, Product liability, ski area, Ski Rental, Snowshoe, Toe Piece, West Virginia Leave a commentMrotek, v. Coal River Canoe Livery, Ltd., 214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179
Daniel Mrotek, an Individual, Plaintiff Below, Appellant, v. Coal River Canoe Livery, Ltd., d/b/a Elk River Outfitters, d/b/a Elk Mountain Outfitters, Inc., d/b/a Elk Mountain Outfitters, Defendants below, Appellees, and Elk Mountain Outfitters, Inc., A Corporation, Defendant/Third-Party Plaintiff Below, Appellees, v. Skis Dynastar, Inc., d/b/a Dynastar and Adidas America Incorporated, d/b/a Salomon North American, Inc., Third-Party Defendants Below, Appellees.
No. 31395
SUPREME COURT OF APPEALS OF WEST VIRGINIA
214 W. Va. 490; 590 S.E.2d 683; 2003 W. Va. LEXIS 179
November 18, 2003, Submitted
December 3, 2003, Filed
PRIOR HISTORY: [***1] Appeal from the Circuit Court of Pocahontas County. Honorable James J. Rowe, Judge. Civil Action No. 99-C-37.
DISPOSITION: AFFIRMED.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
COUNSEL: Larry E. Losch, William A. McCourt, Jr., Summersville, West Virginia, Attorneys for Appellant.
William J. Hanna, Robert P. Lorea, Flaherty, Sensabaugh & Bonasso, Charleston, West Virginia, Attorneys for Appellee, Elk Mountain Outfitters, Inc.
Rob J. Aliff, Jackson & Kelly, Charleston, West Virginia, Attorney for Appellee, Skis Dynastar.
Robert M. Steptoe, Jr. [***2] , Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Appellee, Adidas American, Inc.
M. Hance Price, Steptoe & Johnson, Martinsburg, West Virginia, Attorney for Adidas American, Inc.
OPINION
[*491] [**684] Per Curiam:
This appeal was filed by Daniel Mrotek, appellant/plaintiff below (hereinafter referred to as “Mr. Mrotek”), from an order of the Circuit Court of Pocahontas County granting summary judgment in favor of Coal River Canoe, Ltd., d/b/a Elk Mountain Outfitters, Inc. (hereinafter referred to as “EMO”), appellee/defendant below. Mr. Mrotek filed an action against EMO alleging that he sustained injuries as a result of his use of an allegedly defective ski that he rented from EMO. The circuit court granted summary judgment on two alternative grounds. The circuit court found that Mr. Mrotek did not produce any evidence of negligence on the part of EMO. Alternatively, the court found that Mr. Mrotek signed a valid release of his right to sue EMO for any injury caused by its equipment. In this appeal, Mr. Mrotek contends that genuine issues of material fact are in dispute as to whether EMO supplied him with a defective ski and that the release from liability he signed was unenforceable. [***3] Upon review of the briefs and record in this case, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Mrotek is a resident of Florida. On December 28, 1997, Mr. Mrotek and a group of seven friends came to Snowshoe, West Virginia, for a four day skiing vacation. Upon their arrival, Mr. Mrotek and some of his companions rented skiing equipment from EMO. As part of the rental transaction, EMO required all customers to read and execute a document releasing EMO from any harm caused by its equipment. Mr. Mrotek signed the release.
Shortly after renting the ski equipment, Mr. Mrotek and his companions ventured off to engage in night skiing. During the first run of the evening Mr. Mrotek fell and apparently hit his head. A skiing companion, Herman Serpa, saw Mr. Mrotek fall and came to his aid. Mr. Serpa states that he noticed that a toe binding on Mr. Mrotek’s right ski was missing. Mr. Serpa states that he found the toe binding with three rusty screws protruding from it. The toe binding was allegedly thrown away by either Mr. Serpa or Mr. Mrotek. However, neither man appears to have recalled who threw away the toe binding.
Mr. Serpa allegedly returned the defective ski and received [***4] a replacement. Mr. Mrotek did not report the incident to EMO even though, as a result of the fall, he allegedly “became very dizzy, sick at his stomach with vomiting along with severe headaches.”
Upon returning to Florida, Mr. Mrotek sought medical treatment for blurred vision, nausea and exhaustion. A medical examination revealed Mr. Mrotek suffered from Papilledema, i.e., fluid on the brain caused by a damaged ventricle. On February 16, 1998, Mr. Mrotek underwent surgery to place a shunt in his skull to drain the excess fluid. Due to complications, Mr. Mrotek eventually underwent three more surgeries. Although Mr. Mrotek has recovered from the problems caused by the excess fluid, he must permanently have “a small tube running underneath his skin from his brain down his neck and into his heart to maintain the pressure and stability inside his skull.”
Mr. Mrotek filed this action against EMO [**685] [*492] in 1999, 1 alleging EMO supplied him with a defective ski which caused him to fall and sustain a head injury. 2 After a period of discovery, EMO moved for summary judgment. By order entered June 17, 2002, the circuit court granted summary judgment in favor of EMO. 3 This appeal is a result [***5] of the circuit court’s ruling.
1 The record submitted on appeal is extremely sparse and does not contain the pleadings.
2 EMO filed a third-party complaint against the suppliers of the ski, Skis Dynastar, Inc. and Salomon North American, Inc., for indemnity or contribution.
3 The circuit court’s order also dismissed EMO’s third-party complaint.
II.
