Is your local race a fund-raiser for a charity or an event for an out of state corporation? This lawsuit might decide
Posted: October 22, 2014 Filed under: Racing | Tags: Bipartisan Campaign Reform Act, Calera Capital, CGI, Charity, Competitor Group Inc., Fraud, Misrepresentation, Rock ’n’ Roll Marathon, St. Louis Rock ’n’ Roll Marathon, U.S. District Court for the Eastern District of Missouri, Volunteering, Yvette Joy Liebesman Leave a commentLawsuit claims that race organizer; make money from volunteers and volunteers should be paid. Entire US race and event “business” could change or disappear.
Most events that we love to participate in, attend or watch are owned by for-profit corporations. They make money for a business. Those events are dependent upon hundreds if not thousands of volunteers. Many state or imply a charity, whose name is in the title of the event is the reason for the event, and thus the volunteers are working for the charity.
This lawsuit says that is not quite so. In fact, this lawsuit says most of what I believed and probably a lot of what you believe about these events are not true.
The lawsuit on its face says that the volunteers at these events were misled and should have been paid. On its face, it’s hard to ask for money when you sign up as a volunteer. You agree to volunteer and you are a volunteer, and you don’t get paid.
However, that is not the bottom line here. Based on the article:
· The entire operation is fraudulent.
· The volunteers were recruited to provide community service when, in fact, they were not, they were working for a for-profit corporation, not a charity.
· Charities pay to have their name attached to the event.
· The more a charity pays, the more the charity is recognized by the event.
· Teams that raise money for these events Charites, the base money goes to the event, and only the money raised over the minimum goes to the charity.
· The event then uses the charities name to recruit volunteers for the event.
Is the plaintiff going to win the lawsuit? I have no idea, but allegations of fraud change litigation, throw out the normal defenses and generally create a different courtroom drama. It is never good to be defending someone who looks bad.
However, the major impact may have already occurred. Will people volunteer to sign up for these events as volunteers? Will charities continue to associate with these events and will those charities be linked with the fraud or for the good they do?
Without the thousands of volunteers, these events won’t happen. Entry fees will either skyrocket or go away. Charities may no longer be associated with any of these events because they are simply bad news.
However, I think this lawsuit may have a chance; the plaintiff is an associate professor at the Saint Louis University School of Law.
The damage is already done. Those races and events that have been upfront from the beginning are not going to be affected except by a few volunteers who are not paying attention or confused. However, the big events which rely on thousands of volunteers are either going to change, evolve or go away.
See Lawsuit alleges CGI exploited race volunteers and This Marathon Lawsuit May Shake Up the Running World
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Journal of Emergency Medical Services article brings back the tourniquet for major blood loss wounds.
Posted: October 21, 2014 Filed under: First Aid, Medical | Tags: Direct Pressure, External Hemorrhage, first aid, JEMS, Journal of Emergency Medical Services, OutdoorLaw, OutdoorRecreationLaw, OutsideLaw, Rec-LawBlog, Tourniquet Leave a commentMilitary experience showed that to save lives you need to use tourniquets; direct pressure was not working.
This is a somewhat complicated article for a pretty simple issue. Wounds with major blood loss or External Hemorrhage as the article refers to them, do not respond to direct pressure: Tourniquet’s work.
If you are in the outdoors or SAR, you should read the article, check with your local physician advisor and counsel and see if this is a technique (and equipment) you should include in your first-aid kit.
See New External Hemorrhage Control Evidence-Based Guideline
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The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Posted: October 20, 2014 Filed under: Assumption of the Risk, California, Hawaii | Tags: #Cruise, Ana Maria Andia, Arnott's Lodge and Hike Adventures, assumption of the risk, California, Celebrity Cruises, Cruise ship, Excursion, Full Service Travel, Hawaii, Hiking, Inc., Lava, Lava Field, M.D., Primary Assumption of the Risk, Volcano 2 CommentsPlaintiff signed up on a cruise ship to hike on a lava field. She was fully informed of the risks and admitted to knowing the risks in advance which is defined as assumption of the risk.
Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247
State: California and Hawaii, the accident occurred in Hawaii but the lawsuit was filed in California
Plaintiff: Ana Maria Andia, M.D.
Defendant: Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures
Plaintiff Claims: (1) negligence, on grounds that Defendant breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Defendant failed to warn Plaintiff of the known dangers and risks associated with the lava hike. & (1) negligence, on grounds that the defendant cruise breached its duty of care to Plaintiff by failing to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that the defendant cruise failed to warn Plaintiff of the dangers and risks associated with the lava hike.
Defendant Defenses: assumption of the risk
Holding: for the defendant
Year: 2007
This is a simple case, however, the facts are long because the defendants provided the plaintiff with a ton of information about the risks of the activity which the court reviewed.
The plaintiff signed up for a hike in the lava fields in Hawaii while on a cruise ship. The information about the hike stated the distance of the hike was always changing because of the lava flow. The hikers could return at any time; however, if they did they would return the way they came by themselves.
This information was provided to the plaintiff in a description of the hike provided by the defendant cruise line, in a brochure that plaintiff was given, in a release the plaintiff signed, and during a talk before the hike began.
Plaintiff in her deposition also admitted that she was an experienced hiker, that falling was always a possibility when hiking.
During a point in the hike, the plaintiff decided to turn around. While hiking back to the ranger station she fell breaking her foot. She sued for her injuries.
The lawsuit was started in the Federal District Court of Southern California. The defendant travel company was dismissed earlier in the case. The defendant hiking company cruise line filed motions for summit judgment.
Summary of the case
The court first looked at the claims against the defendant’s hiking business. (The type of entity or whether it was an entity was never identified, and the court was not sure what the hiking company was also.)
The basis of the motion from the hiking company was that the risk of “…slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking.”
The duty of care owed by the defendant hiking company in this situation is:
…a duty to use due care and avoid injury to others, and may be held liable if they’re careless conduct injures another person. The doctrine of primary assumption of the risk is an exception to this general rule. The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity; the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”
The court then found the doctrine of primary assumption of the risk applied because:
…conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”
Summing up its own analyses of primary assumption of risk the court stated:
If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity.
The plaintiff argued that the hiking company, Arnott’s, was guilty of gross negligence because:
Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day of her cruise vacation.
However, the plaintiff’s arguments were not backed up with any facts. Arguing a point with facts that do not support your argument fails.
The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.
Nor did the actions of the defendant’s hiking company increase the risk of injury to the plaintiff.
The plaintiff knew the risks of hiking prior to the hike in question and admitted that in her deposition. The plaintiff was given information about the hike and had the risks of the hike explained to her four different ways prior to the hike. The plaintiff assumed the risk of here injuries, and the risk that plaintiff suffered causing her injury were visible to anyone hiking in the lava field.
The next issue the court reviewed with regard to the defendant hiking company was the duty to warn. “It is established law, at least in the exercise of ordinary care, that one is under no duty to warn an-other of a danger equally obvious to both.”
The court found for the hiking company on this issue based on the facts and found the plaintiff assumed the risk of her injuries because she could see the risk and continued on anyway. If you can see the risk, you cannot complain about not knowing about the risk.
The plaintiff’s claims against the cruise ship were then reviewed. A cruise ship has a different duty of care owed to its passengers. “The duty of care of the owner of an excursion ship is a matter of federal maritime law. That duty is to exercise reasonable care under the circumstances.”
Here the plaintiff presented no evidence that the defendant cruise line did not exercise reasonable care to the plaintiff. The same facts when applied to the case also showed the defendant cruise ship had not breached its duty to warn to the plaintiff. The information and brochure were provided by the cruise ship to the plaintiff when she signed up for the hike.
[I]t is generally accepted that where a carrier. . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.”
So Now What?
The case was won on two issues. The first was the risks of the activity were pointed out over and over again by the hiking company to the plaintiff. Information, brochures, safety talks all stated the risks of the activity which the plaintiff accepted when she turned around.
The second issue was the plaintiff in her deposition admitted to hiking experience. Possibly one or the other could have been enough to prove a defense for the defendants in this case; however, since both were so clear, the defense was easily proven.
Many times on hikes, we point out risk, as well as birds and beauty, to others with us. If you are guiding a hike, this requirement should concentrate your attention to these issues and your actions in pointing out risks. You can cover many of the risks of an activity such as hiking with a general talk at the beginning. “We are going to be walking on uneven surfaces. There will be many rocks and roots to trip on. Pay attention to where you are putting your feet and make sure you are on a solid surface when walking.”
As much as releases are an important defense and source of information for your guests, assumption of the risk is making a comeback in the outdoor recreation industry. If your release fails for any reason, assumption of the risk is the best and maybe the only other defense you have available.
Besides the more your gusts know and understand the risks of the activity the less likely the will be to be injured and the better the experience they will have. Leave scaring guests to fun houses at Halloween.
The one confusing issue in the case was the courts use of California law to decide a case that occurred in Hawaii. The federal courts are for situations like this when the parties are from different states. The plaintiff was from California, and the defendants were from Hawaii. However, without an agreement as to the law that should be applied to the case, Hawaiian law, I believe should be applied. Here the court used California law.
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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 Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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New Ohio law allows Camps and Schools to obtain Epinephrine in their name for kids
Posted: October 16, 2014 Filed under: Minors, Youth, Children, Ohio, Summer Camp | Tags: Autoinjector, Day Camp, Epinephrine, Summer Camp Leave a commentSmart law might save a few kids and not create criminals of the adults to care for them.
The entire law is attached below, but in short, schools as defined in the act and camps can now go to pharmacies and obtain epinephrine for their kids. There must be a plan in place on how to store and use the epinephrine and the persons administering the epinephrine must be educated in its use.
Summer Camps and Day Camps as defined by state law can also obtain epinephrine for their kids. The law provides immunity from lawsuits for camps and people who use the autoinjectors under the law.
The law is a good step forward. Every other state should adopt a similar law.
Again thanks to Danny Twilley for bringing this to my attention.
The act can be seen here: http://www.legislature.state.oh.us/bills.cfm?ID=130_HB_296
Here is the new law. I’ve highlighted sections that are important.
AN ACT
To amend sections 3313.713, 3313.718, 4729.51, and 4729.60 and to enact sections 3313.7110, 3313.7111, 3314.143, 3326.28, 3328.29, and 5101.76 of the Revised Code to permit schools and camps to procure and use epinephrine autoinjectors in accordance with prescribed policies, to exempt them from licensing requirements related to the possession of epinephrine autoinjectors, and to declare an emergency.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 3313.713, 3313.718, 4729.51, and 4729.60 be amended and sections 3313.7110, 3313.7111, 3314.143, 3326.28, 3328.29, and 5101.76 of the Revised Code be enacted to read as follows:
Sec. 3313.713. (A) As used in this section:
(1) “Drug” means a drug, as defined in section 4729.01 of the Revised Code, that is to be administered pursuant to the instructions of the prescriber, whether or not required by law to be sold only upon a prescription.
(2) “Federal law” means the “Individuals with Disabilities Education Act of 1997,” 111 Stat. 37, 20 U.S.C. 1400, as amended.
(3) “Prescriber” has the same meaning as in section 4729.01 of the Revised Code.
(B) The board of education of each city, local, exempted village, and joint vocational school district shall, not later than one hundred twenty days after September 20, 1984, adopt a policy on the authority of its employees, when acting in situations other than those governed by sections 2305.23, 2305.231, and 3313.712, and 3313.7110 of the Revised Code, to administer drugs prescribed to students enrolled in the schools of the district. The policy shall provide either that:
(1) Except as otherwise required by federal law, no person employed by the board shall, in the course of such employment, administer any drug prescribed to any student enrolled in the schools of the district.
(2) Designated persons employed by the board are authorized to administer to a student a drug prescribed for the student. Effective July 1, 2011, only employees of the board who are licensed health professionals, or who have completed a drug administration training program conducted by a licensed health professional and considered appropriate by the board, may administer to a student a drug prescribed for the student. Except as otherwise provided by federal law, the board’s policy may provide that certain drugs or types of drugs shall not be administered or that no employee shall use certain procedures, such as injection, to administer a drug to a student.
(C) No drug prescribed for a student shall be administered pursuant to federal law or a policy adopted under division (B) of this section until the following occur:
(1) The board, or a person designated by the board, receives a written request, signed by the parent, guardian, or other person having care or charge of the student, that the drug be administered to the student.
(2) The board, or a person designated by the board, receives a statement, signed by the prescriber, that includes all of the following information:
(a) The name and address of the student;
(b) The school and class in which the student is enrolled;
(c) The name of the drug and the dosage to be administered;
(d) The times or intervals at which each dosage of the drug is to be administered;
(e) The date the administration of the drug is to begin;
(f) The date the administration of the drug is to cease;
(g) Any severe adverse reactions that should be reported to the prescriber and one or more phone numbers at which the prescriber can be reached in an emergency;
(h) Special instructions for administration of the drug, including sterile conditions and storage.
(3) The parent, guardian, or other person having care or charge of the student agrees to submit a revised statement signed by the prescriber to the board or a person designated by the board if any of the information provided by the prescriber pursuant to division (C)(2) of this section changes.
(4) The person authorized by the board to administer the drug receives a copy of the statement required by division (C)(2) or (3) of this section.
(5) The drug is received by the person authorized to administer the drug to the student for whom the drug is prescribed in the container in which it was dispensed by the prescriber or a licensed pharmacist.
(6) Any other procedures required by the board are followed.
(D) If a drug is administered to a student, the board of education shall acquire and retain copies of the written requests required by division (C)(1) and the statements required by divisions (C)(2) and (3) of this section and shall ensure that by the next school day following the receipt of any such statement a copy is given to the person authorized to administer drugs to the student for whom the statement has been received. The board, or a person designated by the board, shall establish a location in each school building for the storage of drugs to be administered under this section and federal law. All such drugs shall be stored in that location in a locked storage place, except that drugs that require refrigeration may be kept in a refrigerator in a place not commonly used by students.
(E) No person who has been authorized by a board of education to administer a drug and has a copy of the most recent statement required by division (C)(2) or (3) of this section given to the person in accordance with division (D) of this section prior to administering the drug is liable in civil damages for administering or failing to administer the drug, unless such person acts in a manner that constitutes gross negligence or wanton or reckless misconduct.
(F) A board of education may designate a person or persons to perform any function or functions in connection with a drug policy adopted under this section either by name or by position, training, qualifications, or similar distinguishing factors.
(G) A policy adopted by a board of education pursuant to this section may be changed, modified, or revised by action of the board.
(H) Nothing in this section shall be construed to require a person employed by a board of education to administer a drug to a student unless the board’s policy adopted in compliance with this section establishes such a requirement. A board shall not require an employee to administer a drug to a student if the employee objects, on the basis of religious convictions, to administering the drug.
Nothing in this section affects the application of section 2305.23, 2305.231, or 3313.712, or 3313.7110 of the Revised Code to the administration of emergency care or treatment to a student.
Nothing in this section affects the ability of a public or nonpublic school to participate in a school-based fluoride mouth rinse program established by the director of health pursuant to section 3701.136 of the Revised Code. Nothing in this section affects the ability of a person who is employed by, or who volunteers for, a school that participates in such a program to administer fluoride mouth rinse to a student in accordance with section 3701.136 of the Revised Code and any rules adopted by the director under that section.
Sec. 3313.718. (A) As used in this section, “prescriber” has the same meaning as in section 4729.01 of the Revised Code.
(B) Notwithstanding section 3313.713 of the Revised Code or any policy adopted under that section, a student of a school operated by a city, local, exempted village, or joint vocational school district or a student of a chartered nonpublic school may possess and use an epinephrine autoinjector to treat anaphylaxis, if all of the following conditions are satisfied:
(1) The student has the written approval of the prescriber of the autoinjector and, if the student is a minor, the written approval of the parent, guardian, or other person having care or charge of the student. The prescriber’s written approval shall include at least all of the following information:
(a) The student’s name and address;
(b) The names and dose of the medication contained in the autoinjector;
(c) The date the administration of the medication is to begin;
(d) The date, if known, that the administration of the medication is to cease;
(e) Acknowledgment that the prescriber has determined that the student is capable of possessing and using the autoinjector appropriately and has provided the student with training in the proper use of the autoinjector;
(f) Circumstances in which the autoinjector should be used;
(g) Written instructions that outline procedures school employees should follow in the event that the student is unable to administer the anaphylaxis medication or the medication does not produce the expected relief from the student’s anaphylaxis;
(h) Any severe adverse reactions that may occur to the child using the autoinjector that should be reported to the prescriber;
(i) Any severe adverse reactions that may occur to another child, for whom the autoinjector is not prescribed, should such a child receive a dose of the medication;
(j) At least one emergency telephone number for contacting the prescriber in an emergency;
(k) At least one emergency telephone number for contacting the parent, guardian, or other person having care or charge of the student in an emergency;
(l) Any other special instructions from the prescriber.
(2) The school principal and, if a school nurse is assigned to the student’s school building, the school nurse has received copies of the written approvals required by division (B)(1) of this section.
(3) The school principal or, if a school nurse is assigned to the student’s school building, the school nurse has received a backup dose of the anaphylaxis medication from the parent, guardian, or other person having care or charge of the student or, if the student is not a minor, from the student.
If these conditions are satisfied, the student may possess and use the autoinjector at school or at any activity, event, or program sponsored by or in which the student’s school is a participant.
