Peace in Natue & Ecotourism
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Well written decision from Wyoming defines release law and how releases should be written.
Posted: July 7, 2014 Filed under: Health Club, Release (pre-injury contract not to sue), Wyoming | Tags: Defendant, Gym, Health club, Lat-Pull-Down, Massengill, Negligence, Plaintiff, Rehabilitation, S.M.A.R.T., Sports medicine, Trial court, Wyoming, Wyoming Supreme Court 2 CommentsThis case is interesting because one of the attempts to remove the release from the decision was a claim the plaintiff was at the defendant gym working out because he was told to by a physician, and the gym was owned by a different physician.
Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21
Plaintiff: James Massengill and Kaylea Massengill
Defendant: S.M.A.R.T. Sports Medicine Clinic, P.C.
Plaintiff Claims: Negligence, loss of consortium
Defendant Defenses: Release
Holding: For the defendant
The plaintiff was injured when a pin in a lat-pull-down machine that secured the weights came out, and he fell backwards injuring his wrist. The plaintiff sued, and the defendant raised the defense of release.
The plaintiff was told by his physician to exercise more. One day while at a drugstore, he had met an owner of the defendant gym, a physician, who talked to him about the gym.
The plaintiff and his wife went to the gym. They were given a release and told to take it home and read it. Three days later the plaintiff’s came back, signed the release and began to use the facilities.
The plaintiff had not asked for instructions on the lat-pull-down machine and did not ask for any because he had used one previously. He had been using the particular machine for a month and had noticed that the pin did not appear to fit when he was injured.
The trial court ruled the release was valid and barred the claims of the plaintiffs, dismissing the case. The plaintiff’s appealed. This case is based in Wyoming, which only has trial courts and the Wyoming Supreme Court, in intermediate appellate courts.
Summary of the case
The court first looked at the language of the release, to determine if the language was clear and unequivocal.
Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T., and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T.
The court found the language was clear and unequivocal as well as broad and specially released the defendant from claims and actions for negligence.
The court then examined the release based on contract law. Releases are contracts and are interpreted using traditional contract principles. The entire document is examined as a whole.
The language of the Agreement and Release is clear in manifesting an intention to release S.M.A.R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.”
Wyoming has four factors to examine to determine if a release is valid.
(1) whether a duty to the public exists;
(2) the nature of the service performed;
(3) whether the contract was fairly entered into; and
(4) whether the intention of the parties is expressed in clear and unambiguous language
The court found the release in question was properly reviewed by the trial court, and the release met all four tests. The court then looked at the plaintiff’s claims the release violated public policy. Under Wyoming law, a duty to the public exists “if the nature of the business or service affects the public interest, and the service performed is considered an essential service.” A release that affecting a public interest giving rise to a duty to the public is one that:
“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.”
In Wyoming, this list of businesses would be “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities.”
A health club or gym is recreational in nature and do not meet the requirements and do not qualify as a business suitable for public regulation. A gym or health club is not essential.
The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential….
Then court then looked at the plaintiff’s claims that he was at the gym for medical reasons. However, the court could find no evidence that the plaintiff was at the gym engaging in rehabilitation.
The court then looked at the plaintiff’s claim that there was a disparity of bargaining power between the parties which should void the release. However, this argument also failed.
Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.
The plaintiff’s raised one final argument that claimed the Wyoming Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123:
…creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity.
The court called this a convoluted argument and did not agree with the argument.
The final argument was based on the wife’s claim for loss of consortium. The court held there were two different ways this claim also failed. The first was the wife signed a release at the same time as her husband; the plaintiff and the release stopped her suit. Also because her claim of loss of consortium is derivative, meaning only can exist if the original claim exists, then her claim fails also.
The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order.
The court upheld the trial courts dismissal of the claims.
So Now What?
This is a great decision to assist in writing a release in Wyoming. Of interest was the fact the court pointed out, the plaintiffs were given three days to review the release before signing.
The four requirements for a release are similar to most other states. How you deal with the issue of someone at your facility for health or rehabilitation reasons might present a problem.
What do you think? Leave a comment.