STANDARD OF REVIEW
The standard for our review of an order granting summary judgment is well established. [HN1] “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Insofar as “‘appellate review of an entry of summary judgment is plenary, this Court, like the circuit court, must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.'” Provident Life and Accident Ins. Co. v. Bennett, 199 W. Va. 236, 238, 483 S.E.2d 819, 821 (1997) (quoting [***6] Asaad v. Res-Care, Inc., 197 W. Va. 684, 687, 478 S.E.2d 357, 360 (1996)). We have made clear that [HN2] “summary judgment is appropriate [only] if ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'” Pritt v. Republican Nat’l Comm., 210 W. Va. 446, 452, 557 S.E.2d 853, 859 (2001) (quoting W. Va.R. Civ. P. 56(c)). Further, [HN3] “summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syl. pt. 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). With these standards as our guide, we now address the issues asserted on appeal.
III.
DISCUSSION
The dispositive issue in this case is the determination by the circuit court that Mr. Mrotek “failed to identify any act or omission allegedly committed by EMO which in any way caused or contributed to the alleged skiing accident.” [HN4] This Court has observed that “it is an elementary principle [***7] of law that negligence will not be imputed or presumed. The bare fact of an injury standing alone, without supporting evidence, is not sufficient to justify an inference of negligence.” Walton v. Given, 158 W. Va. 897, 902, 215 S.E.2d 647, 651 (1975). 4 Moreover, [HN5] “negligence . . . is a jury question when the evidence is conflicting or the facts are such that reasonable men may draw different conclusions from them.” Burgess v. Jefferson, 162 W. Va. 1, 3, 245 S.E.2d 626, 628 (1978).
4 Mr. Mrotek contends that the doctrine of res ipsa loquitur should be applied to the facts of this case to overcome summary judgment. [HN6] “Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Syl. pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997). Clearly, under the Foster formulation of [HN7] res ipsa loquitur, the doctrine simply has no application to falling while skiing–which is an extremely frequent incident that can occur without any negligence. See Syl. pt. 2, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991) [HN8] (“The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant’s negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.”).
[***8] The primary evidence relied upon by Mr. Mrotek was the deposition [**686] testimony of Mr. Serpa. Mr. Mrotek presented the deposition [*493] testimony of Mr. Serpa to show that the toe binding on the right ski came loose. Mr. Serpa testified that he found a piece of the binding with three rusty screws protruding from it. There was also testimony by Mr. Serpa that he returned the defective ski to EMO and was given a replacement. There was also evidence to show that the skis rented by Mr. Mrotek were not tested for weakness by EMO prior to 1997-98 ski season.
EMO took the position that nothing happened to the skis that were rented to Mr. Mrotek. According to EMO’s records the skis rented to Mr. Mrotek were returned in good condition and were rented out again the day after Mr. Mrotek returned them. EMO presented an affidavit from its management employee, Charlie McDaniels. Mr. McDaniels indicated that the bindings used on the skis rented by EMO were made of aluminum or were galvanized and would not rust.
In looking at the evidence in the light most favorable to Mr. Mrotek, we do not find a material issue of fact in dispute. EMO presented evidence to establish that no defect existed in the skis rented [***9] to Mr. Mrotek. In fact, there was evidence that Mr. Mrotek examined the skis before renting them and found nothing wrong. EMO also established that they had no record to show that Mr. Serpa or Mr. Mrotek turned in a broken ski. Mr. Mrotek presented bare testimonial evidence to show that a toe binding broke loose from the right ski. No actual evidence was introduced showing the defective ski or the parts that were allegedly broken from the ski. See Williams v. Precision Coil, Inc., 194 W. Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995) [HN9] (“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”). The only reasonable conclusion that could be reached from all the evidence is that Mr. Mrotek fell while skiing. [HN10] The mere fact of falling while skiing is not actionable negligence. See Painter v. Peavy, 192 W. Va. 189, 192-93, 451 S.E.2d 755, 758-59 (1994) [HN11] (“The party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.”); Syl. pt.1, in part, Parsley v. General Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981) [***10] [HN12] (“In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission[.]”). Consequently, summary judgment was appropriate under the facts of this case. 5
5 Because we affirm the circuit court’s initial reason for granting summary judgment, we need not address the issue involving the release signed by Mr. Mrotek.
IV.
CONCLUSION
In view of the foregoing, the circuit court’s order granting summary judgment in favor of EMO is affirmed.
Affirmed.
Recall: 2014 Marin MBX 50 and Tiny Trail Bicycles
Posted: February 14, 2015 Filed under: Mountain Biking | Tags: CPSC, Marin, Marin Bikes, Marin Mountain Bikes, Recall, Tiny Trail Leave a commentMarin Mountain Bikes Inc., of Novato, Calif.
Remedy: Marin Mountain Bikes at (800) 222-7557 from 9 a.m. to 5 p.m. PT Monday through Friday, or visit the firm’s website at www.marinbikes.com and click on “Recalls/Safety” for more information.
Recall Information: The handlebars can loosen or separate during use. This can cause the rider to lose control and/or crash, posing the risk of injury.
Units: 450 in US and Canada
Year Manufactured:
Incidents/Injuries: None
Marin 2014 model MBX 50 and Tiny Trail boys and girls bicycles with 16-inch knobby tires. The single speed bicycles have high-rise handlebars and training wheels. The boy’s bicycles were sold in red and have serial number HA14980XXXXXX. The girl’s bicycles were sold in purple and have serial number HA14982XXXXXX. Serial numbers are printed on a foil label affixed to the underside of the base of the down tube. “Marin” is printed on the seat and the downtube. “Tiny Trail” or “MBX 50” is printed on the bicycles chain guard.
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
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