(C) Whenever a student uses an autoinjector at school or at any activity, event, or program sponsored by or in which the student’s school is a participant or whenever a school employee administers anaphylaxis medication to a student at such times that was possessed by the student pursuant to the written approvals described in division (B)(1) of this section, a school employee shall immediately request assistance from an emergency medical service provider.
(D)(1) A school district, member of a school district board of education, or school district employee is not liable in damages in a civil action for injury, death, or loss to person or property allegedly arising from a district employee’s prohibiting a student from using an autoinjector because of the employee’s good faith belief that the conditions of division (B) of this section had not been satisfied. A school district, member of a school district board of education, or school district employee is not liable in damages in a civil action for injury, death, or loss to person or property allegedly arising from a district employee’s permitting a student to use an autoinjector because of the employee’s good faith belief that the conditions of division (B) of this section had been satisfied. Furthermore, when a school district is required by this section to permit a student to possess and use an autoinjector because the conditions of division (B) of this section have been satisfied, the school district, any member of the school district board of education, or any school district employee is not liable in damages in a civil action for injury, death, or loss to person or property allegedly arising from the use of the autoinjector by a student for whom it was not prescribed.
This section does not eliminate, limit, or reduce any other immunity or defense that a school district, member of a school district board of education, or school district employee may be entitled to under Chapter 2744. or any other provision of the Revised Code or under the common law of this state.
(2) A chartered nonpublic school or any officer, director, or employee of the school is not liable in damages in a civil action for injury, death, or loss to person or property allegedly arising from a school employee’s prohibiting a student from using an autoinjector because of the employee’s good faith belief that the conditions of division (B) of this section had not been satisfied. A chartered nonpublic school or any officer, director, or employee of the school is not liable in damages in a civil action for injury, death, or loss to person or property allegedly arising from a school employee’s permitting a student to use an autoinjector because of the employee’s good faith belief that the conditions of division (B) of this section had been satisfied. Furthermore, when a chartered nonpublic school is required by this section to permit a student to possess and use an autoinjector because the conditions of division (B) of this section have been satisfied, the chartered nonpublic school or any officer, director, or employee of the school is not liable in damages in a civil action for injury, death, or loss to person or property allegedly arising from the use of the autoinjector by a student for whom it was not prescribed.
Sec. 3313.7110. (A) The board of education of each city, local, exempted village, or joint vocational school district may procure epinephrine autoinjectors for each school operated by the district to have on the school premises for use in emergency situations identified under division (C)(5) of this section. A district board that elects to procure epinephrine autoinjectors under this section is encouraged to maintain, at all times, at least two epinephrine injectors at each school operated by the district.
(B) A district board that elects to procure epinephrine autoinjectors under this section shall require the district’s superintendent to adopt a policy governing their maintenance and use. Before adopting the policy, the superintendent shall consult with a licensed health professional authorized to prescribe drugs, as defined in section 4729.01 of the Revised Code.
(C) A component of a policy adopted by a superintendent under division (B) of this section shall be a prescriber-issued protocol specifying definitive orders for epinephrine autoinjectors and the dosages of epinephrine to be administered through them. The policy also shall do all of the following:
(1) Identify the one or more locations in each school operated by the district in which an epinephrine autoinjector must be stored;
(2) Specify the conditions under which an epinephrine autoinjector must be stored, replaced, and disposed;
(3) Specify the individuals employed by or under contract with the district board, in addition to a school nurse licensed under section 3319.221 of the Revised Code or an athletic trainer licensed under Chapter 4755. of the Revised Code, who may access and use an epinephrine autoinjector to provide a dosage of epinephrine to an individual in an emergency situation identified under division (C)(5) of this section;
(4) Specify any training that employees or contractors specified under division (C)(3) of this section, other than a school nurse or athletic trainer, must complete before being authorized to access and use an epinephrine autoinjector;
(5) Identify the emergency situations, including when an individual exhibits signs and symptoms of anaphylaxis, in which a school nurse, athletic trainer, or other employees or contractors specified under division (C)(3) of this section may access and use an epinephrine autoinjector;
(6) Specify that assistance from an emergency medical service provider must be requested immediately after an epinephrine autoinjector is used;
(7) Specify the individuals, in addition to students, school employees or contractors, and school visitors, to whom a dosage of epinephrine may be administered through an epinephrine autoinjector in an emergency situation specified under division (C)(5) of this section.
(D) A school or school district, a member of a district board of education, or a district or school employee or contractor is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from an act or omission associated with procuring, maintaining, accessing, or using an epinephrine autoinjector under this section, unless the act or omission constitutes willful or wanton misconduct.
This section does not eliminate, limit, or reduce any other immunity or defense that a school or school district, member of a district board of education, or district or school employee or contractor may be entitled to under Chapter 2744. or any other provision of the Revised Code or under the common law of this state.
(E) A school district board of education may accept donations of epinephrine autoinjectors from a wholesale distributor of dangerous drugs or a manufacturer of dangerous drugs, as defined in section 4729.01 of the Revised Code, and may accept donations of money from any person to purchase epinephrine autoinjectors.
(F) A district board that elects to procure epinephrine autoinjectors under this section shall report to the department of education each procurement and occurrence in which an epinephrine autoinjector is used from a school’s supply of epinephrine autoinjectors.
Sec. 3313.7111. (A) With the approval of its governing authority, a chartered or nonchartered nonpublic school may procure epinephrine autoinjectors in the manner prescribed by section 3313.7110 of the Revised Code. A chartered or nonchartered nonpublic school that elects to do so shall comply with all provisions of that section as if it were a school district.
(B) A chartered or nonchartered nonpublic school, a member of a chartered or nonchartered nonpublic school governing authority, or an employee or contractor of the school is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from an act or omission associated with procuring, maintaining, accessing, or using an epinephrine autoinjector under this section, unless the act or omission constitutes willful or wanton misconduct.
(C) A chartered or nonchartered nonpublic school may accept donations of epinephrine autoinjectors from a wholesale distributor of dangerous drugs or a manufacturer of dangerous drugs, as defined in section 4729.01 of the Revised Code, and may accept donations of money from any person to purchase epinephrine autoinjectors.
(D) A chartered or nonchartered nonpublic school that elects to procure epinephrine autoinjectors under this section shall report to the department of education each procurement and occurrence in which an epinephrine autoinjector is used from the school’s supply of epinephrine autoinjectors.
Sec. 3314.143. (A) With the approval of its governing authority, a community school established under this chapter may procure epinephrine autoinjectors in the manner prescribed by section 3313.7110 of the Revised Code. A community school that elects to do so shall comply with all provisions of that section as if it were a school district.
(B) A community school, a member of a community school governing authority, or a community school employee or contractor is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from an act or omission associated with procuring, maintaining, accessing, or using an epinephrine autoinjector under this section, unless the act or omission constitutes willful or wanton misconduct.
This division does not eliminate, limit, or reduce any other immunity or defense that a community school or governing authority, member of a community school governing authority, or community school employee or contractor may be entitled to under Chapter 2744. or any other provision of the Revised Code or under the common law of this state.
(C) A community school may accept donations of epinephrine autoinjectors from a wholesale distributor of dangerous drugs or a manufacturer of dangerous drugs, as defined in section 4729.01 of the Revised Code, and may accept donations of money from any person to purchase epinephrine autoinjectors.
(D) A community school that elects to procure epinephrine autoinjectors under this section shall report to the department of education each procurement and occurrence in which an epinephrine autoinjector is used from the school’s supply of epinephrine autoinjectors.
Sec. 3326.28. (A) With the approval of its governing body, a STEM school established under this chapter may procure epinephrine autoinjectors in the manner prescribed by section 3313.7110 of the Revised Code. A STEM school that elects to do so shall comply with all provisions of that section as if it were a school district.
(B) A STEM school, a member of a STEM school governing body, or a STEM school employee or contractor is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from an act or omission associated with procuring, maintaining, accessing, or using an epinephrine autoinjector under this section, unless the act or omission constitutes willful or wanton misconduct.
This division does not eliminate, limit, or reduce any other immunity or defense that a STEM school or governing body, member of a STEM school governing body, or STEM school employee or contractor may be entitled to under Chapter 2744. or any other provision of the Revised Code or under the common law of this state.
(C) A STEM school may accept donations of epinephrine autoinjectors from a wholesale distributor of dangerous drugs or a manufacturer of dangerous drugs, as defined in section 4729.01 of the Revised Code, and may accept donations of money from any person to purchase epinephrine autoinjectors.
(D) A STEM school that elects to procure epinephrine autoinjectors under this section shall report to the department of education each procurement and occurrence in which an epinephrine autoinjector is used from the school’s supply of epinephrine autoinjectors.
Sec. 3328.29. (A) With the approval of its board of trustees, a college-preparatory boarding school established under this chapter may procure epinephrine autoinjectors in the manner prescribed by section 3313.7110 of the Revised Code. A college-preparatory boarding school that elects to do so shall comply with all provisions of that section as if it were a school district.
(B) A college-preparatory boarding school, a member of a college-preparatory boarding school board of trustees, or a college-preparatory boarding school employee or contractor is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from an act or omission associated with procuring, maintaining, accessing, or using an epinephrine autoinjector under this section, unless the act or omission constitutes willful or wanton misconduct.
This division does not eliminate, limit, or reduce any other immunity or defense that a college-preparatory boarding school or board of trustees, member of a college-preparatory boarding school board of trustees, or college-preparatory boarding school employee or contractor may be entitled to under Chapter 2744. or any other provision of the Revised Code or under the common law of this state.
(C) A college-preparatory boarding school may accept donations of epinephrine autoinjectors from a wholesale distributor of dangerous drugs or a manufacturer of dangerous drugs, as defined in section 4729.01 of the Revised Code, and may accept donations of money from any person to purchase epinephrine autoinjectors.
(D) A college-preparatory boarding school that elects to procure epinephrine autoinjectors under this section shall report to the department of education each procurement and occurrence in which an epinephrine autoinjector is used from a school’s supply of epinephrine autoinjectors.
Sec. 4729.51. (A) No (1) Except as provided in division (A)(2) of this section, no person other than a registered wholesale distributor of dangerous drugs shall possess for sale, sell, distribute, or deliver, at wholesale, dangerous drugs, except as follows:
(1)(a) A pharmacist who is a licensed terminal distributor of dangerous drugs or who is employed by a licensed terminal distributor of dangerous drugs may make occasional sales of dangerous drugs at wholesale;
(2)(b) A licensed terminal distributor of dangerous drugs having more than one establishment or place may transfer or deliver dangerous drugs from one establishment or place for which a license has been issued to the terminal distributor to another establishment or place for which a license has been issued to the terminal distributor if the license issued for each establishment or place is in effect at the time of the transfer or delivery.
(2) A manufacturer of dangerous drugs may donate epinephrine autoinjectors to any of the following:
(a) The board of education of a city, local, exempted village, or joint vocational school district;
(b) A community school established under Chapter 3314. of the Revised Code;
(c) A STEM school established under Chapter 3326. of the Revised Code;
(d) A college-preparatory boarding school established under Chapter 3328. of the Revised Code;
(e) A chartered or nonchartered nonpublic school.
(B)(1) No registered wholesale distributor of dangerous drugs shall possess for sale, or sell, at wholesale, dangerous drugs to any person other than the following:
(a) Except as provided in division (B)(2)(a) of this section, a licensed health professional authorized to prescribe drugs;
(b) An optometrist licensed under Chapter 4725. of the Revised Code who holds a topical ocular pharmaceutical agents certificate;
(c) A registered wholesale distributor of dangerous drugs;
(d) A manufacturer of dangerous drugs;
(e) Subject to division (B)(3) of this section, a licensed terminal distributor of dangerous drugs;
(f) Carriers or warehouses for the purpose of carriage or storage;
(g) Terminal or wholesale distributors of dangerous drugs who are not engaged in the sale of dangerous drugs within this state;
(h) An individual who holds a current license, certificate, or registration issued under Title 47 XLVII of the Revised Code and has been certified to conduct diabetes education by a national certifying body specified in rules adopted by the state board of pharmacy under section 4729.68 of the Revised Code, but only with respect to insulin that will be used for the purpose of diabetes education and only if diabetes education is within the individual’s scope of practice under statutes and rules regulating the individual’s profession;
(i) An individual who holds a valid certificate issued by a nationally recognized S.C.U.B.A. diving certifying organization approved by the state board of pharmacy in rule, but only with respect to medical oxygen that will be used for the purpose of emergency care or treatment at the scene of a diving emergency;
(j) Except as provided in division (B)(2)(b) of this section, a business entity that is a corporation formed under division (B) of section 1701.03 of the Revised Code, a limited liability company formed under Chapter 1705. of the Revised Code, or a professional association formed under Chapter 1785. of the Revised Code if the entity has a sole shareholder who is a licensed health professional authorized to prescribe drugs and is authorized to provide the professional services being offered by the entity;
(k) Except as provided in division (B)(2)(c) of this section, a business entity that is a corporation formed under division (B) of section 1701.03 of the Revised Code, a limited liability company formed under Chapter 1705. of the Revised Code, a partnership or a limited liability partnership formed under Chapter 1775. of the Revised Code, or a professional association formed under Chapter 1785. of the Revised Code, if, to be a shareholder, member, or partner, an individual is required to be licensed, certified, or otherwise legally authorized under Title XLVII of the Revised Code to perform the professional service provided by the entity and each such individual is a licensed health professional authorized to prescribe drugs;
(l) With respect to epinephrine autoinjectors that may be possessed under section 3313.7110, 3313.7111, 3314.143, 3326.28, or 3328.29 of the Revised Code, any of the following: the board of education of a city, local, exempted village, or joint vocational school district; a chartered or nonchartered nonpublic school; a community school established under Chapter 3314. of the Revised Code; a STEM school established under Chapter 3326. of the Revised Code; or a college-preparatory boarding school established under Chapter 3328. of the Revised Code;
(m) With respect to epinephrine autoinjectors that may be possessed under section 5101.76 of the Revised Code, any of the following: a residential camp, as defined in section 2151.011 of the Revised Code; a child day camp, as defined in section 5104.01 of the Revised Code; or a child day camp operated by any county, township, municipal corporation, township park district created under section 511.18 of the Revised Code, park district created under section 1545.04 of the Revised Code, or joint recreation district established under section 755.14 of the Revised Code.
(2) No registered wholesale distributor of dangerous drugs shall possess for sale, or sell, at wholesale, dangerous drugs to any of the following:
(a) A prescriber who is employed by a pain management clinic that is not licensed as a terminal distributor of dangerous drugs with a pain management clinic classification issued under section 4729.552 of the Revised Code;
(b) A business entity described in division (B)(1)(j) of this section that is, or is operating, a pain management clinic without a license as a terminal distributor of dangerous drugs with a pain management clinic classification issued under section 4729.552 of the Revised Code;
(c) A business entity described in division (B)(1)(k) of this section that is, or is operating, a pain management clinic without a license as a terminal distributor of dangerous drugs with a pain management clinic classification issued under section 4729.552 of the Revised Code.
(3) No registered wholesale distributor of dangerous drugs shall possess dangerous drugs for sale at wholesale, or sell such drugs at wholesale, to a licensed terminal distributor of dangerous drugs, except as follows:
(a) In the case of a terminal distributor with a category I license, only dangerous drugs described in category I, as defined in division (A)(1) of section 4729.54 of the Revised Code;
(b) In the case of a terminal distributor with a category II license, only dangerous drugs described in category I and category II, as defined in divisions (A)(1) and (2) of section 4729.54 of the Revised Code;
(c) In the case of a terminal distributor with a category III license, dangerous drugs described in category I, category II, and category III, as defined in divisions (A)(1), (2), and (3) of section 4729.54 of the Revised Code;
(d) In the case of a terminal distributor with a limited category I, II, or III license, only the dangerous drugs specified in the certificate furnished by the terminal distributor in accordance with section 4729.60 of the Revised Code.
(C)(1) Except as provided in division (C)(4) of this section, no person shall sell, at retail, dangerous drugs.
(2) Except as provided in division (C)(4) of this section, no person shall possess for sale, at retail, dangerous drugs.
(3) Except as provided in division (C)(4) of this section, no person shall possess dangerous drugs.
(4) Divisions (C)(1), (2), and (3) of this section do not apply to a registered wholesale distributor of dangerous drugs, a licensed terminal distributor of dangerous drugs, or a person who possesses, or possesses for sale or sells, at retail, a dangerous drug in accordance with Chapters 3719., 4715., 4723., 4725., 4729., 4730., 4731., and 4741. of the Revised Code.
Divisions (C)(1), (2), and (3) of this section do not apply to an individual who holds a current license, certificate, or registration issued under Title XLVII of the Revised Code and has been certified to conduct diabetes education by a national certifying body specified in rules adopted by the state board of pharmacy under section 4729.68 of the Revised Code, but only to the extent that the individual possesses insulin or personally supplies insulin solely for the purpose of diabetes education and only if diabetes education is within the individual’s scope of practice under statutes and rules regulating the individual’s profession.
Divisions (C)(1), (2), and (3) of this section do not apply to an individual who holds a valid certificate issued by a nationally recognized S.C.U.B.A. diving certifying organization approved by the state board of pharmacy in rule, but only to the extent that the individual possesses medical oxygen or personally supplies medical oxygen for the purpose of emergency care or treatment at the scene of a diving emergency.