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Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21
Posted: July 7, 2014 Filed under: Health Club, Legal Case, Release (pre-injury contract not to sue), Wyoming | Tags: Government, Gym, Health club, Lat-Pull-Down, Massengill, Rehabilitation, S.M.A.R.T., Sports medicine, Wyoming, Wyoming Supreme Court Leave a commentMassengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21
James Massengill and Kaylea Massengill, Appellants (Plaintiffs), v. S.M.A.R.T. Sports Medicine Clinic, P.C., Appellee (Defendant).
No. 98-150
SUPREME COURT OF WYOMING
996 P.2d 1132; 2000 Wyo. LEXIS 21
February 14, 2000, Decided
PRIOR HISTORY: [**1] Appeal from the District Court of Laramie County. The Honorable Nicholas G. Kalokathis, Judge.
DISPOSITION: Affirmed.
COUNSEL: Representing Appellants: Robert A. Hampe, Cheyenne, Wyoming (Withdrew pursuant to an Order of Suspension Upon Consent entered in the Wyoming Supreme Court on June 18, 1999.)
Representing Appellee: John I. Henley of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.
JUDGES: Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, * JJ.
* Retired November 2, 1998.
OPINION BY: THOMAS
OPINION
[*1132] THOMAS, Justice.
The only issue in this case is whether a waiver of liability in a contract between S.M.A.R.T. Sports Medicine Clinic, P.C. (S.M.A.R.T.) and James Massengill (Massengill) is enforceable under the standards adopted in Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) and followed in later cases. Massengill was using a lat-pull-down machine at S.M.A.R.T. when a pin used to secure the weights fell out. Apparently the pin did not fit properly in the machine, and when the pin fell out, Massengill fell over backwards injuring his wrist. In various statements of the [*1133] issues, Massengill attacks the validity of the waiver of liability on the grounds [**2] that it violated public policy; the business of S.M.A.R.T. is suitable for public regulation; the use of the premises at the time of injury by Massengill is not material; the question of duty is one that must be determined by a trier of fact; and S.M.A.R.T. owed a statutory duty to Massengill which invalidates the waiver. Our review of the record and legal precedent in Wyoming persuades us that the district court ruled correctly that there is no genuine issue of material fact in this case, and S.M.A.R.T. is entitled to judgment as a matter of law. The Order Granting Defendant’s Motion for Summary Judgment is affirmed.
In the Appellants’ Supreme Court Brief, filed on behalf of James Massengill and Kaylea Massengill (collectively the Massengills), these issues are stated:
Issue I
Did the district court error [sic] in validating the “waiver of liability” in the “sports specific training and advanced rehab agreement and release[“] due to the fact that:
(A) The release violated public policy,
(B) The business operated by appellee is suitable for public regulation, and
(C) Plaintiff J. Massengill was engaged in non therapeutic activities on the premises of [**3] the medical clinic has no bearing on whether the release should be validated or not?
Issue II
Is the duty issue in this case purely a question of law where the basic facts are undisputed or is the duty issue one which can only be determined by the trier of fact?
Issue III
Did appellee owe a statutory duty of care to appellant which would invalidate the waiver incorporated in the sports specific training and advanced rehabilitation agreement & release?
In the Brief of Appellee S.M.A.R.T. Sports Medicine Clinic, P.C., the issues are stated in this way:
Was the waiver of liability executed by the Appellants valid[?]
(i) Was the Appellee’s waiver language inclusive and unambiguous as required by prior Wyoming Supreme Court case law; [or]
(ii) Is the waiver language of the Appellee contrary to public policy[?]
One evening James Massengill engaged in a conversation at a Cheyenne drugstore with the equity owner of S.M.A.R.T., a physician in Cheyenne. Massengill knew that S.M.A.R.T. had a weight room, and had seen recent advertisements to the effect that the facility offered personal trainers to assist members. In the course of a brief [**4] conversation, Massengill mentioned his interest in S.M.A.R.T.’s facilities, and the physician suggested he come over and try it out. A month or two following the conversation, Massengill went to S.M.A.R.T. and toured the facilities. The purpose of his initial visit was to assure himself that the equipment met his need, which was to get in better condition.
After he had been shown the facilities and the equipment, Massengill was given a Sports Specific Training and Advanced Rehabilitation Agreement and Release (Agreement and Release) to take home and review. Three days later, both Massengill and his wife executed the Agreement and Release, and they began using the facilities. Massengill was present at S.M.A.R.T. almost every day, and he had been using the lat-pull-down machine for nearly a month prior to his injury. He had not asked any questions about using the machine because he had used one previously. On March 13, 1996, Massengill was warming up on the machine, and he noticed that the pin holding the weights was shaped like a “T” rather than the longer “I” usually used. When Massengill pulled the bar down, the pin holding the weights popped out, and he fell over backwards, hitting [**5] his left hand and injuring his wrist.
On May 29, 1997, the Massengills filed their Complaint for Negligence and Damages. The first count of the Complaint for Negligence and Damages was couched in terms of alleged negligence causing injury to James Massengill, and the second count was couched in terms of recovery by Kaylea Massengill [*1134] for loss of consortium based upon her husband’s injuries. Various procedural steps, including discovery, followed the Answer by S.M.A.R.T., which included the affirmative defense of waiver and the affirmative defense that Kaylea Massengill’s claims were derivative of James Massengill’s claim. On October 3, 1997, there was filed by facsimile a Defendant’s Motion for Summary Judgment accompanied by a Memorandum in Support of Defendant’s Motion for Summary Judgment. Additional procedural steps ensued, and on February 2, 1998, the district court entered an Order Granting Defendant’s Motion for Summary Judgment.
The district court ruled that the exculpatory clause, including the release and waiver, was not ambiguous and was enforceable. Since the premise for the grant of the summary judgment by the district court was the language contained in the Agreement [**6] and Release, the district court ruled implicitly that any other issues of fact, genuine or not, were not material. The Massengills have appealed from the Order Granting Defendant’s Motion for Summary Judgment.
In Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo. 1999), we summarized our rules with respect to review of summary judgments:
“‘When [HN1] a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.'” Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). [**7] See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).
“A [HN2] summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo.[,] 550 P.2d 490 (1976). [HN3] After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat’l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence [**8] at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt.” Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).
Nowotny v. L & B Contract Industries, 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985)).
More specifically and succinctly, with respect to this case, when review is sought of a summary judgment this Court must determine that there is no genuine issue of a material fact and the party prevailing in the district court is entitled to judgment as a matter of law. Utilization of summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. [HN4] In accomplishing the review of a summary judgment resting upon a question [*1135] of law, our review is de novo and affords no deference to the district court’s ruling on that question. E.g., Roberts v. Klinkosh, 986 P.2d 153, 156 (Wyo. 1999); Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo. 1999); [**9] Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo. 1998).
Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T. and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T. It continues with this language:
1. Any member using S.M.A.R.T. SPORTS facility shall undertake any and all risks. The member shall also be liable for any and all risks. S.M.A.R.T. SPORTS shall not be liable for any injuries or damage to any member, or the property of the member, or be subject to any claim, demand, injury or damages whatsoever, including, without limitation, those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents. The member, for himself/herself and on behalf of his/her executors, administrators, heirs, assigns, and assignees and successors, does hereby expressly forever [**10] waive, release and discharge S.M.A.R.T. SPORTS, its owners, officers, employees, agents, assigners and successors from all such claims, demands, injuries, damages, actions or causes of action.
The language of the Agreement and Release is broad, and specifically releases S.M.A.R.T. from claims and actions for negligence. Indeed, the Massengills do not assert that the agreement does not apply to this action; instead, their contention is that the agreement is not enforceable. In the absence of any genuine issue of a material fact with respect to the language of the Agreement and Release, the issue is a pure question of law with respect to whether the district court invoked and correctly applied the pertinent rules of law.
In Shepard v. Top Hat Land & Cattle Co., 560 P.2d 730, 732 (Wyo. 1977), the applicable rule was summarized:
[HN5] If the language of the contract is plain and unequivocal that language is controlling and the interpretation of the contractual provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous. Mauch v. Ballou, Wyo., 499 P.2d 591 (1972); [**11] Craig v. Gudim, Wyo., 488 P.2d 316 (1971); Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849 (1970); Flora Construction Company v. Bridger Valley Electric Association, Inc., Wyo., 355 P.2d 884 (1960); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093 (1955).