Division (C)(3) of this section does not apply to the board of education of a city, local, exempted village, or joint vocational school district, a school building operated by a school district board of education, a chartered or nonchartered nonpublic school, a community school, a STEM school, or a college-preparatory boarding school for the purpose of possessing epinephrine autoinjectors under section 3313.7110, 3313.7111, 3314.143, 3326.28, or 3328.29 of the Revised Code.
Division (C)(3) of this section does not apply to a residential camp, as defined in section 2151.011 of the Revised Code, a child day camp, as defined in section 5104.01 of the Revised Code, or a child day camp operated by any county, township, municipal corporation, township park district created under section 511.18 of the Revised Code, park district created under section 1545.04 of the Revised Code, or joint recreation district established under section 755.14 of the Revised Code for the purpose of possessing epinephrine autoinjectors under section 5101.76 of the Revised Code.
(D) No licensed terminal distributor of dangerous drugs shall purchase for the purpose of resale dangerous drugs from any person other than a registered wholesale distributor of dangerous drugs, except as follows:
(1) A licensed terminal distributor of dangerous drugs may make occasional purchases of dangerous drugs for resale from a pharmacist who is a licensed terminal distributor of dangerous drugs or who is employed by a licensed terminal distributor of dangerous drugs;
(2) A licensed terminal distributor of dangerous drugs having more than one establishment or place may transfer or receive dangerous drugs from one establishment or place for which a license has been issued to the terminal distributor to another establishment or place for which a license has been issued to the terminal distributor if the license issued for each establishment or place is in effect at the time of the transfer or receipt.
(E) No licensed terminal distributor of dangerous drugs shall engage in the sale or other distribution of dangerous drugs at retail or maintain possession, custody, or control of dangerous drugs for any purpose other than the distributor’s personal use or consumption, at any establishment or place other than that or those described in the license issued by the state board of pharmacy to such terminal distributor.
(F) Nothing in this section shall be construed to interfere with the performance of official duties by any law enforcement official authorized by municipal, county, state, or federal law to collect samples of any drug, regardless of its nature or in whose possession it may be.
(G) Notwithstanding anything to the contrary in this section, the board of education of a city, local, exempted village, or joint vocational school district may deliver epinephrine autoinjectors to a school under its control for the purpose of possessing epinephrine autoinjectors under section 3313.7110 of the Revised Code.
Sec. 4729.60. (A) Before a registered wholesale distributor of dangerous drugs may sell dangerous drugs at wholesale to any person, other than the persons specified in divisions (B)(1)(a) to (d) and (B)(1), (f) to (h), (l), and (m) of section 4729.51 of the Revised Code, such wholesale distributor shall obtain from the purchaser and the purchaser shall furnish to the wholesale distributor a certificate indicating that the purchaser is a licensed terminal distributor of dangerous drugs. The certificate shall be in the form that the state board of pharmacy shall prescribe, and shall set forth the name of the licensee, the number of the license, a description of the place or establishment or each place or establishment for which the license was issued, the category of licensure, and, if the license is a limited category I, II, or III license, the dangerous drugs that the licensee is authorized to possess, have custody or control of, and distribute.
If no certificate is obtained or furnished before a sale is made, it shall be presumed that the sale of dangerous drugs by the wholesale distributor is in violation of division (B) of section 4729.51 of the Revised Code and the purchase of dangerous drugs by the purchaser is in violation of division (C) of section 4729.51 of the Revised Code. If a registered wholesale distributor of dangerous drugs obtains or is furnished a certificate from a terminal distributor of dangerous drugs and relies on the certificate in selling dangerous drugs at wholesale to the terminal distributor of dangerous drugs, the wholesale distributor of dangerous drugs shall be deemed not to have violated division (B) of section 4729.51 of the Revised Code in making the sale.
(B) Before a licensed terminal distributor of dangerous drugs may purchase dangerous drugs at wholesale, the terminal distributor shall obtain from the seller and the seller shall furnish to the terminal distributor the number of the seller’s registration certificate to engage in the sale of dangerous drugs at wholesale.
If no registration number is obtained or furnished before a purchase is made, it shall be presumed that the purchase of dangerous drugs by the terminal distributor is in violation of division (D) of section 4729.51 of the Revised Code and the sale of dangerous drugs by the seller is in violation of division (A) of section 4729.51 of the Revised Code. If a licensed terminal distributor of dangerous drugs obtains or is furnished a registration number from a wholesale distributor of dangerous drugs and relies on the registration number in purchasing dangerous drugs at wholesale from the wholesale distributor of dangerous drugs, the terminal distributor shall be deemed not to have violated division (D) of section 4729.51 of the Revised Code in making the purchase.
Sec. 5101.76. (A) A residential camp, as defined in section 2151.011 of the Revised Code, a child day camp, as defined in section 5104.01 of the Revised Code, or a child day camp operated by any county, township, municipal corporation, township park district created under section 511.18 of the Revised Code, park district created under section 1545.04 of the Revised Code, or joint recreation district established under section 755.14 of the Revised Code may procure epinephrine autoinjectors for use in emergency situations identified under division (C)(5) of this section. A camp that elects to procure epinephrine autoinjectors under this section is encouraged to maintain at least two epinephrine autoinjectors at all times.
(B) A camp that elects to procure epinephrine autoinjectors under this section shall adopt a policy governing their maintenance and use. Before adopting the policy, the camp shall consult with a licensed health professional authorized to prescribe drugs, as defined in section 4729.01 of the Revised Code.
(C) A component of a policy adopted by a camp under division (B) of this section shall be a prescriber-issued protocol specifying definitive orders for epinephrine autoinjectors and the dosages of epinephrine to be administered through them. The policy also shall do all of the following:
(1) Identify the one or more locations in which an epinephrine autoinjector must be stored;
(2) Specify the conditions under which an epinephrine autoinjector must be stored, replaced, and disposed;
(3) Specify the individuals employed by or under contract with the camp who may access and use an epinephrine autoinjector to provide a dosage of epinephrine to an individual in an emergency situation identified under division (C)(5) of this section;
(4) Specify any training that employees or contractors specified under division (C)(3) of this section must complete before being authorized to access and use an epinephrine autoinjector;
(5) Identify the emergency situations, including when an individual exhibits signs and symptoms of anaphylaxis, in which employees or contractors specified under division (C)(3) of this section may access and use an epinephrine autoinjector;
(6) Specify that assistance from an emergency medical service provider must be requested immediately after an epinephrine autoinjector is used;
(7) Specify the individuals to whom a dosage of epinephrine may be administered through an epinephrine autoinjector in an emergency situation specified under division (C)(5) of this section.
(D) A camp or camp employee or contractor is not liable in damages in a civil action for injury, death, or loss to person or property that allegedly arises from an act or omission associated with procuring, maintaining, accessing, or using an epinephrine autoinjector under this section, unless the act or omission constitutes willful or wanton misconduct.
This section does not eliminate, limit, or reduce any other immunity or defense that a camp or camp employee or contractor may be entitled to under Chapter 2744. or any other provision of the Revised Code or under the common law of this state.
(E) A camp may accept donations of epinephrine autoinjectors from a wholesale distributor of dangerous drugs, as defined in section 4729.01 of the Revised Code, and may accept donations of money from any person to purchase epinephrine autoinjectors.
(F) A camp that elects to procure epinephrine autoinjectors under this section shall report to the department of job and family services each procurement and occurrence in which an epinephrine autoinjector is used from a camp’s supply of epinephrine autoinjectors.
SECTION 2. That existing sections 3313.713, 3313.718, 4729.51, and 4729.60 of the Revised Code are hereby repealed.
Section 3. This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for such necessity is that allergic reactions can be life-threatening and Ohio schools and camps presently lack authorization to procure epinephrine autoinjectors to treat emergency anaphylaxis. Because anaphylaxis can lead to death or permanent damage within minutes, authorization to procure and timely administer epinephrine is critical. Therefore, this act shall go into immediate effect.
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ASTM standard I abstained on is a guaranteed lawsuit starter
Posted: October 15, 2014 Filed under: Uncategorized | Tags: American Society of Testing & Material, ASTM, Hangliding, Paragliding, Parasailing, Weather Leave a commentI’m hurt because you did not check the weather correctly!
So this is the new standard that I was asked to vote on recently.
Withdraw With Replacement to F2993-2013 Guide for Monitoring Weather Conditions for Safe Parasail Operation WK47376 PDF (8.0K)
(SEE VOLUME 15.7)(CONCURRENT WITH .6500)
TECHNICAL CONTACT: Matt Dvorak
daytonaparasailing@hotmail.com
(386) 547-6067
When I don’t fully understand the issues or have not seen the actual standard (yes it is a little crazy trying to read what you are voting on sometimes) I abstain. I did so on this standard also.
Besides voting against a standard requires you to articulate the reasons why you are voting no on the standard. “This is stupid,” is not a good reason according to the ASTM. Nor is “this is going to help plaintiff’s win lawsuits” a valid reason for voting no.
However, can’t you see this doing nothing but creating legal nightmares.
“You said you checked the weather, and you said to launch, but the wind changed because a front moved/truck came by/that is what the wind does, and I crashed. You owed me a duty to check the weather; that duty is in writing, and you agreed to it by becoming a member of the ASTM and agreeing to the standard (or not agreeing to the standard; you are still held to the standard), and my injuries are a result of you not following the standard.”
Duh
Somewhere, the ASTM, there is an idea that the creation of standards stops lawsuits, but even the ASTM can’t show any proof of that.
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Last Chance to get a Great Copy of Roads Were Not Built for Cars
Posted: October 14, 2014 Filed under: Cycling | Tags: Amazon, Amazon Kindle, Apple, EPUB, IBook, IPad, Kickstarter, PayPal Leave a comment
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Bradford Washington American Mountaineering Museum has several Great Films Scheduled this Fall
Posted: October 14, 2014 Filed under: Uncategorized | Tags: x, y, z Leave a comment
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A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiffs hope the three can be connected
Posted: October 13, 2014 Filed under: Cycling, Michigan | Tags: bicycle, Bicycle helmet, Breach of Warranty, Catlike Sport Components SL, Catlike USA, Consumer Product Safety Council, CPSC, Cycling, helmet, Monarch Velo Llc, The Kreb Cycle, Tracy Ann Jenish, warranty, Warranty of Fitness, Warranty of Fitness for a Particular Purpose Leave a commentPlaintiff crashed her bike suffering head injuries. Plaintiff was wearing a bicycle helmet that was subject to a recall, earlier. The plaintiff hoped her injury could be paid for by the helmet manufacturer using the recall as the influence with the jury.
State: Michigan
Plaintiff: Tracy Ann Jenish
Defendant: Monarch Velo Llc dba Catlike USA, a Texas Corporation, The Kreb Cycle, a New York Corporation, and Catlike Sport Components SL
Plaintiff Claims: negligence, gross negligence, and breach of warranty
Defendant Defenses:
Holding: for the defendant
Year: 2007
This is why recalls are such a problem. The recalls themselves are a nightmare for the outdoor recreation industry because the problems don’t fit in the Consumer Product Safety Council (CPSC) mold. The cost goes through the roof trying to comply with the requirements of the recall and deal with the resulting bad publicity.
The biggest problem is recalls immediately show up on the plaintiff attorney’s websites with the line Have you been hurt using/wearing this product “Call us.”
In this case, the plaintiff purchased a bicycle helmet from the defendant retailer. The bicycle helmet was subject to a recall prior to the plaintiff’s crash. The plaintiff exchanged the helmet for a newer one due to the recall, prior to her crash. The plaintiff fell while riding her bike suffering head and other injuries and sued.
The first defendant was a retailer in New York. The retailer purchased the helmet from a distributor in Texas. The distributor imported the helmet from the manufacturer, a Spanish corporation. All three, the manufacturer, distributor, and retailer were defendants to the litigation. All three were in the chain of sale from the manufacturer to the consumer.
The theory behind allowing suits against everyone involved in the litigation is anyone in the chain could have spotted the defect and prevented the consumer from purchasing a defective product. That was a great theory when wagon wheels were being sold. Everyone understood wagon wheels and could see a flaw or defect in a wagon wheel before the consumer purchased the wheel.
That general theory does not work any longer in software, computers or in this case a bike helmet. If you could understand the physics and engineering behind the creation of the helmet, you could not see the defects in many cases because the defects are covered by plastic.
The suit was filed in Michigan the home state of the plaintiff in the United States District Court for the Eastern District of Michigan, Southern Division. Federal courts are the courts in place to deal with litigation between parties from different states or of the US and another country. The federal courts are not subject to the issue of “hometowning” or deciding a case solely on the issue of where the parties live in the courts’ hometown.
The three defendants filed a motion for summary judgment, which was granted.
Federal District Court decisions are reported. Very few states report trial court decisions. However, this is different in the federal system, and we have an interesting case.
Analysis: making sense of the law based on these facts.
The plaintiff dismissed its negligence and gross negligence claims and proceeded with its breach of warranty claims prior to this motion. The plaintiff stated there was no express warranty claim, only a breach of implied warranty. Implied warranties are warranties that attach to any sale. They are not written down in the manual, they occur whenever there is a sale. Implied warranty of merchantability and implied warranty of fitness for a particular purpose are warranties that go with every sale and are the two main claims in lawsuits.
These warranties are not in writing and unless disclaimed, they go with any sale. The first, warranty of merchantability means the product meets the requirements of the industry where they are sold. The implied warranty of fitness for a particular purpose is a warranty that the promises made by the sellers will be met by the product. For more information on these warranties see The legal relationship created between Manufacturers and US consumers.
No specific warranty was mentioned in the decision other than the warranty of fitness and merchantability. There were also allegations that there was a breach of warranty under Michigan’s law, which may be the same or different from the warranties explained above.
The plaintiff’s case was based on the recall. The CPSC required a recall “poster” which was entered into evidence as proof of the recall and the defect. The plaintiff also had an expert who opined that the plaintiff’s head injury “directly related to the inadequacies of the Catlike Kompact bike helmet.”
No other evidence was introduced. The expert’s opinion was not specific and did not provide any cause for the injury or the failure of the helmet. The court held that because there was no analysis of the crash, speed, location of impact or details of the accident the expert’s opinion was of no value.
As discussed at oral argument, plaintiff has not brought forth any evidence of the reason the Catlike Kompact helmet failed impact testing. All that has been presented is a one-page press release from the CPSC, set forth above, including a statement that “[t]he helmets fail impact testing required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.” Without additional information from the CPSC or any other source, or the results of any independent testing, it is the opinion of the court that Dr. Kress’ statement that “[t]he severity of the head injury sustained by Ms. Jenish is a direct result of the inability of the Catlike Kompact to comply to the CPSC’s safety standards” can be nothing but inadmissible speculation.
Although warranty claims require very little evidence to prove, in this case, no evidence was presented that the court could rely upon to uphold the claims of the plaintiff. The court granted the three defendants’ motion and dismissed the case.
So Now What?
This case has little value in teaching about helmet crashes, and the liability issues involved in manufacturing helmets. What it does teach is the unintended consequence of dealing with a recall and the CPSC.
It is impossible, probably, nowadays to create a product that will never have a recall. However, that does not mean you should try. As important, if you are looking at a recall, make sure you fully understand the consequences and work with counsel to lessen the impacts of the recall on your company and the effects it may have.
You also must disclaim all warranties other than the warranties you want for your product. If the proper disclaimer had been part of the information going with the sale of the helmet then this case would not have gone this far.
It is common for many products in the outdoor recreation industry to be brought into the US without the proper warranties and disclaimers. Additionally, many times when translating a product manual the word warranty will be translated into the word guaranty in English, which creates even greater liability issues.
 Jim Moss |
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 manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Outdoor Recreation Insurance, Risk Management, and Law
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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2014 VeloSwap: Into Cycling you need to be there if you Need a deal or got deals to sell
Posted: October 10, 2014 Filed under: Cycling, Mountain Biking | Tags: bicycle, Bicycle Colorado, Colorado, Cycling, Denver, Ecovillage, x, y, z Leave a comment
MEDIA ADVISORY
Wheelin’ and Dealin’ at Cyclists’ Ultimate Bargain Hunt
· Subaru VeloSwap Denver returns to National Western Complex Sat., Oct 18
· 10,000 expected to buy, sell and swap bikes, gear, parts and accessories
· Find the best deals of the year as bike shops and more clear out inventory!
| What: | Inspired by the excitement of the USA Pro Cycling Challenge? Dreaming of a new set of wheels? Get ready to ride at the Subaru VeloSwap Denver, the ultimate bargain treasure hunt for cycling enthusiasts. A true celebration of all things cycling, the event features the opportunity to buy, sell and recycle new and used bicycles and equipment. Find the rarest parts and the best deals, while recycling your old gear! Veloswap.com |
| When: | Saturday, October 18, 20149:00am – 4:00pm |
| Where: | National Western Complex4655 Humboldt St. Denver, CO 80216 |
| Who: | · Almost 10,000 people are expected to attend· 300+ exhibitors will have the best deals cyclists will see all year
· Thousands start lining up outside as early as 6:00am to get the best deals |
| Tickets: |
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| More: |
· New!! – New Product Showcase; check out the new 2015 equipment and talk with company reps about the latest and greatest in the industry including Bianchi, Parlee, Focus, Pedego E-Bikes and more. · Participants are invited to attend unique and informative seminars from Natural Grocers and others and enter to win amazing raffle prizes. · The day will conclude with live music in the supplier area. |
 Green Guru will be there taking your old tubes and recycling them into new products. |
First Colorado Avalanche Information Center Forecast for the 2014-15 Season. Become a member and support this group
Posted: October 9, 2014 Filed under: Avalanche, Skiing / Snow Boarding | Tags: avalanche, Colorado, National Weather Service, October, Snow, Weather forecasting, x Leave a comment
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Strange, camp director/AMGA certified rock guide charged with endangering children, on climbing trip
Posted: October 8, 2014 Filed under: Climbing, Criminal Liability, Minors, Youth, Children, Ohio, Summer Camp | Tags: Abrasion (medical), Camp Otterbein, child endangerment criminal liability, Civil law (common law), civil liability, Hocking Hills, Hocking Hills Rock Climbing Rappelling, Ohio, Rappelling, Rock climbing, Scott G. Seese, Summer Camp, United Methodist Church, West Ohio Conference 2 CommentsObviously, there are some facts missing, this is really dumb, there is an overzealous prosecutor; someone in the family knows someone in county office or the plaintiff’s attorney pushed to have the county sheriff make their case for them.