This rule first was alluded to by this Court in Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 230, 131 P.2d 315, 321 (1942), and it has been consistently applied over the years, appearing most recently in Saulcy Land Co. v. Jones, 983 P.2d 1200, 1202 (Wyo. 1999).
[HN6] Exculpatory clauses or releases are contractual in nature, and we interpret them using traditional contract principles and considering the meaning of the document as a whole. Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo. 1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701 P.2d 1157, 1159 (Wyo. 1985). The language of the Agreement and Release is clear in manifesting an intention to release S.M.A. [**12] R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.” And, just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the entire membership application evidences no other rational purpose for which it could have been intended.”
The Massengills endeavor to avoid the release and waiver articulated in the Agreement and Release by arguing that it is not valid as a matter of public policy because the business of S.M.A.R.T. is appropriate for [*1136] public regulation, and the nature of the use of the equipment by Massengill is not material to the public policy or public regulation determination. We said in Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999):
[HN7] In Wyoming, a contract limiting liability for negligence may be enforced only if it does not contravene public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059-60 (Wyo.1986); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601 P.2d 532, 535 (Wyo.1979). [**13]
In Schutkowski, 725 P.2d at 1060, this Court adopted from Colorado a four-part test for evaluating a negligence exculpatory clause. [HN8] The factors the court considers are: “(1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” A comparison of Massengill’s claim with these factors leads to the ineluctable conclusion that the district court’s decision was correct as a matter of law.
We said in Milligan, 754 P.2d at 1066, “[ [HN9] a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” We then adopted from California [HN10] a definition of a release agreement affecting the public interest, giving rise to a public duty, which is that it
“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for [**14] some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Emphasis added and footnotes omitted.) Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46, 6 A.L.R.3d 693 (1963).
Milligan, 754 P.2d at 1066. We also adopted a [HN11] list of examples of services which are typically subject to public regulation and which demand a public duty or are considered essential. The list includes common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Milligan, 754 P.2d at 1066.
Schutkowski was a case involving a sky diving injury, and we held that [HN12] a private recreational business does not qualify as one that owes a special duty to the public nor are its services of a special, highly [**15] necessary nature. Schutkowski, 725 P.2d at 1060. The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential, and there was no greater duty to the public than existed in Schutkowski, Boehm or Milligan. The district court in its Order Granting Defendant’s Motion for Summary Judgment cites and relies upon decisions from other jurisdictions which have held that [HN13] exculpatory clauses in health club contracts do not violate public policy. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982); Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (1995). We are persuaded that the approach of the courts in Minnesota and Washington is the correct rule.
Massengill further maintains that he joined S.M.A.R.T. pursuant to a doctor’s order, and as such was receiving an essential service; therefore, S.M.A.R.T. owed him a public duty that is subject to regulation. A casual conversation, at a drugstore one evening, with the doctor/equity [**16] owner of the S.M.A.R.T. facility hardly qualifies as a prescription. The doctor was not Massengill’s treating physician nor was he acting in that capacity; he engaged in the conversation as the owner of the facility and not a physician. Moreover, the record is devoid of evidence showing that on the day he was injured, Massengill was engaging in a rehabilitation program. He admitted joining S.M.A.R.T. to [*1137] get into better physical condition. That was the purpose of his membership at S.M.A.R.T., and it qualifies as a recreational activity and not a practical necessity. Based on Massengill’s own testimony, his membership was purely recreational and not pursuant to a doctor’s order. There is no genuine issue of material fact as to the purpose or nature of Massengill’s use of the S.M.A.R.T. facility that needs to be resolved.
The third factor in the Schutkowski test is whether the contract was fairly entered into. Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining [**17] strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.” Milligan, 754 P.2d at 1066. Similar to the releases in Milligan, which involved an optional ski race, and Schutkowski, which involved sky diving, no evidence suggests that Massengill was unfairly pressured into signing the agreement or was deprived of the opportunity to understand its implications. In fact, after Massengill initially toured the facilities, he was given the Agreement and Release to take with him, which he filled out at home and returned three days later.
In determining that the Order Granting Defendant’s Motion for Summary Judgment should be considered under principles of contract law, we held that the last factor of the Schutkowski test is satisfied in this case. The intent of the parties was clearly expressed in clear and unambiguous language. [HN14] We interpret exculpatory clauses or releases using traditional contract principles, and consider the meaning of the document as a whole. Milligan, 754 P.2d at 1067. Just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the [**18] entire membership application evidences no other rational purpose for which it could have been intended.”