It’s really sad to see an 11-year-old girl injured. It’s said to have a group of kids scared by the experience. However, there are some things about this that are confusing.
Here are the facts from the article. The defendant & defendant, first in a criminal case and second in a civil case was the camp director of a church summer camp; Camp Otterbein (an affiliate of West Ohio Conference of the United Methodist Church). The defendant took the kids to Hocking Hills Rock Climbing Rappelling to do something.
During the day either a female camper was lowered or rappelled into a hole. (I’m guessing it was a formation, why would you lower someone into a hole?) The rock formations are small and composed of long ago eroded water features. (I grew up in the area and have been there several times.) The article describes her as rappelling, however, when questioned the article states she said she was lowered in when she became stuck.
It is not clear what time she started her descent; however, she was not rescued until 1:30 AM. The girl suffers from compartment syndrome, which allegedly started to occur after she was discharged from the hospital.
The defendant allegedly created a substantial risk to the health or safety of a child, by violating a duty of care, protection, or support, which is the definition of child endangerment. (It’s a 10 page statute, so I’ll not post it. It is a good statute; however, it is also the statute used to hold adults criminally liable when a kid gets in trouble because the adult allowed or left the child in a position to get in trouble.)
The child suffered:
…she suffered injuries including redness and bruising around her thighs due to the harness; bruising and abrasions on the right side of her stomach; abrasions on her back from her neck to her buttocks; abrasions on her right shoulder; bruising in her armpits; and lacerations between her legs where the harness was holding her.
I highlighted the injuries that would come whether you were trapped or not wearing a harness. The severity of those types of injuries might be increased based upon the length of time in the harness. However, if she was wedged, then she might not have had any weight on the harness. Also the injuries under her armpits suggest she was wearing a full body harness, but that is only speculation.
There were two things that did get my attention in the article. The girl admitted to investigators that she had volunteered to go down the hole, and no one had forced her to do so.
The second was that the mother told park rangers that she was going to find an attorney. (My kids stuck in a hole, but I’m going to find an attorney…..)
The defendant camp director was a certified “instructor” through the AMGA.
I’m trying to get more information about this accident/incident. Not much will be forth coming until after a plea bargain or criminal trial and then only what is in the criminal files. The civil case will take longer.
What a mess.
The article is: Camp director charged with endangering children
Please read the article, you might see things differently. Thanks to D. Twilley for sending me the link.
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Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)
Posted: October 7, 2014 Filed under: Cycling, Legal Case, Michigan | Tags: bicycle, Bicycle helmet, Breach of Warranty, Catlike Sport Components SL, Catlike USA, Consumer Product Safety Council, CPSC, Cycling, helmet, Monarch Velo Llc, The Kreb Cycle, Tracy Ann Jenish, warranty, Warranty of Fitness, Warranty of Fitness for a Particular Purpose Leave a commentTo Read an Analysis of this decision see: A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiffs hope the three can be connected
Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)
Tracy Ann Jenish, Plaintiff, vs. Monarch Velo Llc dba Catlike USA, a Texas Corporation, The Kreb Cycle, a New York Corporation, and Catlike Sport Components SL, a Spanish Corporation, Defendants.
Case No. 05-CV-73648
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754
May 9, 2007, Decided
May 9, 2007, Filed
CORE TERMS: helmet, catlike, bicycle, safety standard, summary judgment, head injuries, consumer, warranty, material fact, brain, acceleration, testing, seller, bike, Bicycle Helmets Final Rule, entitled to judgment, traumatic, hematoma, usa, Consumer Product Safety Act, matter of law, genuine issue, implied warranty, proximate cause, manufactured, manufacturer, distributor, attenuation, deposition, violating
COUNSEL: [*1] For Tracy Ann Jenish, Plaintiff: Lawrence S. Katkowsky, LEAD ATTORNEY, Lawrence S. Katkowsky Assoc., Bingham Farms, MI.
For Kreb Cycle, Defendant: Matthew A. Brauer, LEAD ATTORNEY, Rutledge, Manion, (Detroit), Detroit, MI.
JUDGES: GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE.
OPINION BY: GEORGE CARAM STEEH
OPINION
OPINION AND ORDER GRANTING DEFENDANT THE KREB CYCLE’S MOTION FOR SUMMARY JUDGMENT (DOCUMENT # 38)
INTRODUCTION
Before the court in this product liability lawsuit is a motion for summary judgment brought by defendant The Kreb Cycle, a New York seller of bicycle equipment, in which it asserts it is entitled to judgment on all counts in the complaint. 1 Because the court agrees that plaintiff has not raised a question of material fact as to causation of her injuries by an allegedly defective bicycle helmet, defendant’s motion is granted as set forth below.
1 The other defendants to this action have not filed answers to the complaint.
BACKGROUND
Plaintiff Tracy Jenish was riding with a bicycling [*2] club on Wing Lake Road in the area of Bloomfield Hills, Michigan on September 26, 2002, when she fell off her bike and suffered serious bodily injuries, including injuries to her head. She was wearing a helmet called a “Catlike Kompact,” manufactured by defendant Catlike Sport Components SL, a Spanish corporation, distributed by defendant Monarch Velo LLC, a Texas corporation 2, and sold to the plaintiff by movant-defendant Kreb Cycle, a New York corporation.
2 Answers to the complaint by the remaining defendants have not been filed, and defendant Kreb Cycle states in its motion that the other defendants are in default. The docket reflects that a clerk’s entry of default was filed as to defendant Monarch Velo, L.L.C. on June 2, 2006.
The Kreb Cycle (hereinafter “defendant”) started carrying these helmets after its owner attended a trade show in Las Vegas, where a model of the Catlike Kompact helmet was on display. Defendant ordered the helmets from Monarch Velo LLC, d/b/a “Catlike USA,” a Texas distributor. [*3] The helmets came with the manufacturer’s label stating they complied with U.S. Consumer Product Safety Commission (“CPSC”) standards. Although there are no records of the sale, defendant does not dispute that it sold the helmet to plaintiff. Plaintiff’s recollection, according to her deposition, is that she called in with a credit card or ordered it online, at some point during the year preceding the accident.
In 2003, some months after plaintiff’s accident, the Catlike Kompact helmet was the subject of a voluntary manufacturer recall. Defendant has produced a copy of the CPSC’s announcement of this recall, which is reproduced below in its entirety, with the exception of the generic CPSC headings and contact numbers:
*****
CPSC, Monarch Velo, LLC doing business as Catlike USA Announce Recall of Bike Helmets
Washington, D.C. — The U.S. Consumer Product Safety Commission announces the following recall in voluntary cooperation with the firm below. Consumers should stop using recalled products immediately unless otherwise instructed.
Name of product: Catlike Kompact TM Bike Helmets
Units: 2,250
Distributor: Monarch Velo, LLC, doing business [*4] as Catlike USA, of Houston, Texas
Hazard: The helmets fail impact testing required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.
Incidents/Injuries: None reported.
Description: This recall involves Catlike Kompact TM adult bicycle helmets. The helmets were sold in two sizes (small/medium and large/extra large) and various colors. The sizing label inside the helmets reads “Kompact” and “SM/MD” or “LG/XL.”
Sold at: Bicycle shops nationwide sold the helmets from March 2002 through February 2003 for about $ 130.
Manufactured in: Spain
Remedy: Contact Monarch Velo for information on receiving a free replacement helmet.
Consumer Contact: Contact Monarch Velo toll-free at (877) 228-5646 between 9 a.m. and 5 p.m. CT Monday through Friday or visit the firm’s web site at http://www.catlike-usa.com
Media Contact: Chris Watson at (877) 228-5646.
Exhibit D to Defendant’s Motion. Plaintiff obtained a replacement Catlike helmet after announcement of the recall.
This action was filed in federal court on the basis of diversity of citizenship in September 2005. [*5] Plaintiff’s First Amended Complaint, filed September 29, 2005, makes a common claim against all three defendants, asserting negligence, gross negligence, and breach of warranty in the design, manufacture, and distribution of an unmerchantable, “untested” bicycle helmet that failed to protect against injury to the head.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment “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.” See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court’s use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
The [*6] standard for determining whether summary judgment is appropriate is “‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The evidence and all reasonable inferences therefrom must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). [*7]
If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with “specific facts showing that there is a genuine issue for trial.” First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant’s pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).
ANALYSIS
Kreb Cycle asserts in its motion that it is entitled to judgment as to all three of plaintiff’s claims: negligence, gross negligence, and breach of warranty. In response, plaintiff asserts it is “only relying on the implied warranty of fitness and merchantability as to this Defendant and will not, therefore, respond to [*8] Defendant’s arguments as to negligence and gross negligence.” Accordingly, judgment is hereby granted for Kreb Cycle as to plaintiff’s negligence and gross negligence claims.
The sole claim remaining as to this defendant is plaintiff’s breach of warranty claim. Plaintiff concedes defendant made no express warranty regarding this helmet. Accordingly, proceeding on a cause of action for breach of an implied warranty, plaintiff asserts that she has established a prima facie case of breach of implied warranty under Michigan law, 3 citing to this court’s case of Konstantinov v. Findlay Ford Lincoln Mercury, 2006 U.S. Dist. LEXIS 85836, 2006 WL 3299487. As set forth in that case, under the Michigan Tort Reform Act, effective in 1996,
(6) In a product liability action, a seller other than a manufacturer is not liable for harm allegedly caused by the product unless either of the following is true:
(a) The seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person’s injuries.
(b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the [*9] failure to conform to the warranty was a proximate cause of the person’s harm.
Mich. Comp. Laws Ann. § 600.2947(6).
3 Although the retailer was a New York seller, neither party asserts applicable law other than that of Michigan.
Defendant’s argument for summary judgment on this claim is that plaintiff has not come forward with any evidence of a specific defect in the helmet, and has not drawn any kind of causal connection between the alleged defect and her head injuries. It cites to Mascarenas v. Union Carbide, 196 Mich. App. 240, 249, 492 N.W.2d 512 (1992) for the elements of a product liability case under Michigan law: proof that the defendant supplied a defective product, and that the defect proximately caused the plaintiff’s injury. Defendant argues that plaintiff relies only on the helmet’s later recall, disclosed in a 5/22/03 CPSC press release (stating that the recall was occurring “in voluntary cooperation with” the U.S. distributor) and conclusory statements [*10] by an expert, neither of which establish a question of material fact as to proximate cause. 4
4 Defendant also addresses plaintiff’s weak assertion, in answers to interrogatories, that defendant “had a duty to determine whether the model helmet in question did in fact meet CPSC standards.” As defendant argues, there is no such duty required by Mich. Comp. Laws Ann. § 600.2947(6), set forth above.
The court agrees with the defendant. Although precedent such as Mills v. Curioni, Inc., 238 F. Supp. 2d 876, 886 (E.D. Mich. 2002) and the very recent decision in Coleman v. Maxwell Shoe Co., 475 F. Supp. 2d 685, 2007 U.S. Dist. LEXIS 11513, 2007 WL 551608 (E.D. Mich. 2007) lend support to defendant’s argument concerning non-manufacturing sellers and the need for a showing of negligence in failing to detect a product’s defect, this case must be dismissed whether or not such evidence is required.
Plaintiff’s expert’s initial report, created by Tyler A. Kress, Ph.D. in Knoxville, Tennessee, dated [*11] October 6, 2006, summarily lists plaintiff’s injuries following the accident. It then lists all of the expert’s qualifications, his fees, and the records he reviewed. These are a 9/26/2002 CT scan of plaintiff’s head; the hospital’s discharge summary; a letter of April 3, 2003 by a Jon Wardner, M.D. stating plaintiff’s disability; the CPSC announcement of the helmet recall; and the plaintiff’s deposition. Dr. Kress also states that he met with the plaintiff. The remainder (and the entire substance) of his letter/report stated only a conclusion that a “defect” of the helmet was “directly related to the inadequacies of the Catlike Kompact bike helmet.”
Defendant then brought a motion, granted by the magistrate, for sanctions and to require a supplemental report by November 15, 2006, containing a “complete statement of all opinions to be expressed and the basis and reasons therefor…” A supplemental report was subsequently created by Dr. Kress. That report, dated November 15, 2006, is set forth below in its entirety:
Dear Mr. Katkowsky:
This is to supplement my report of October 6, 2006, regarding the above-styled cause.
1) Use: It is my opinion that it is foreseeable [*12] that some consumers will sustain a preventable head injury due to the impact performance (or lack thereof) of the helmet while using it in an appropriate manner as it is intended to be used.
Protective head gear and bicycle helmets have the ability to eliminate or greatly reduce traumatic head and brain injury when properly designed an manufactured. To ensure that bicycle helmets available in the consumer market adequately serve these goals, the Consumer Product Safety Commission has created safety standards for a range of criterion, including impact attenuation (CPSC’s Safety Standard for Bicycle Helmets Final Rule: 16 CFR Part 1203).
Bicycle helmets that have adequate impact attenuation performance, as set forth by the CPSC’s safety standards, and are used in an appropriate, reasonable, and correct manner are highly successful in preventing or greatly reducing traumatic head and brain injury. As found in a 1989 study by Thompson et al and explicitly cited in the CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203, pg. 11713), riders with helmets had an 85% reduction in head injury risk, and 88% reduction in brain injury risk.
2) Reason for Injury: [*13] Ms. Jenish’s head injury is directly related to the inadequacies of the Catlike Kompact bike helmet.
The CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203) explicitly establishes a performance test to “ensure that helmets will adequately protect the head in a collision” (pg. 11714). As a component of this performance test, helmets are required to not exceed a peak headform acceleration of 300 g for any impact. This pass/fail criterion of 300g or below is consistent with other standards such as the ANSI, Snell, and ASTM (CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203, pg. 11714; Halstead 2001). The Catlike Kompact bike helmet is inadequate due to the fact that it failed impact standards that pertain to the design and performance of the helmet in a foreseeable use that may result in an impact to the head.
In the accident on September 26, 2002, Ms. Jenish hit a curb while riding her bicycle, was ejected, and impacted her head. She reported a loss of consciousness at the scene, and her relevant injuries include, but are not limited to, a traumatic brain injury and a subdural hematoma. Ms. Jenish sustained a direct impact to the back [*14] of the head (occipital region) which corresponds to a right occipatal scalp hematoma and the area of impact and failure seen in the helmet. Contact head impacts, such as this, result in predominantly linear acceleration of the head and brain, with small components of angular acceleration. Linear acceleration can product focal brain injuries, such as subdural hematomas, as well as concussions; as seen in Ms. Jenish.
The severity of the head injury sustained by Ms. Jenish is a direct result of the inability of the Catlike Kompact to comply to the CPSC’s safety standards. Subdural hematomas, similar to the one sustained by Ms. Jenish, are commonly caused by an impact to the occipital region (Kleiven 2003, Zhou et al 1995). The acceleration of the head in an occipital impact exceeded the values of what a reasonably designed and protective headgear would have given the wearer. Due to the failure of the Catlike Kompact bicycle helmet to comply to the CPSC’s impact safety standards Ms. Jenish’s head experienced higher acceleration values resulting in a more serious traumatic brain injury than would have been experienced if the helmet was compliant with the impact standards of the CPSC. [*15]
3) Design Defect: The helmet is inherently dangerous and defective by design in that it fails to comply with impact testing standards required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.
The impact attenuation standards of the CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203) was created in order to “ensure that helmets will adequately protect the head in a collision” (p. 11714). Failure to meet this standard endangers consumers by failing to prevent or reduce injury.
If you have any questions or need anything further please do not hesitate to contact me.
Sincerely,
/s/
Tyler Kress, Ph.D., CIE
Exhibit I to Defendant’s Motion and Exhibit 2 to Plaintiff’s Response.
Defendant contends that all this report arguably establishes is that the helmet failed to “meet standards;” and that plaintiff has failed to connect that alleged, undefined defect to her injuries. As defendant asserts, there is no evaluation of items such as plaintiff’s speed at the time of the crash, location of impact, descriptive information concerning the object struck or other details of the accident. Defendant [*16] points to the serious injuries sustained by the plaintiff in the crash, including fractured vertebrae, a crushed rib cage, fractured collarbone, bulging spinal discs, and a collapsed lung, and asserts that helmets don’t rule out any and all head injuries, in any crash or at any speed, but serve to help protect against head injuries. Plaintiff has not identified the manufacturing or design elements of the helmet that led to voluntary recall nor has accident reconstruction tied these elements to the plaintiff’s injuries.
As discussed at oral argument, plaintiff has not brought forth any evidence of the reason the Catlike Kompact helmet failed impact testing. 5 All that has been presented is a one page press release from the CPSC, set forth above, including a statement that “[t]he helmets fail impact testing required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.” Without additional information from the CPSC or any other source, or the results of any independent testing, it is the opinion of the court that Dr. Kress’ statement that “[t]he severity of the head injury sustained by Ms. Jenish is a direct result of the inability [*17] of the Catlike Kompact to comply to the CPSC’s safety standards” can be nothing but inadmissible speculation. Accordingly, it is the court’s determination that plaintiff has not produced evidence to raise a question of material fact regarding causation. Defendant’s motion will be granted.
5 Plaintiff has failed to identify any specific claimed defect, such as deficiencies in the suspension or cushioning system, hardness or thickness of the plastic, ventilation engineering, overall shape, the strapping mechanism, or any other particular aspects of the helmets in general, much less the helmet worn by plaintiff. Without knowing the defect that motivated a voluntary recall, and without testing of the helmet worn by plaintiff, it is impossible to conclude that a defect caused her injury.
CONCLUSION
Because plaintiff has failed to raise a question of material fact as to the proximate causation of her head injuries by an alleged defect in her bicycle helmet, summary judgment will enter as to all claims brought [*18] by the plaintiff against this defendant.
IT IS SO ORDERED.
Dated: May 9, 2007
S/ George Caram Steeh
UNITED STATES DISTRICT JUDGE
G-YQ06K3L262
Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247
Posted: October 7, 2014 Filed under: Assumption of the Risk, California, Hawaii, Legal Case | Tags: #Cruise, Ana Maria Andia, Arnott's Lodge and Hike Adventures, assumption of the risk, Celebrity Cruises, Cruise ship, Duty of care, Duty to Warn, Excursion, Full Service Travel, Hiking, Inc., Lava, Lava Field, M.D., Matthew Marsh, Nature's Classroom, Ohio, Primary Assumption of the Risk, San Diego, Summary judgment, Volcano, Volcanoes National Park Leave a commentTo Read an Analysis of this decision see: The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247
Ana Maria Andia, M.D., Plaintiff, vs. Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures, a Hawaiian business of unknown structure, Defendants.
CASE NO. 06cv0437 WQH (JMA)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2007 U.S. Dist. LEXIS 88247
November 29, 2007, Decided
November 29, 2007, Filed
CORE TERMS: hike, lava, station, terrain, falling, rock, summary judgment, hiking, slipping, uneven, duty of care, assumption of risk, cruise, inherent risk, trail, ship, warn, surface, viewing, passenger, excursion, admits, hiker, duty to warn, failure to warn, negating, minutes, causes of action, totally outside, gross negligence
COUNSEL: [*1] For Ana Maria Andia, an individual, Plaintiff: Harold M Hewell, LEAD ATTORNEY, Hewell Law Firm APC, San Diego, CA; Howard M Rubinstein, LEAD ATTORNEY, Law Offices of Howard Rubinstein, Aspen, CO.
For Celebrity Cruises Inc, a foreign corporation, Arnotts Lodge and Hike Adventures, a Hawaiian business of unknown structure Defendants: Gregory Dean Hagen, Tammara N Tukloff, LEAD ATTORNEYS, Drath Clifford Murphy and Hagen, San Diego, CA.
JUDGES: WILLIAM Q. HAYES, United States District Judge.
OPINION BY: WILLIAM Q. HAYES
OPINION
ORDER
HAYES, Judge:
The matter before the Court is Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures. (Doc. # 40).
Background
Defendant Celebrity Cruises, Inc. (“Celebrity”) is engaged in the business of providing passenger cruises to various destinations. 1 UMF 1. Arnott’s Lodge and Hike Adventures (“Arnott’s”) guides transport cruise ship passengers to Volcanoes National Park (“the Park”), and provide knowledge about where the lava flow is each day. UMF 3. In order to view the active lava flow, individuals must hike over cooled lava. This terrain is rugged and natural, consisting of uneven surfaces. Id. at 4; DMF 4. The Hawaii Volcanoes [*2] National Park Rangers (“Rangers”) place reflective markers and cones on the lava to be used by hikers as reference points. UMF 7.
1 The parties each submitted a statement of facts with their submissions in support of and in opposition to the Motion for Summary Judgment. The Court relies upon the facts from Defendants’ Alleged Undisputed Material Facts (“UMF”), which are undisputed by Plaintiff and supported by the cited evidence, and the facts from Plaintiff s Disputed Material Facts (“DMF”), which are undisputed by Defendants and supported by the cited evidence.
In November, 2005, Plaintiff Ana Maria Andia, M.D. was a passenger on Defendant Celebrity Cruises, Inc.’s (“Celebrity”) passenger cruise ship. Plaintiff is an experienced hiker. Andia Depo, 35: 23-25. On November 27, 2005, Plaintiff signed up to participate in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike, guided by Arnott’s. UMF 8. On November 27, 2005, there was total visibility for many miles in every direction. Id. at 5.
Prior to beginning the hike, Plaintiff read the description of the hike that states: “This tour involves approximately two to six miles of hiking over very sharp and uneven surfaces.” [*3] Id. at 10. Plaintiff also read, understood and executed the “Lava Hike Participant, Release and Acknowledgment of Risk” (“Agreement”), which provides, in relevant part:
I agree not to hold Arnott’s liable for any accident or injury beyond its control. The hike to the Lava is conducted at a brisk pace and requires physically fit participants in good health who can readily hike on varied surfaces and elevation changes for extended periods. I, as a participant, acknowledge that I am taking this activity of my own free will and that I will not hold Arnott’s responsible for any injury incurred while . . . I am hiking on the paved or natural surfaces of the National Park. . . . I understand by reading this waiver that Arnott’s guides will provide only broad direction and safety guidelines and that I remain responsible for the actual path hiked and whether I choose to take the risks with possibly still hot Lava Flows.
Id. at 11. Plaintiff also received and read a document entitled “Arnotts Adventures proudly presents: The Kilauea Lava Hike Adventure” (“Brochure”), which informed Plaintiff that she may need to turn around and head back to the Rangers station alone, and that she did not need [*4] a trail to return safely. Id. at 14.
Prior to beginning the hike, Arnott’s informed Plaintiff that the lava flow had changed and that the hike was going to be longer than anticipated for that day. Id. at 13. Arnott’s also informed all participants in the hike, including Plaintiff, that they had the option of staying at the Rangers station and not going on the hike, and that there would be four decision points during the hike at which hikers could turn around and head back to the Rangers station. Id. at 13, 18.
Prior to beginning the hike, Plaintiff understood that the marked trail was merely a preferred route, and that the trail was not necessary to safely return to the Rangers station. UMF 15; Andia Depo, 63:1-15. Plaintiff also understood that guides would not stay with her during the hike and that she might be returning to the Rangers station unaccompanied. UMF 15, 16; Andia Depo, 63: 1-15, 64:22-24. Plaintiff understood that the hike would be difficult and strenuous. Andia Depo, 52: 17-19
For the first 30 minutes of the hike, and through the first two decision points, the hike proceeded on paved surfaces. UMF 20. During this period, Plaintiff recalls seeing reflective tabs on the [*5] paved surface. Id. Plaintiff’s companion recalls seeing reflective tabs stuck to the rocks for 10-15 minutes of the hike after leaving the paved road. Plaintiff does not recall whether or not the reflective tabs were stuck to the rocks. Id. at 21. Approximately 45 minutes into the hike, and after approximately 15 minutes of walking on unpaved terrain, Plaintiff decided to return, unaccompanied by a guide, to the Rangers station. Id. at 22. About 15 minutes into her return, Plaintiff slipped on one of the rocks. When Plaintiff slipped, she twisted her ankle. Plaintiff then lifted her foot up, and hit the top of her foot on the lava rock. As a result of these events, Plaintiff fractured her foot. Id. at 23. Plaintiff testified that she then proceeded back to the Rangers station. Andia Depo, 86:22-87:14. The fall itself could have caused the fracture to become displaced and surgery may have been required regardless of whether Plaintiff attempted to walk out of the lava fields. UMF 25. Plaintiff was given the option of going to the ship’s doctor or the Hilo emergency room for treatment, and Plaintiff elected to receive treatment with the ship’s doctor. Id. at 24; Andia Depo, 89:15-25; [*6] 90:1-10. Plaintiff testified that, as a result of the fracture, she was confined to a wheel chair for a period of months, had to take time off of work, and suffers impaired balance. Id. 15:13-14.
On February 24, 2006, Plaintiff filed the First Amendment Complaint (“FAC”) against Defendants Full Service Travel, 2 Celebrity and Arnott’s. (Doc. # 3). The FAC alleges causes of action against Arnott’s for (1) negligence, on grounds that Arnott’s breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Arnott’s failed to warn Plaintiff of the known dangers and risks associated with the lava hike. The FAC alleges causes of action against Celebrity for (1) negligence, on grounds that Celebrity breached its duty of care to Plaintiff by failing to to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that Celebrity failed to warn Plaintiff of the dangers and risks associated with the lava hike.
2 On October 5, 2006, Defendant Full Service Travel was dismissed from the case, with prejudice.
On August 18, 2007, Defendants filed the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. [*7] Defendants claim they are entitled to judgment as a matter of law because (1) Arnott’s owed Plaintiff no duty to protect Plaintiff against the assumed risk of slipping and falling on the lava rock, (2) Arnott’s owed Plaintiff no duty to warn Plaintiff of the obvious risk of injury of slipping and falling on the lava rock, (3) Celebrity did not owe Plaintiff a duty to warn of the obvious risk of slipping and falling on lava rock, (4) the alleged negligence of Defendants did not cause Plaintiff’s injuries, and (5) the claim for punitive damages against Arnott’s is not warranted. After receiving evidence and briefing from the parties, the Court heard oral argument on November 9, 2007.
Standard of Review
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material [*8] fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).
In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.
Choice of Law
The Court has jurisdiction over this action through diversity of citizenship, 28 U.S.C. section 1331. Federal courts exercising diversity jurisdiction must [*9] apply the substantive law of the state in which they are located, except on matters governed by the United States Constitution or federal statutes, or on procedural issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Complaint alleges causes of action in negligence for breach of due care and for failure to warn. The elements of the tort of negligence are essentially identical under California and Hawaii law. See White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (USDC Haw. 2006); Ladd v. County of San Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309, 911 P.2d 496 (1996). Furthermore, the doctrine of primary assumption of risk is a measure of a defendant’s duty of care, and is essentially identical under both Hawaii and California law. Yoneda v. Andrew Tom, 110 Haw. 367, 379, 133 P.3d 796 (2006); Knight v. Jewett, 3 Cal. 4th 296, 314-15, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992).
Discussion
I. Plaintiff’s Claims Against Arnott’s
Arnott’s contends that the risk of slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking. Arnott’s contends that without this risk, the means of viewing this natural phenomenon would be severely limited to the general public. Arnott’s also contends that the evidence is uncontroverted that [*10] Arnott’s provided Plaintiff with written disclosures concerning the condition of the terrain, that guides would only give broad direction on the actual hike, that Plaintiff may need to turn around and head to the Rangers station alone, and that Plaintiff did not need a trail to return safely. Arnott’s contends that there is no triable issue of fact as to whether Arnott’s is liable for breach of its duty of care because the doctrine of primary assumption of risk applies, negating any duty of Arnott’s to protect Plaintiff against the inherent risk of slipping and falling while lava hiking. Arnott’s contends that Plaintiff has failed to assert facts or introduce any evidence that demonstrates that the conduct of Arnott’s was totally outside the range of ordinary activity or that the conduct of Arnott’s increased Plaintiff’s risk of slipping and falling on the lava rock. Arnott’s also contends that there is no triable issue of fact as to whether Arnott’s is liable to Plaintiff for breach of the duty of Arnott’s to warn because the risk of slipping and falling on the natural terrain was equally obvious to Plaintiff and Arnott’s.
Plaintiff responds that the conduct of Arnott’s constituted [*11] gross negligence for the following reasons: Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn Plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure Plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring Plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided Plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day [*12] of her cruise vacation. 3
3 Plaintiff does not dispute that the doctrine of primary assumption of risk applies, negating Arnott’s’ duty to prevent Plaintiff from slipping and falling on lava rock. Instead, Plaintiff relies solely on her contention that the Agreement itself is either an unenforceable exculpatory agreement or an unenforceable contract of adhesion. Defendants, however, do “not contend, nor have they even asserted, that the [Agreement] relieves them from liability for any alleged negligence, nor gross negligence.” Reply, p. 1-2.
A. Duty of Care
As a general rule, persons have a duty to use due care and avoid injury to others, and may be held liable if their careless conduct injures another person. Cal. Civ. Code § 1714. The doctrine of primary assumption of the risk is an exception to this general rule. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 315. Whether the doctrine of assumption of risk applies, thereby negating a duty of care, turns on [*13] the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Id. at 309. In reviewing the nature of the activity, the doctrine of primary assumption of risk applies where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. Id. at 315. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995).
If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity. Saville v. Sierra College, 133 Cal. App. 4th 857, 866, 36 Cal. Rptr. 3d 515 (4th Dist. 2005); Kane v. National Ski Patrol, 88 Cal. App. 4th 204, 209, 105 Cal. Rptr. 2d 600 (4th Dist. 2001). The relationship between an instructor and student is instructive [*14] on the issue of whether the Arnott’s guides engaged in reckless conduct or increased the inherent risk involved in lava hiking. Kane, for example, involved candidates for a voluntary ski patrol who participated in a skills clinic instructed by Larry Stone, a National Ski Patrol System (“NSPS”) instructor. 88 Cal. App. 4th at 207. Stone led the clinic participants to the most difficult terrain at the resort. When the participants were reluctant to proceed through a portion of the trail, which was icy and spotted with trees, rocks and stumps, Stone asked the clinic participants what they would do “if there was a skier over the side?” Id. at 208. Although both plaintiffs felt uncomfortable with continuing down the terrain, they carried on, following Stone’s direction. Id. One plaintiff ultimately caught an “edge” with his ski, causing him to fall to his death, and the other plaintiff fell and suffered a broken leg. Id. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of risk applied, negating the defendant’s duty of care. The court reasoned that “an instructor’s assessment errors – either in making the necessarily subjective [*15] judgment of skill level or the equally subjective judgment about the difficulty of the conditions – are in no way ‘outside the range of the ordinary activity involved in the sport.” Id. at 214.
Plaintiff admits that she is an experienced hiker. Andia Depo, 35:23-25. Plaintiff admits that falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain. Id. at 153:8-14. Plaintiff admits that prior to starting the hike she was aware that she would be hiking over “very sharp and uneven surfaces.” Id. at 51:8-13. Plaintiff does not introduce any evidence to refute that hiking across uneven and challenging natural terrain is an inherent risk of hiking to active lava flow, without which the general public would be substantially deprived of viewing this natural phenomenon. The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent Plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.
Plaintiff admits that, prior to the hike, Arnott’s provided the following written disclosures, which she understood: that the natural terrain was uneven and challenging; that [*16] during the hike she would be responsible for the path she traveled; that the guides would give only broad direction; that she may have to return to the Rangers station alone; and that the trail was merely a preferred route, and not necessary to safely get back to the Rangers station. Despite these disclosures, Plaintiff asserts that the decision to allow Plaintiff to return to the Rangers station alone and subsequent conduct on the part of the Arnott’s guides constituted gross negligence. The Court finds that the decision to allow Plaintiff to return alone and subsequent conduct on the part of Arnott’s guides at most constituted “assessment errors,” but these “subjective judgment[s] about the difficulty of the condition[s],” were “in no way so reckless as to be totally outside the range of the ordinary activity involved” in the activity of lava hiking. See Kane, 88 Cal. App. 4th at 214. Plaintiff emphasizes that Arnott’s’ conduct, such as permitting her to participate in the hike wearing sneakers instead of hiking boots, was grossly negligent. However, the Court finds that there is no evidence in the record to support Plaintiff’s conclusion that Arnott’s conduct, including permitting [*17] Plaintiff to wear improper footwear, hike over thin lava crust, return to the Rangers station alone and without sufficient water, or return to the ship instead of going to the Hilo emergency room, increased the risk of Plaintiff’s injury. The Court concludes that there is no triable issue of fact as to whether Arnott’s conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of lava hiking.
The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for breach of duty of care.
B. Duty to Warn
“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Marshall v. United Airlines, 35 Cal. App. 3d 84, 90, 110 Cal. Rptr. 416 (1973).
Plaintiff admits she is an experienced hiker, that she was aware that falling is always a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover during the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the possibility that Plaintiff would [*18] have to return to the Rangers station alone and nature of the terrain. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer any evidence to demonstrate that the risk of slipping and falling on lava rock was any less obvious to Plaintiff than it was to Arnott’s. The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for failure to warn.
II. Plaintiff’s Claims Against Celebrity
Celebrity contends that although Plaintiff alleges separate causes of action in negligence for breach of due care and for failure to warn, both of these claims allege only failure to warn. Celebrity contends that it had no duty to warn Plaintiff of the risk of slipping and falling on lava rock during a hike through a lava field because the risk was patently obvious and equally apparent to Plaintiff and Celebrity.