In a further effort to avoid the Agreement and Release, the Massengills present an argument that the Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 (Lexis 1999), creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity. The Massengills rely upon Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), and the distinction drawn in that case between primary assumption of risk and secondary assumption of risk. The thrust of this rather convoluted argument is that, if the conduct of the defendant comes within the category of secondary assumption of risk, a statutory duty is created by the language that preserves actions based on negligence. The Massengills then contend that the Agreement and Release cannot be enforced because it is contrary to the statutory duty. No authority is cited for that precise proposition, and we are satisfied that [HN15] the Recreation Safety Act does not foreclose [**19] the invocation of a contractual release or waiver for negligent conduct that is not released by the assignment of the inherent risk to the person participating in the sport or recreational opportunity under the statute. Indeed, the limited reach of the statute would suggest that a contractual release in addition to the statute would be prudent.
With respect to the claim of Kaylea Massengill for loss of consortium, her cause of action was included in the Order Granting Defendant’s Motion for Summary Judgment. She executed the same Agreement and Release that James Massengill signed. Furthermore, her claim for loss of consortium was derivative of James Massengill’s claim for injuries, and it fails when his claim fails. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1301 (Wyo. 1995); Boehm, 748 P.2d at 708.
The only pertinent issue in this case was whether the exculpatory clause should be held to violate public policy and not enforced for that reason. The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally [**20] thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order. The case [*1138] is correctly resolved as a matter of law under principles relating to contract, and the contractual language being clear and unambiguous, there are no genuine issues of material fact. The case is controlled by Schutkowski and the later cases that followed it. We affirm the district court’s Order Granting Defendant’s Motion for Summary Judgment.
Wyoming Recreational Safety Act
Posted: July 7, 2014 Filed under: Wyoming | Tags: assumption of the risk, Cause of action, equestrian, Equestrianism, Equus (genus), Horse, Recreation, Recreational Safety Act, Sport, Wyoming Leave a commentWyo. Stat. Ann. §§ 1-1-121 to 1-1-123
§ 1-1-121.Recreation Safety Act; short title.
This act shall be known and may be cited as the “Recreation Safety Act”.
§ 1-1-122. Definitions.
(a) As used in this act:
(i) “Inherent risk” with regard to any sport or recreational opportunity means those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity;
(ii) “Provider” means any person or governmental entity which for profit or otherwise, offers or conducts a sport or recreational opportunity. This act does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity;
(iii) “Sport or recreational opportunity” means commonly understood sporting activities including baseball, softball, football, soccer, basketball, swimming, hockey, dude ranching, nordic or alpine skiing, mountain climbing, river floating, hunting, fishing, backcountry trips, horseback riding and any other equine activity, snowmobiling and similar recreational opportunities;
(iv) “Equine activity” means:
(A) Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines;
(B) Any of the equine disciplines;
(C) Equine training or teaching activities, or both;
(D) Boarding equines;
(E) Riding, inspecting or evaluating an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect or evaluate the equine;
(F) Rides, trips, hunts or other equine activities of any type however informal or impromptu;
(G) Day use rental riding, riding associated with a dude ranch or riding associated with outfitted pack trips; and
(H) Placing or replacing horseshoes on an equine.
(v) Repealed by Laws 1996, ch. 78, § 2.
(vi) “This act” means W.S. 1-1-121 through 1-1-123.
§ 1-1-123. Assumption of risk.
(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.
(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.
(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.