Plaintiff’s Response in Opposition to the Motion for Summary Judgment on all of Plaintiff’s claims against Celebrity states in full:
[P]laintiff relied on Celebrity to provide her with reasonably safe shore excursions. The dangers of the lava hike with Arnott’s were not readily apparent to her or anyone else who had not [*19] taken the hike. Celebrity’s reliance on Deroche is misplaced.
This was not a scooter ride, which a reasonable person knows poses obvious dangers. It was a hike to a uniquely dangerous place. [Plaintiff] reasonably relied on Celebrity to exercise due care in providing her with a safe guide service, and in offering a potentially life-threatening venture. Celebrity had a duty to ensure that Arnott’ s was a reasonable safe and reliable service. Celebrity is liable for breach of that duty.
Opposition, p. 19-20.
A. Duty of Care
The duty of care of the owner of an excursion ship is a matter of federal maritime law. DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. App. 4th 802, 807, 46 Cal. Rptr. 2d 468 (1994). “That duty is to exercise reasonable care under the circumstances.” Id. at 807-8.
Plaintiff fails to introduce any evidence to support her claim that Celebrity did not exercise due care when it enrolled Plaintiff in “excursion HL 15, the Kilauea Lava Viewing Hike, an unreasonably dangerous and poorly run and operated excursion.” See FAC, P 35-36. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed introduce any evidence demonstrating Celebrity breached its duty [*20] of due care to Plaintiff. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for breach of duty of care.
B. Duty to Warn
“[I]t is generally accepted that where a carrier . . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” DeRoche, 31 Cal. App. 4th at 809. However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.” Id. at 810.
As previously discussed, Plaintiff admits she is an experienced hiker, that she was aware that falling is a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover for the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the challenging nature of the terrain and the possibility that Plaintiff would have to return to the Rangers station alone. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed offer any evidence that demonstrates the risk of falling [*21] on lava rock was any less obvious to her than it was to Celebrity. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for failure to warn.
Conclusion
Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures (Doc. # 40) is GRANTED. The Court directs the Clerk of the Court to enter JUDGMENT for Defendants and against Plaintiff.
DATED: November 29, 2007
/s/ William Q. Hayes
WILLIAM Q. HAYES
United States District Judge
Fort Collins Needs Your Help to Put Together a Downtown River Project and Kayak Park
Posted: October 7, 2014 Filed under: Paddlesports, Rivers and Waterways | Tags: #Poudre, Cache La Poudre River, Fort Collins, Fort Collins Colorado, Larimer County Colorado, River, x, y, z Leave a comment
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The FlowRider looks fun because it has a lot of people trying it, falling and suing
Posted: October 6, 2014 Filed under: Assumption of the Risk, Florida, Release (pre-injury contract not to sue) | Tags: #Cruise, #FlowRider, Cruise ship, Electronic Release, Florida, Ltd., Release, Royal Caribbean Cruises, Royal Caribbean International, Surfing, United States District Court for the Southern District of Florida, Wave Loch Leave a commentIgnoring the risks that are presented by the defendant are not a way to prove your claim.
Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
State: Florida, United States District Court for the Southern District of Florida
Plaintiff: Mary Magazine
Defendant: Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International
Plaintiff Claims: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm
Defendant Defenses: release
Holding:
Year: 2014
The FlowRide is a surfing simulator. It consists of a sloped surface with water shooting up to the top. The water flowing up is similar to a wave and used to learn to ride a wave or just have fun. You can find Flowriders in stores along the ocean and in this case on a cruise ship.
The plaintiff was a 59 year old attorney that signed up for the cruise. The cruise is a “Card Player Cruise.” These cruises are pushed to poker players. The plaintiff signed up for the cruise two weeks in advance and registered to participate in several activities: ice skating, rock climbing, zip lining and the FlowRider. In doing so she signed an electronic release.
The defendant argued the plaintiff was warned of the risks. There was a “Caution” sign was located in the FlowRider viewing area. There was also a five-minute video that played on television channels on the cruise. There was a list of warnings on the bulletin board.
The plaintiff watched another person on the FlowRider and watched that person fall. The plaintiff’s turn came on the FlowRider. She alternated with other riders and fell 10- to 12 times before falling and breaking her leg. The FlowRider lessons were videotaped including the plaintiff’s fall which broke her leg.
Summary of the case
The court refers to the plaintiff by her last name, Magazine and to the defendant Royal Caribbean Cruises as RCL.
Because the accident occurred on a ship, the standard of care is different. “…a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.”
The judge first throughout the negligent design claims. To be liable for negligent design a “defendant must have played some role in the design.” Because the defendant did not design the FlowRider that claim was thrown out. Also, the negligent maintenance claim was also thrown out.
A shipowner does have a duty to warn passengers of dangers which the shipowner knows or should know about “and which may not be apparent to a reasonable passenger”.
The duty to warn does not extend to dangers that are “open and obvious.” “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger.
Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.
The plaintiff argued that she did not see any of these warnings. However, the plaintiff also stated that even if she had seen the warnings “…she would not have heeded warnings anyway.” The court also stated that the risk of falling was an open and obvious risk in this case.
The court also looked at the requirements the plaintiff had to meet to prove her case. “Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.”
Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) that actually caused the plaintiff’s injury.
The plaintiff argued that it was not falling that caused her injury, but the specific way she fell, which was not identified as a risk of the activity. However, the court did not agree with the argument.
First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.
Second, the general risk of injury on the FlowRide is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway.
The court then stated, “Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious.”
The court then looked at the various other arguments of the plaintiff stating that the surface was not as the plaintiff had imagined that the medical issues suffered by the plaintiff were not related to the warnings and the FlowRider, and the Defendant had a duty to inform riders of other injuries participants had received. The court found all of these arguments of the plaintiff all failed because the risks were open and obvious.
Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference.
The court then reviewed the negligent instruction claim of the plaintiff. The plaintiff argued that how she was instructed, and the methods used to teach here lead to her injury.
While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.
The court found that the plaintiff may have a claim based on negligent instruction.
The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions.
The court then found that:
to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury.
However, the court found the plaintiff’s arguments to be thin and thought she would have a hard time proving those elements at trial.
So Now What?
If you have warning signs, videos, or information of the risks of your activity and are using a release, put in the release that by signing the release the signor states they have seen the warnings and videos and reviewed the website.
During registration for your activity, tell people to read the warnings, watch the videos and read all warning signs.
If you are using methods to teach or use a device that are not suggested by the manufacture or are different from the standard of care for the activity, this case suggests you should inform people of those differences.
What do you think? Leave a comment.
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Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
Posted: October 5, 2014 Filed under: Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: #Cruise, #FlowRider, aboard, balancing, breached, contributed, Curise, Dangerous Condition, Duty to Warn, Electronic Release, Failure to Warn, Falling, instructor, lesson, Ltd., negligently, nonmoving, Notice, passenger, proximate, proximately, reasonable care, Release, ride, risk of injury, rope, Royal Caribbean Cruises, Royal Caribbean International, serious bodily injury, ship, Summary judgment, surface, Surfing, unreasonably, video, warn, warned, Warning Leave a commentMagazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
Mary Magazine, Plaintiff, v. Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International, Defendant.
CASE NO. 12-23431-CIV-SEITZ/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2014 U.S. Dist. LEXIS 41092
March 27, 2014, Decided
March 27, 2014, Filed
COUNSEL: [*1] For MARY MAGAZINE, Plaintiff: Kate S. Goodsell, LEAD ATTORNEY, Michael Charles Black, Cassidy & Black, P.A., Miami, FL.
For Royal Caribbean Cruises, Ltd., doing business as Royal Caribbean International, Defendant: Bryan Edward Probst, LEAD ATTORNEY, Royal Caribbean Cruises, Ltd., Miami, FL; Curtis Jay Mase, LEAD ATTORNEY, Mase, Lara, Eversole PA, Miami, FL; Jennifer Nicole Hernandez, Mase Lara Eversole, P.A., Miami, FL; Lauren E DeFabio, Mase Lara Eversole, Miami, FL.
JUDGES: PATRICIA A. SEITZ, UNITED STATES DISTRICT JUDGE.
OPINION BY: PATRICIA A. SEITZ
OPINION
ORDER ON SUMMARY JUDGMENT
THIS MATTER is before the Court on Defendant’s Motion for Final Summary Judgment [DE-41]. This action arises from a broken leg suffered during a private lesson on the FlowRider, a surfing simulator aboard one of Defendant Royal Caribbean Cruises, Ltd. (“RCL”)’s cruise ships. The essence of Plaintiff Mary Magazine’s single-count complaint is that RCL failed to follow its own procedures and thus negligently increased the risk of Magazine’s injury, principally by failing to warn her of the risk of injury on the FlowRider and by negligently instructing her in its use.
Having considered the motion, the response [DE-48] and reply [DE-52] [*2] thereto, the oral argument of counsel on March 20, 2014, and all of the evidence in the light most favorable to the Plaintiff, the Court will grant the motion as to the allegations that RCL caused an unreasonably dangerous condition under the circumstances, negligently designed and maintained the FlowRider, and negligently failed to warn of the risk of injury therefrom. It will deny the motion as to the allegation that RCL negligently instructed Magazine in the use of the FlowRider, as the Parties’ papers have not addressed Magazine’s counsel’s argument at the March 20, 2014 hearing that the instructors’ hand-off of the balancing rope contributed to the risk of Magazine’s injury.
I. Factual Background
On September 18, 2011, Plaintiff Mary Magazine, a 59-year-old attorney and Miami, Florida resident, departed on a Card Player Cruise aboard the Allure of the Seas, one of RCL’s cruise ships. The FlowRider is a surfing simulator, installed on the Allure of the Seas and other RCL vessels, that uses powerful jets of water to create a continuous, artificial wave on which participants try to surf or ride using either a bodyboard or a surfboard (or “flowboard”). Unlike ocean waves, the FlowRider’s [*3] artificial wave consists of only 1 – 3 inches of water above a “stationary, tensioned vinyl matted fabric surface” above a “rigid or fiberglass or PVC subsurface.” (“Express Assumption of Risk – Waiver & Release of Liability – FlowRider Onboard Activity Waiver – General Terms & Conditions” [DE-41-3] (“FlowRider Waiver”) at 2.)
Almost 2 weeks earlier, on September 6, 2011, Magazine had electronically registered to participate in various activities on the cruise, including ice skating, rock climbing, zip lining, and the FlowRider. As part of the registration process, Magazine checked boxes for each activity and electronically signed the FlowRider Waiver.1 She knew at the time that checking boxes meant “signing something,” which may have included warnings, but does not recall seeing any of the content of the FlowRider Waiver. She did not take additional steps at the time to research any of the activities. Once aboard the ship, she signed up for a FlowRider lesson. Because she was taking a lesson, and because she had previously participated in numerous sports without injury, she did not expect to be injured on the FlowRider. (FlowRider Waiver; Dep. of Mary Magazine [DE-41-2] (“Magazine [*4] Dep.”) 44:1 – 53:4, 69:17 – 22, 122:15 – 123:1.)
1 The parties agree that the FlowRider Waiver is unenforceable under Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846 (11th Cir. 2011).
RCL contends that it warns its passengers of the risks associated with the use of the FlowRider in several ways, all of which Magazine testifies she did not see before her accident. These include the FlowRider Waiver, a “Caution” sign in a viewing area near the FlowRider entrance, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.
On September 20, 2011, Magazine and two other passengers participated in a private FlowRider lesson, which cost $60 per person. One of the instructors asked Magazine about the knee brace she was wearing, and she responded that she’d had a knee replacement and used a brace “just for stability purposes.” Neither instructor said anything further about her knee. (Magazine Dep. 76:17 – 78:6.) There is no evidence that any instructor at this time warned Magazine of any risks associated with the FlowRider or inquired as to her understanding of those risks.
During the lesson, Magazine received [*5] verbal instructions from two RCL FlowRider instructors, though she does not remember the instructions in detail. She first watched another member of her group practice balancing on the board while receiving instruction, lose his balance, fall to the back of the FlowRider, and return to wait in line to ride again. Then, on Magazine’s turn, an instructor initially held her hand while she practiced standing on and maneuvering the flowboard. She was barefoot at this time and throughout the lesson. The instructor then let go of her hand, and Magazine tried to maintain her balance on her own until she fell and was carried by the water to the back of the FlowRider. She returned to wait in line to ride again, ultimately falling and returning to practice riding the FlowRider a total of approximately 10 to 12 times. (See Magazine Dep. 78:10 – 81:3; Dep. of 30(b)(6) representative of RCL, Alison Frazier [DE-42-1] (“RCL Dep.”) 68:3 – 69:8; Pl.’s Notice of Serving Answers to Interrog. [DE-41-1] (“Pl. Interrog.”) ¶ 8.)
After several rides, once the instructor seemed to think Magazine could balance without assistance, the instructors started using a balancing rope. One instructor would give her a [*6] rope, held by a second instructor standing near the front of the FlowRider, to hold with her right hand, while the first instructor held her left hand. Eventually the first instructor would let go of Magazine’s left hand, and the second instructor would guide her with the rope towards the front and middle of the FlowRider, where the water flow was stronger than it had been further back and on the side. It is unclear how many times Magazine practiced with the balancing rope in this way before her injury. (See Magazine Dep. 108:16 – 109:12; Pl. Interrog. ¶ 8.)
During Magazine’s last ride, she was holding the rope while the second instructor guided her to the front and middle of the FlowRider as described above. The video of her accident 2 shows that the second instructor, who had initially been holding the rope, handed the rope to the first instructor. Soon thereafter, Magazine lost her balance and fell backwards into the water. Her legs separated and she lost control of the flowboard. Her fall resulted in a spiral fracture in her femur and ultimately in permanent nerve damage, numbness, tingling, and a pronounced limp. (See Magazine Dep. 112:7 – 119:8; Pl. Interrog. ¶¶ 8, 10; Dep. of [*7] Kevin Breen [DE-44-1] (“Breen Dep.”) 80:8 – 81:23; Def’s Mot. for Final Summ. J. [DE-41] (“SJ Mot.”) at 7 ¶ 27; Pl.’s Resp. in Opp’n to Def.’s Mot. for Final Summ. J. [DE-48] (“Response”) at 8 ¶ 27.)
2 The video of Magazine’s accident was not part of the summary judgment record, but the testimony in the record refers frequently to this video. (See, e.g., Magazine Dep. 23:17 – 19.) Thus, the Court asked the Parties to provide it to the Court at the March 20, 2014 hearing.
II. Legal Standard
General maritime law controls the present action, as it involves an alleged tort committed aboard a ship in navigable waters. Therefore, the elements of negligence are: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)). In the maritime context, “a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Id. (quoting [*8] Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)).
“Summary judgment is appropriate only when, after viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party, the court nonetheless concludes that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party carries the initial burden of production, which can be met by showing that the nonmoving plaintiff has failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007) (citations omitted).
Once the moving party’s burden is met, the nonmoving party, having had the opportunity to conduct full discovery, must demonstrate that there is factual support for each element necessary to establish each claim it wishes to pursue at trial. If the nonmoving party cannot do so, then summary judgment is proper because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other [*9] facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
III. Analysis
Magazine alleges that RCL breached its duty of care in five ways: (1) by causing an “unreasonably dangerous condition” on the FlowRider; (2) by negligently maintaining and (3) negligently designing the FlowRider; (4) by failing to warn her of the risk of injury; and (5) by negligently supervising and instructing 3 her in its use.
3 Although the Complaint alleges that RCL “negligently supervised” Magazine, the Parties now characterize this claim as “negligent supervision and instruction.” (SJ Mot. at 16; Response at 25.) There is no evidence that RCL inadequately supervised or trained its instructors; rather, Magazine argues that RCL’s instructors were negligent towards her during her FlowRider lesson. As such, the claim is more accurately described as negligent instruction.
As to the claims of negligent design and negligent maintenance, Magazine’s counsel conceded at the March 20, 2014 hearing that RCL did not design the FlowRider and that there is no evidence of negligent maintenance. (See also SJ Mot. at 9 ¶¶ 34 – 37; Response at 10 ¶¶ 34 – 37.) To be liable for negligent design, a defendant must have [*10] played some role in the design. See Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (2010) (affirming summary judgment for defendant where there was no evidence that defendant had actually designed the relevant area). Therefore, summary judgment is proper as to the claims of negligent design and negligent maintenance.
Magazine’s counsel also argued at the hearing that RCL’s “caus[ing] an unreasonably dangerous condition” was an independent theory of negligence. However, there is no evidence in the record supporting the existence of any such “unreasonably dangerous condition” that is distinct from the allegations of RCL’s failure to warn, negligent design, negligent maintenance, and negligent instruction. Therefore, summary judgment is proper as to a separate claim that RCL caused an unreasonably dangerous condition under the circumstances.
The Court now turns to the remaining theories of negligence: that RCL failed to warn Magazine of the FlowRider’s risks and negligently instructed her in its use.
A. RCL’s Duty to Warn
A shipowner’s duty of reasonable care includes a duty to warn passengers of dangers of which the shipowner knows or should know but which may not be apparent to [*11] a reasonable passenger. Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013). The duty to warn does not extend to dangers that are “open and obvious.” Id. “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger. Individual subjective perceptions of the injured party are irrelevant in the determination of whether a duty to warn existed.” John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F. Supp. 2d 1345, 1351 (S.D. Fla. 2008) (citations omitted).4
4 See also Restatement (Third) of Torts: Phys. & Emot. Harm § 18, cmt. f (2010):
[T]here generally is no obligation to warn of a hazard that should be appreciated by persons whose intelligence and experience are within the normal range. When the risk involved in the defendant’s conduct is encountered by many persons, it may be foreseeable that some fraction of them will be lacking the intelligence or the experience needed to appreciate the risk. But to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important [*12] function.
RCL maintains that it reasonably warned Magazine multiple times of the risks posed by the FlowRider. (SJ Mot. at 11 – 14.) RCL points to the FlowRider waiver, a “Caution” sign, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.
“Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.” Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir. 1979), modified on other grounds, 612 F.2d 905 (5th Cir. 1980). At summary judgment, the Court must accept Magazine’s testimony that she did not see any of these warnings.
Instead, as detailed below, the dispositive issues are (1) proximate causation and (2) the lack of duty to warn of open and obvious dangers. RCL has two arguments about these issues. First, any alleged failure to warn was not the proximate cause of Magazine’s injury because she “testified that she would not have heeded warnings anyway.” (SJ Mot. at 14.) Second, “the risk of falling and suffering an injury on the FlowRider is surely open and obvious under [*13] the facts of this case.” (Id. at 15 – 16.)
1. Applicable Law
In any negligence claim, the plaintiff must show that the defendant’s breach of duty actually and proximately caused the plaintiff’s injury. Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1566 (11th Cir. 1985) (“[F]ault in the abstract is not sufficient. To produce liability, the acts of negligence . . . must be a contributory and proximate cause of the accident.”). This requires that the defendant’s breach “be a substantial factor in bringing about the harm.” Chavez v. Noble Drilling Corp., 567 F.2d 287, 289 (5th Cir. 1978). Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.
In addition, as noted above, a defendant has no duty to warn a plaintiff about dangers that are open and obvious.5 Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) [*14] that actually caused the plaintiff’s injury. See, e.g., Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (plaintiffs had adequately stated claim that cruise line breached its duty to warn plaintiffs about the high prevalence of gang-related violence in Coki Beach that caused one plaintiff’s death). As neither party identifies the relevant risk with adequate specificity in their written or oral arguments, the Court must glean the types of potentially relevant risks from the Parties’ papers and the record. For the reasons stated below, the Court finds no evidentiary support for a reasonable jury to conclude that any risk exists in this case that meets all four criteria essential to a negligent-failure-to-warn claim.
5 The lack of a duty to warn of open and obvious dangers is related to the requirement of proximate causation because “warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety,” particularly as such warnings “may be ignored by users and consumers and can diminish the significance of warnings about non-obvious, not-generally-known risks.” Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317, 1323 (M.D. Fla. 2003) [*15] (citation omitted).
2. Identifying the Relevant Risk
a. Risk of Falling on the FlowRider
The relevant risk is not simply that one might fall on the FlowRider, as RCL appears to argue at times. (See, e.g., SJ Mot. at 16 (“Plaintiff’s expert and Carnival’s [sic] expert both agreed that falling on the FlowRider is an obvious risk.”).) A reasonable jury could conclude that a first-time participant is virtually guaranteed to fall on the FlowRider.6 However, a fall that results in a spiral fracture and permanent nerve damage is not in the same category as the 10 – 12 earlier falls that Magazine described as “actually kind of fun.” (Magazine Dep. 107:13.) In fact, RCL’s own expert stated that Magazine’s injury resulted from “nuances of how she fell on this occasion, and not the fact that she just fell.” (Expert Report of K. Breen [DE-43-2] at 7.)
6 In fact, RCL’s website advertises the opportunity to “cheer on friends from stadium seating with prime wipeout views” of the FlowRider, suggesting that RCL considers falling to be part of its appeal. Things to do onboard, Royal Caribbean International, http://www.royalcaribbean.com/findacruise/experiencetypes/category.do?pagename=onboard_cat_things_to_do [*16] (last visited Mar. 24, 2014).
b. Risk of Serious Bodily Injury or Death
Instead, the relevant risk is the general risk of serious bodily injury or death on the FlowRider. In the circumstances of this case, this is the same risk as what RCL characterizes as “the risk of falling and suffering an injury on the FlowRider” (SJ Mot. at 15 (emphasis added)) and what Magazine describes as “that there was a chance that she would get hurt while participating in the FlowRider” (Response at 9 ¶ 30). Having identified the relevant risk, the Court finds that summary judgment is proper here for two reasons.
First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider (Magazine Dep. 111:22 – 112:2), and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.
Second, the general risk of injury on the FlowRider [*17] is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway. Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious. See Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352 (S.D. Fla. 2013) (risk of heart attack from uneven terrain on a hike is open and obvious, but risk from invisible volcanic gasses might not be); Balachander v. NCL Ltd., 800 F. Supp. 2d 1196 (S.D. Fla. 2011) (risk of drowning while swimming in the ocean is open and obvious); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398, 2012 U.S. Dist. LEXIS 86052, 2012 WL 2367853 (S.D. Fla. June 21, 2012) (risk of slipping while exiting a swimming pool is open and obvious); Young v. Carnival Corp., No. 09-21949, 2011 U.S. Dist. LEXIS 10899, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011) (risk of tripping while hiking is open and obvious).
Although Magazine argues otherwise, there is no evidence that the Court can extract from the [*18] record supporting the existence of any other risk that is not open and obvious and that could have contributed to her injury. The Court will now address each of the three risks suggested in Magazine’s testimony and arguments.
c. Surface of the FlowRider
Magazine argues that she probably would not have participated in the FlowRider if she had known “that the floor of the FlowRider is a metal surface covered with foam and was as hard as it was.” (Response at 24.) She also testified that she had expected prior to her injury that the foam padding over the base of the FlowRider would be as thick as the padding at the back of the FlowRider (Magazine Dep. 102:6 – 103:3), in contrast to her understanding at the time of testimony that “[u]nderneath the surface of the FlowRider there’s some kind of metal.” (Magazine Dep. 88:7 – 9.)
If the FlowRider’s surface were somehow more dangerous than a reasonable person might expect, that might justify requiring a warning. See, e.g., Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1223 (S.D. Fla. 2013) (plaintiff had adequately stated claim that defendant breached its duty to warn of the slippery condition of its walkway). However, there is no evidence [*19] in the record, other than Magazine’s speculation, suggesting that the subsurface of the FlowRider is made of metal or that there is any less padding than would have been apparent to Magazine from her earlier 10 – 12 rides or to any other FlowRider participant who had the opportunity to walk barefoot on the FlowRider’s surface.
d. Particular Medical Conditions
Magazine testified in her deposition that the FlowRider Waiver was inadequate partially because “[t]here’s nothing . . . that I saw, that says if you have any kind of medical issues, that you should not go on this ride.” (Magazine Dep. 90:6 – 8; see also Response at 8 ¶ 29.) If the FlowRider posed a danger to people with particular medical conditions in ways that a reasonable person with such medical conditions might not expect, that too might justify requiring a warning. However, Magazine expressly states that her knee condition did not cause her injury (Magazine Dep. 126:5 – 127:17), and there is no evidence in the record suggesting that Magazine had any other such medical condition that contributed to her injury. Therefore, any failure to warn Magazine about a risk to those with particular medical conditions did not proximately [*20] cause Magazine’s injury.
e. Previous Injuries on the FlowRider
Magazine also appears to argue that RCL had a duty to inform her that people had previously been injured on the FlowRider. She states in her interrogatory responses that “if I had been advised of all the serious injuries that other RCL guests had experienced I would not have even taken a lesson.” (Pl. Interrog. ¶ 9.) In her deposition, Magazine described the FlowRider Waiver as inadequate partially because “they don’t tell you how many people have been injured on this thing.” (Magazine Dep. 90:2 – 13; see also Response at 8 ¶ 29.) Magazine now emphasizes that “at least one person died using the FlowRider and some 147 more were severely injured using it in the short time between the maiden voyages of the Allure of the Seas and Oasis of the Seas and Plaintiff’s accident” whereas “[n]o guest has ever died using any other onboard activities.” (Response at 27 – 28.)
This argument fails because it does not point to the existence of a non-open-and-obvious risk that could have proximately caused Magazine’s injury. It demonstrates that the FlowRider posed a risk of serious bodily injury or death and that RCL knew of this risk.7 However, [*21] RCL is not contesting these points; in fact, RCL’s primary argument is that RCL adequately warned Magazine of the risk of serious bodily injury or death. Magazine has pointed to no other authority, either in law or in customary practice, imposing a duty to inform passengers of specific numbers of injuries. (See Dep. of Daniel Connaughton, Ed.D. [DE-43-3] (“Connaughton Dep.”) 107:5 – 15.)
7 The list of injuries includes some fractures but also many sprained ankles and toe contusions, which are difficult to characterize as “severe” or as substantially similar to Magazine’s injury. (See Def.’s First. Suppl. Resp. to Pl.’s Req. for Produc. [DE-48-5]; Def’s Notice of Serving First Suppl. Resp. to Pl.’s Interrog. [DE-48-6].)
3. Failure of Proof on Essential Element of Claim
Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference. The only risk that materialized was the general risk that one could fall and be injured on the FlowRider, which was so open and obvious that Magazine admits that a warning referring only to [*22] this general risk would not have mattered. Magazine has not pointed to any other risk about which there was any basis to expect a warning. As such, there is no genuine issue of material fact as to the claim that RCL breached its duty to warn.
B. Issues of Fact As To Negligent Instruction
RCL moves for summary judgment on Magazine’s negligent instruction claim on the grounds that (1) Magazine “avers that she received thorough instruction” from the instructors; (2) the “instructor’s use of a balancing rope to aid the FlowRider passengers was reasonable under the circumstances;” and (3) “there is no record evidence that RCL was on notice that the use of the balance rope was improper.” (SJ Mot. at 16 – 18.)
Magazine responds that (1) a reasonable instructor should ensure that participants understand the relevant risks, such as by requiring viewing of the safety video and providing an explicit opportunity for questions; (2) the use of a balancing rope is “not referenced anywhere as an acceptable balancing or teaching method” in the relevant FlowRider manuals (Response at 25); and (3) RCL failed to provide “reasonable instructional progression including the use of a bodyboard prior to stand-up [*23] riding, as suggested by Wave Loch/FlowRider.” (Report of Daniel Connaughton, Ed.D. [DE-40-1] at 7.) Additionally, at oral argument, Magazine’s counsel pointed to a few seconds of the accident video to support the argument that the hand-off of the balancing rope from one instructor to another contributed to Magazine’s loss of balance and subsequent injury.
The Court has already addressed RCL’s alleged failure to warn. Reasonable care by an instructor may very well include ensuring that participants understand the relevant risks. However, Magazine’s claim on this ground fails due to a lack of proximate causation and because the relevant risk was open and obvious.
As Magazine’s expert concedes, there is no evidence in the record that any failure by RCL to provide a bodyboard contributed to the risk of Magazine’s injury. (Connaughton Dep. 52:7 – 56:3.) Therefore, this argument fails as well.
However, because the Parties’ briefing did not address Magazine’s counsel’s argument at the March 20, 2014 hearing regarding the transfer of the balancing rope, the Court cannot conclude at this time, as a matter of law, that RCL’s instructors necessarily exercised reasonable care in their handling of [*24] the balancing rope, and that such breach did not heighten the risk of Magazine’s injury.8 While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.9
8 There is no evidence undercutting RCL’s contention that the instructors had received all of RCL’s training to become a FlowRider instructor. (RCL Dep. 67:14 – 68:19; SJ Mot. at 6 ¶ 19; Response at 6 ¶ 19.) This may preclude a finding that their use of the balancing rope was inherently improper. (Connaughton Dep. 25:4 – 26:15.) However, this does not address whether the instructors exercised reasonable care in handling the balancing rope.
9 Federal courts exercising admiralty jurisdiction “may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 831, 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996). State law reveals a range of approaches. Compare, [*25] e.g., Alber ex rel. Albert v. Ober Gatlinburg, Inc., No. 3:02-CV-277, 2006 U.S. Dist. LEXIS 100150, 2006 WL 208580, at *5, *8 (E.D. Tenn. Jan. 25, 2006) (denying summary judgment on the grounds that (1) reasonable care meant not exposing skiers to risks that “were not an inherent risk of skiing” and (2) genuine issues of material fact remained as to “the adequacy of the ski lesson . . . and whether that lack of instruction was a proximate cause of [plaintiff’s] fall and injuries.”) and Derricotte v. United Skates of Am., 350 N.J. Super. 227, 794 A.2d 867, 871 (N.J. Super. Ct. App. Div. 2002) (“[P]laintiff’s fall as a result of the rink’s alleged negligence in teaching her how to skate was not an ‘inherent,’ ‘obvious’ or ‘necessary’ risk of skating.”) with Fredrickson v. Mackey, 196 Kan. 542, 413 P.2d 86, 89 (Kan. 1966) (offering horse-riding lessons does not turn a defendant into an “insurer against all possibility of injury or accident”).
Magazine testified that the instructor holding the rope pulled her closer to the front and the middle of the FlowRider, where the water flow was considerably stronger, before she was ready, resulting in her being unable to control the flowboard as she fell. (Magazine Dep. 116:10 – 17, 118:7 – 119:8.) Furthermore, [*26] a jury could view the video of Magazine’s accident as corroborating her testimony and as showing that the hand-off of the balancing rope contributed to the risk of Magazine’s injury.
The Parties’ papers did not address Magazine’s claim as framed in this fashion. Given this framing, these issues remain:
(1) Did the instructors’ handling of the balancing rope contribute to the risk of Magazine’s particular injury?
(2) Was the resulting risk greater than the inherent risk of injury on the FlowRider?
RCL’s response that “the rope helped to maintain Plaintiff’s balance before she fell” (SJ Mot. at 7 ¶ 24) does not adequately address these issues. The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” (SJ Mot. at 18) is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions. See Long v. Celebrity Cruises, Inc., No. 12-22807, 2013 U.S. Dist. LEXIS 164035, 2013 WL 6043918, at *3 (S.D. Fla. Aug. 1, 2013) [*27] (collecting cases).
RCL also argues that Magazine’s testimony is speculative and therefore insufficient to defeat summary judgment. However, the direct testimony of an accident victim about her own accident is not “speculation.” The two cases that RCL cites are not applicable. (Def.’s Reply in Supp. of Mot. for Final Summ. J. at 10.) The first case, Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827 (11th Cir. 2013), addresses the procedurally distinct burden-shifting framework of employment discrimination. The second case, Doe v. NCL (Bahamas) Ltd., No. 11-22230, 2012 U.S. Dist. LEXIS 162654, 2012 WL 5512347 (S.D. Fla. Nov. 14, 2012), involves a plaintiff’s initial speculation that contradicted that same plaintiff’s later representations to the court, rather than a plaintiff’s testimony on a subject about which she has personal knowledge.10
10 Magazine’s testimony about her accident thus differs from her speculation as to the composition of the FlowRider’s subsurface.
Because the Parties have not focused on the reframed issues, the Court cannot conclude at this time that there are no genuine issues of material fact as to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable [*28] care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury. The Court is mindful that accidents, sadly, do happen, and a cruise ship operator “is not an insurer of its passengers’ safety. There thus must be some failure to exercise due care before liability may be imposed.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) (citation omitted). If Magazine fails to establish the necessary evidentiary support for this claim at trial, the Court will entertain a motion for a directed verdict after she rests her case.
IV. Conclusion
Accordingly, it is
ORDERED that
1. Defendant’s Motion for Final Summary Judgment [DE-41] is GRANTED IN PART AND DENIED IN PART as follows:
a) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “caused an unreasonably dangerous condition under the circumstances.”
b) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “negligently maintained the Flowrider in question.”
c) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that “the Flowrider in which the Plaintiff fell was negligently designed.”
d) GRANTED WITH PREJUDICE with respect to Magazine’s allegation [*29] that RCL “failed to warn the Plaintiff and fellow passengers of a dangerous and hazardous condition about which it knew or should have known.”
e) DENIED with respect to Magazine’s reframed allegation that RCL negligently instructed her in the use of the FlowRider.
2. The deadline to file the Joint Pretrial Stipulation, proposed jury instructions and verdict form, and Motions in Limine and Responses [see DE-8 at 2] is EXTENDED to April 10, 2014.
3. The Pretrial Conference is RESCHEDULED to 1:30 pm on April 22, 2014.
4. Defendant’s Motion in Limine to Admit Evidence of Defendant’s Warnings Regarding the FlowRider [DE-29] is DENIED as failing to comply with the requirements set in this Court’s March 12, 2013 Order [DE-8 at 2].
DONE and ORDERED in Miami, Florida, this 27th day of March, 2014.
/s/ Patricia A. Seitz
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE
Tour of Utah UCI ranking increases to 2.HC
Posted: October 3, 2014 Filed under: Cycling | Tags: Bicycle Racing, Cycling, Larry H. Miller, Larry H. Miller Tour of Utah, Salt Lake City, Tour of Utah, UCI, Union Cycliste Internationale, Utah Leave a comment
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Redesigning trucks so they have greater vision may save cyclists lives
Posted: October 2, 2014 Filed under: Cycling | Tags: Cyclists Leave a comment
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Outdated, brick-shaped lorry cabs are part of the reason why lorries have a deadly track record. Today’s cab design forces the driver to sit on top of the engine in such a high position that much of what happens around the cab is invisible to them – the so-called fatal blind spots.
13th Annual Colorado Snow and Avalanche Workshop: If you are in the ski industry in the West you need to be here!