Federal Interagency annual pass opens the gate to more than 2,000 recreation areas
Posted: July 4, 2014 Filed under: Uncategorized | Tags: Bureau of Land Management, July, National Park Service, Petroglyph National Monument, United States Fish and Wildlife Service, United States Forest Service, x, y, Yellowstone, z Leave a comment |
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Celebrate Independence in the great outdoors
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| Dear Park Enthusiast – This summer, why not flex your independence by experiencing all the treasures your national parks and wildlife areas have to offer, with the convenient annual Interagency pass?Buy the Interagency pass now and start using it this weekend**. For a single, one-time fee, you get a full year of access to more than 2,000 Federal recreation sites across the country managed by: • National Park Service Imagine hiking through a pristine meadow in Yellowstone, or visiting historic Gettysburg where President Lincoln delivered his famous address. Take your family to see designs and symbols carved onto volcanic rocks 700 years ago at Petroglyph National Monument. Visit just two or three recreation areas in the next 12 months and your Interagency pass will have paid for itself! Learn more online. If you have questions, call our Customer Service Representatives at |
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| Best wishes and Happy 4th of July – Kinsail Corporation Authorized Vendor of the National Parks / Interagency Annual Pass 1420 Beverly Road Suite 150 McLean VA 22101 P: (703) 994-4194 F: (518) 615-8422 service* If you buy your annual Interagency pass now (between today and July 31), it’s valid through July 31, 2015. ** If you request expedited shipping. |
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Nepal Mountaineering Association working on Himalayan issues
Posted: July 3, 2014 Filed under: Mountaineering | Tags: Climbing, Everest, Himalayas, International Climbing and Mountaineering Federation, Mount Everest, Mt. Everest, Nepal, Nepal Mountaineering Association, Recreation, Sherpa people, UIAA Leave a commentReport to the International Climbing and Mountaineering Federation (UIAA) shows efforts and hard work to make mountaineering a great sport and occupation
Ang Tshering Sherpa has filed a report with the UIAA with updates on the work the association is doing. The association has been around for years, however the avalanche on Mt. Everest this spring has prompted this new round of action on behalf of the association.
This is a very comprehensive report showing work on dozens of topics.
See Nepal Himalaya issues being addressed by the Nepal Mountaineering Association
What do you think? Leave a comment.
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New Minnesota statute attempted to eliminate releases and thankfully, might have made release law in MN better
Posted: July 2, 2014 Filed under: Minnesota, Release (pre-injury contract not to sue) | Tags: Greater than Ordinary Negligence, Gross, Intentional Negligence, Minnesota, Minor, Negligence, parent, Release, Right to Sue, Wanton, Wilful Leave a commentThankfully, law does not change anything and to some extent, helps to reinforce releases in Minnesota and releases for minors.
Several attempts were made this year to eliminate releases in Minnesota. The statute specifically includes recreational activities in its language. The result signed into law prevents releases from relieving liability for greater than ordinary negligence.
Even if the language is in the release the language is severable, which means it does not void the release, just the specific language.
However, the law does not change anything because greater than ordinary negligence, gross, will, wanton or intentional negligence, have never been covered by a release.
Here is the new statute.
JUDICIAL PROOF
CHAPTER 604. CIVIL LIABILITY
ACTIONS INVOLVING FAULT GENERALLY
Minn. Stat. § 604.055 (2014)
604.055 WAIVER OF LIABILITY FOR NEGLIGENT CONDUCT
Subdivision 1. Certain agreements are void and unenforceable. –An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence is against public policy and void and unenforceable.
The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from conduct that constitutes ordinary negligence or for risks that are inherent in a particular activity.
Subd. 2. Party or parties. –For the purposes of this section, “party” or “parties” includes a person, agent, servant, or employee of that party or parties, and includes a minor or another who is authorized to sign or accept the agreement on behalf of the minor.
Subd. 3. Other void and unenforceable agreements. –This section does not prevent a court from finding that an agreement is void and unenforceable as against public policy on other grounds or under other law.
Subd. 4. Nonapplication to certain claims. –This section does not apply to claims against the state pursuant to section 3.736 or a municipality pursuant to section 466.02.
HISTORY: 2013 c 118 s 1
NOTES:
The good news is the definition of a party to the release includes a “…minor or another who is authorized to sign or accept the agreement on behalf of the minor.” That adds more support to Minnesota law, which has allowed a parent to sign away a minor’s right to sue. See Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Greater interest is the rest of the definition of a party. “…accept the agreement on behalf of the minor.” Can a Scoutmaster or Little League coach who has been told by the minor’s parents you can sign stuff for my kid, release someone from liability? Legally, it seems like a stretch, but this is the best argument I’ve ever seen for such actions.
The bill appears to be a compromise from an attempt to eliminate releases totally and after the arguments, this was the result. Thank heavens!