Posted: October 2, 2014 Filed under: Avalanche | Tags: Alaska, avalanche, Breckenridge, CAIC, Colorado, Colorado Avalanche Information Center, CSAW, Friends Leave a comment13th Annual Colorado Snow and Avalanche Workshop (CSAW)
English: I took this picture on May 2006, on my way to Mount Everest base camp. Ilan Adler. (Photo credit: Wikipedia)
8 a.m. – 5 p.m.
Breckenridge Riverwalk Center
150 West Adams Ave
Breckenridge, CO 80424
Tickets: http://tinyurl.com/csawtickets2014
Join the CAIC and Friends of CAIC in Breckenridge, Colorado for this year’s Colorado Snow and Avalanche Workshop.
We have invited speakers from around Colorado and as far as Montana, Canada, and Alaska. It’s going to be a great event and we would love to see you there. You can see the full schedule here: http://tinyurl.com/csaw2014.
Register before October 13th and save on the registration fee.
A powder snow avalanche (Photo credit: Wikipedia)
Also, don’t forget to book your hotel rooms. Beaver Run Resort is offering discounted rates for our attendees. Rooms can be booked by calling Beaver Run group reservations at 1-800-525-2253 and mentioning CAIC.
We are looking forward to another great CSAW!
Lots of Changes in Ski Resort Ownership this past month
Posted: September 30, 2014 Filed under: Skiing / Snow Boarding | Tags: x, y, z Leave a comment
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Arbitration clause in a release is upheld in Mississippi, but only because it was Fair
Posted: September 29, 2014 Filed under: Contract, Mississippi | Tags: Arbitration, Arbitration clause, Education Corporation of America, Enrollment, Enrollment Agreement, MISSISSIPPI, Release, Tuition, Tuition Agreement, Virginia College L.L.C., Willis-Stein and Partners 2 CommentsThe larger issue is should you use arbitration and if you should, when?
Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037
State: Mississippi; UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Plaintiff: Mississippi, United States Court of Appeals for the Fifth Circuit
Defendant: Virginia College L.L.C.; Education Corporation of America; Willis-Stein and Partners
Plaintiff Claims: negligence, conversion, embezzlement, and unjust enrichment
Defendant Defenses: Mandatory arbitration as found in the release which was part of the enrolment agreement
Holding: for the defendant
Year: 2012
The facts of this case are unknown. What is known is the plaintiff enrolled in the defendant’s college. To enroll she had to sign an Enrollment and Tuition Agreement. The Enrollment and Tuition Agreement (Enrollment form) had a mandatory arbitration clause.
Arbitration is a cross between mediation and a trial. Arbitration is usually done by a member of the American Arbitration Association or by a neutral party picked by both sides. Arbitration is a lot cheaper and faster than going to trial. In many states, an arbitrator cannot award all the types of damages that a jury or judge could. Arbitrators rarely award as much money in damages as a jury does.
Arbitration is supported by state law, which limits damages, compels arbitration, and encourages and forces parties to an arbitration clause to arbitrate.
In this case, the plaintiff objected to the required arbitration required in the contract. That arbitration was required by the trial court, and the plaintiff appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit Court upheld the mandatory arbitration.
Summary of the case
The discussion in this case is fairly simple. The plaintiff was unhappy about how the defendant’s school had retained portions of the federal financial aid she had received. She sued claiming the arbitration clause was void because it was unconscionable.
Under Mississippi law unconscionability:
…is proven by oppressive contract terms such that there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.
The plaintiff argued that the enrollment agreement was unconscionable because it limited damages, had a jurisdiction and venue clause and awarded the defendant attorney fees if it won its case. To overcome some of the issues, the defendant in its written argument to the appellate court considered the attorney fee clause stating the clause allowed any winning party to recover its attorney fees.
Consequently, the arbitration clause was not found to be unconscionable in this situation applying Mississippi law.
So Now What?
The real issue to look at in this case is, whether should you use arbitration if you run an outdoor recreation business or program and if so when.
Probably, if you are an outdoor recreation activity in a state that supports the use of a release, and you have a well-written release, then no, do not require arbitration. The reason is simple; arbitration does not allow motions for summary judgment, which is a quick and final ending to the litigation.
Arbitration will allow the parties to go to arbitration and allow the plaintiff to have their day in court. Usually, a motion for summary judgment is faster, simpler, and cheaper.
The only places I would consider arbitration in an outdoor recreation business setting would be those states that do not allow the use of a release if those states support mandatory arbitration. At the time of the writing of this article, those states are: Louisiana, Montana, and Virginia (although Virginia attorneys continuously tell me lower courts uphold releases?).
Possibly Alaska, Hawaii, New York, Arizona, New Mexico, and West Virginia for some activities were the state legislature or the courts have held that releases are not valid for those activities. However, in all of those states, you must investigate the statute and make sure arbitration works the way you need as well as limits the damages that can be awarded by an arbitrator.
See States that do not Support the Use of a Release
Arbitration is not a cover-up for having a bad release. If your release is bad, an arbitration clause is not going to provide any greater protection. Besides if you have a bad release, you probably have a bad arbitration clause also.
Of note, is the court looked at the over-all fairness of the agreement and the arbitration clause. Without a finding of fundamental fairness, the court might have voided the arbitration clause. In
For an article on failed arbitration see: Complicated serious of cases created to defend against a mountaineering death.
AdventureTourism, #AdventureTravelLaw, #AdventureTrav
What do you think? Leave a comment.
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Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and 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 manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037
Posted: September 28, 2014 Filed under: Contract, Legal Case, Mississippi | Tags: Arbitration, Arbitration clause, Education Corporation of America, Enrollment, Enrollment Agreement, MISSISSIPPI, Release, Tuition, Tuition Agreement, Virginia College L.L.C., Willis-Stein and Partners Leave a commentTo Read an Analysis of this decision see
Arbitration clause in a release is upheld in Mississippi, but only because it was “fair”
Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037
Natifracuria, Plaintiff-Appellant, Virginia College L.L.C.; Education Corporation of America; Willis-Stein and Partners, Defendants-Appellees,
No. 11-60861 Summary Calendar
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
June 26, 2012, Filed
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the Southern District of Mississippi. USDC No. 3:11-CV-496.
DISPOSITION: The district court’s judgment is AFFIRMED.
COUNSEL: For NATIFRACURIA DANIELS, Plaintiff – Appellant: Precious Tyrone Martin, Sr., Esq., Precious Martin, Sr. & Associates, P.L.L.C., Jackson, MS.
For VIRGINIA COLLEGE, L.L.C., EDUCATION CORPORATION OF AMERICA, Defendants – Appellees: Ollie Ancil Cleveland, III, Esq., Peter Sean Fruin, Attorney, Maynard, Cooper & Gale, P.C. Birmingham, AL.
For WILLIS-STEIN AND PARTNERS, Defendant – Appellee: Robert Lewis Gibbs, Esq., Gibbs Whitwell, P.L.L.C., Jackson, MS.
JUDGES: Before REAVLEY, SMITH, and PRADO, Circuit Judges.
OPINION
[*893] PER CURIAM:*
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Plaintiff-Appellant Natifracuria Daniels appeals the district court’s order compelling arbitration of her state-law tort and restitution claims against Defendants-Appellees Virginia College at Jackson, Virginia College, L.L.C., Education Corporation of America, and Willis-Stein and Partners (collectively “Virginia College”). Virginia College moved [**2] to compel arbitration in order to enforce an arbitration clause in the “Enrollment and Tuition Agreement,” which Daniels signed before enrolling as a student at Defendant Virginia College at Jackson (individually, “the College”). On appeal, Daniels contends that the Agreement’s arbitration clause does not cover her tort claims, and she contends that the arbitration clause is unconscionable.
We AFFIRM.
The Enrollment Agreement’s arbitration clause requires arbitration of any claim “arising out of or relating to [the Agreement], together will all other claims . . . of any nature whatsoever arising out of or in relation to [Daniels’s] enrollment and participation in courses at the College . . . .” Daniels alleges that the College unlawfully retained the portion of her federal financial aid monies that should have been disbursed to Daniels to cover her cost of living. She brings state-law claims sounding in negligence, conversion, embezzlement, and unjust enrichment. Because these claims arose “in relation to [Daniels’s] enrollment and participation in courses at the College,” the district court was correct in finding them subject to the arbitration clause.
[HN1] Under Mississippi law,1 substantive [**3] unconscionability “is proven by oppressive contract terms such that there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.” Covenant Health and Rehab. of Picayune, LP v. Estate of Moulds, 14 So. 3d 695, 699-700 (Miss. 2009) (internal citation and quotation marks omitted). In Covenant Health, the Mississippi Supreme Court found that a contract containing an arbitration clause “coupled with a multitude of unconscionable provisions,” including asymmetrical limitations on liability, choice of forum, and other matters, was unenforceable in its entirety. Id. at 703. Daniels argues that the Enrollment Agreement is similarly laden with unconscionable provisions.
1 The Enrollment Agreement has an Alabama choice-of-law provision. But no party raises this provision, and they have relied on Mississippi law throughout their briefing on appeal and before the district court.
First, there is language in the arbitration clause that allows the College, but not Daniels, to seek injunctive relief in court. [HN2] An agreement that requires only one party to submit its claims to arbitration is unconscionable [**4] under Mississippi law,2 but the language at issue here merely allows the College to seek a preliminary injunction to halt a student’s ongoing breach of the Enrollment Agreement. The College must seek all other relief though arbitration. An asymmetric exception so limited in scope does not make an arbitration clause unconscionable. Sawyers v. Herrin-Gear Chev. Co., 26 So. 3d 1026, 1035 (Miss. 2010) (arbitration clause between car dealer and purchaser enforceable notwithstanding exception allowing car dealer to bring an action to repossess the car in court).
2 Covenant Health, 14 So. 3d at 700 (citing Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 658 (S.D. Miss. 2000)).
[*894] Daniels also points to the arbitration clause’s language prohibiting the arbitrator from awarding any damages not “measured by the prevailing party’s actual compensatory damages.” [HN3] Ostensibly bilateral limitations on punitive damages are unconscionable under Mississippi law if they are one-sided in practical effect due to the weaker party’s being “much more likely to be justified in seeking punitive damages.” Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 523-24 (Miss 2005) (ostensibly bilateral punitive-damages [**5] limitation in contract of adhesion between nursing home and occupant unenforceable against occupant), overruled on other grounds by Covenant Health, 14 So. 3d at 706 (Miss. 2009). However, as Virginia College concedes in its brief, the arbitration clause does not bar the arbitrator from awarding damages in excess of compensatory damages. It merely requires that the amount of such damages be based on the prevailing party’s compensatory damages. Sawyers, 26 So. 3d at 1036 (interpreting nearly identical language as requiring only that the parties be “limited as to the amount of punitive damages which might be awarded, since such an award would have to be ‘measured by the prevailing party’s actual damages'”). Such provisions are not unconscionable. Id.
Daniels next points to the Enrollment Agreement’s asymmetric liquidated damages provision, which she contends would leave her without any remedy for the wrongs she alleges because its language limits her recovery to “an amount equal to any non-refunded tuition payments . . . .” [HN4] Contractual provisions intended to exculpate a party of liability for its own tortious conduct are particularly suspect under Mississippi law. See Turnbough v. Ladner, 754 So.2d 467, 469 (Miss. 1999)). [**6] As Virginia College concedes, however, the liquidated damages provision in the Enrollment Agreement applies only to breach-of-contract damages, and would not affect recovery for Daniels’s claims.
Finally, a provision of the agreement permits the college to recover attorney’s fees against Daniels if it prevails in any action or arbitration that is “permitted” by the Enrollment Agreement or that “aris[es] out of [the Agreement] and the subject matter contained [there]in.” However, while the Enrollment Agreement is silent with respect to Daniels’s recovering fees if she prevails, Virginia College disavows any interpretation of it that would preclude Daniels from recovering attorneys’ fees to which she might otherwise be entitled under the arbitration rules. Given Virginia College’s concessions regarding the meaning of its provisions, enforcing the Enrollment Agreement’s arbitration clause is not unconscionable under Mississippi law.
The district court’s judgment is AFFIRMED.
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Project Learning Tree has a new program: Grandparents as Environmental Educators
Posted: September 26, 2014 Filed under: Uncategorized | Tags: x, y, z Leave a commentProject Learning Tree is piloting a new program: Grandparents as Environmental Educators!
We 10 grandparents to try this and provide feedback! If you have preschool-aged grandchildren, would like to receive a free Environmental Experiences for Early Childhood activity guide and music cd, AND earn a $25 stipend, then call us by 3:00 PM tomorrow-Wednesday! Be a member of our focus group and help us create something new!
Read the announcement below, then call 303-877-7585 immediately. Be one of the first 10 to call to receive the $25 stipend.
Did you play outside when young, not coming in until the dinner? Are you looking for inexpensive, entertaining and educational ways to engage and excite your young grandchildren outdoors without spending money on admission fees all the time? Have you read the very popular book, “Last Child in the Woods: Saving your child from Nature Deficit Disorder”? Do you lament that today’s children and their parents are often times more interested in “screens” –smart phones, video games, tablets, and other electronic toys and distractions?
Celebrate Grandparents’ Month with this workshop designed just for you! You’ll learn simple and fun ideas that will help you and your grandchildren connect with nature while they learn about counting, sorting, matching, colors, sounds, seasons, trees, vocabulary and more.
This hands-on workshop will cover various developmentally appropriate and thematic activities including snacks, literature, crafts, music, and inexpensive, natural materials for exploring and investigating. Take home the easy-to-use activity guide book and music CD filled with great ideas on how to engage three to six year-olds in outdoor exploration and play while helping them gain skills and vocabulary (30,000 words! Really!) to be ready for success in kindergarten and beyond-all in the convenience of your backyard or neighborhood park.
Thanks so much for your help! Share this with other grandparents! There are two workshops this weekend-on at Lookout Mt. Nature Center Saturday from 10-1, and one in Woodland Park, Sunday from 1-4. Go to www.coloradoplt.org for more information!
2015 Advancing Environmental Education Conference
Posted: September 25, 2014 Filed under: Uncategorized | Tags: x, y, z Leave a comment
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CAEE is seeking session proposals that highlight environmental education (EE) approaches from a variety of backgrounds, sectors and focus areas, and in particular the connections between EE research, practices and collaborations that offer tangible takeaways for participants.CAEE is excited to be partnering with…
Great article about the risks of an organization creating standards for members of the industry – and I did not write it
Posted: September 24, 2014 Filed under: Uncategorized | Tags: Center for Association Leadership, Certification, Insurance, Legal liability, Liability insurance, Non-Profit, Professional certification, Standards, Trade association Leave a commentThe article exams the ways that standards can come back and be a liability for the organization that created them.
The Center for Association Leadership is the trade association for non-profit association directors. Its purpose is to provide information and education for non-profit associations, their directors and their boards. Part of that education is articles by attorneys to outline the risk areas of association.
One article was sent to me by one of my trade association clients. It is titled Certification and the Law. The title is a little misleading. The article is really about standards rather than certification. If you read the article you will see the term certification is used interchangeably with standards.
The article talks about the risks of doing so first and discusses the National Spa and Pool Institute litigation in the late 90’s that put the association in bankruptcy. The legal costs alone exceeded the insurance available to pay the claim.
Thankfully, full-scale judicial attacks are relatively rare, but as the cases involving the National Spa and Pool Institute show, such claims can be devastating. NSPI lost a jury trial in 1998 which, inter alia, alleged that NSPI had failed to exercise a duty of using “reasonable care” when it promulgated its swimming pool standards. NSPI’s legal defense costs greatly exceeded its insurance coverage. To avoid being shut down by the jury’s verdict and in order to post a bond for the appeal of the case, NSPI filed for Chapter 11 reorganization.
There are many other legal issues discussed in the article including educational programs etc. but I’ll quote sections concerning creating standards that I think are important.
Antitrust. Certification programs beg antitrust scrutiny, given that the object of standard setting is to bring competitors together to set criteria for, among other things, restricting entry into a field. Antitrust law prohibits anyone from unreasonably creating a barrier to practice in a profession. Therefore, the certification organization must make sure that all of its eligibility requirements are reasonable-that is, relevant to determining the professional’s skill level and not so high as to block the majority of professionals from being eligible to apply for certification.
The article discusses the liability requirements to hold an association liable for its standards.
Third-party reliance. If a customer, patient, or employer is injured by a certified product or professional, it is possible that the certifying organization will be held liable for negligence or negligent misrepresentation. The argument follows that the person relied on the certification as a guarantee of competence; because the certified product or professional did not perform competently, the certification should not have been granted. Thus, it is argued, the standard-setting organization should be liable to the injured person for its mistaken or negligent grant of certification.
In order to find liability, the injured party generally must prove that
the organization should have known better than to grant certification;
the organization should have known that its mistake could result in the injury; and
the injured party was justified in relying on the certification as a guarantee of competence.
There are very few of these types of lawsuits. The article discusses lawsuits that have been filed.
Among those that have arisen, several have held that the organization is not liable in the case of products when it did not manufacture the product that caused the injury and did not exercise control over the manufacturer. Nevertheless, it is clear that liability may be found when certification is negligently granted or maintained. The deciding factor is the degree of control that can be shown that the standard-setting program exercised-or should have exercised-over the product or professional.
As the article points out, lawsuits against trade associations are rare, however, if they do occur, they can be devastating.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
#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, Certification, Standards, Non-profit, Trade Association, Center for Association Leadership,
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Recreation Law 