This does one thing; it legislatively states that releases are OK. You can’t argue now, that releases are void in Minnesota for any legislative reason. And maybe someone other than a parent can sign away a minor’s right to sue.
What do you think? Leave a comment.
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Sustainable Summits: The International Mountain Conference on Environmental Practices
Posted: July 1, 2014 Filed under: Mountaineering | Tags: #AAC, American Alpine Club, American Mountaineering Center, Colorado, Denali, Golden, Mount Everest, Seven Summits, Sustainable Summits, UIAA Leave a commentThe American Alpine Club (AAC), in collaboration with Denali National Park will host this event at the Mountaineering Center in Golden Colorado July 20-23.
Registration for the Sustainable Summits Conference, July 20-24, is open to all individuals interested in mountain sustainability, as well as those seeking training and professional networking opportunities. For conference information and online registration go to http://www.americanalpineclub.org/p/sustainable_summits.
Contacts:
Roger Robinson, conference co-director sustainable.summits@gmail.com
Remy Rodriguez rrodriguez@americanalpineclub.org
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One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.
Posted: June 30, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana | Tags: 4-H, Equine Liability Statute, Horse, Horses, Indiana, statute, Whitley County 4-H Clubs Inc. Leave a commentHowever, the plaintiff in this case owned horses and participated as a volunteer in the activities. Equine liability statutes protect horses better than the horse owners.
Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Plaintiff: Teresa Perry
Defendant: Whitley County 4-H Clubs Inc.
Plaintiff Claims: injuries were caused by the 4-H Club‘s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn…
Defendant Defenses: Equine Activity Statute
Holding:
The plaintiff was a volunteer with the defendant 4-H Club serving on its Equine Advisory Board. She also owned seven horses. During an event, the plaintiff walked over to a child to instruct the child to move her horse because she was at risk of being injured. The plaintiff in the process was kicked by a horse.
The plaintiff sued. The trial court dismissed the case based on the Indiana Equine Activity Statute. This appeal followed.
Summary of the case
The court fist looked at its duties when interpreting a statute for the first time.
When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
The court then looked at the requirements of the statute and whether or not the defendant had met the requirements. First, the protection afforded by the statute does not apply unless at least one warning sign is posted on the premises.
…the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c).
The court found the signs were posted at all entrances to the horse barn and were clearly visible. However, there were no signs on the show barn where the incident occurred. However, the plaintiff admitted that she had seen the signs posted on the horse barn.
The next issue was whether or not the incident and injury the plaintiff suffered were an inherent risk of equine activities. (Really? I grew up with horses; being kicked happens…….a lot.) In this case, the plaintiff tried to argue the language in the statute did not cover the actual incident that caused her injury. Meaning the accident was not caused by an inherent risk but by negligence of the defendants.
Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
(5) who intentionally injured the participant.
The court’s analysis quasi reversed the plaintiff’s argument. If the injury was caused by an inherent risk of equine activities, then it would not matter if the defendant was negligent.
The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.”
The plaintiff’s injuries were due to an inherent risk of horses.
As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent.
Consequently, the court held the complaint was properly dismissed, and the defendant was not liable.
So Now What?
This is a great case; the statute worked. I now have to change my quote. Equine liability statutes are 100% effective. Since being passed no horse has been sued, but owners of horses are still being sued. And the statute protected one of them.
If you are subject to a statute that requires signs, post them everywhere. Post them in every location where people enter the premises. Post them on every building and every building entrance. Post them inside the building were spectators, and participants will see the signs. The signs are cheap compared to the cost of litigation.
Understand the statute and make sure you fulfill every aspect of the statute and cover all the requirements.
As this case points out, however, the statute still left a lot to lose a lawsuit over. Statutes are rarely written to provide 100% protection. Consequently, unless you want to litigate every word in the statute, use additional defenses.
1. Use a release. As pointed out in this case, if interpreted differently or if a sign had blown away, the best defense to this lawsuit would have been a release.
2. Educate the youth you are working with and the adults working with them. In this case, the adult was there because of her knowledge of the risks of the activity.
One point that stands out in this decision is the knowledge and experience of the plaintiff. It is hard for someone who owns seven horses to argue that getting kicked by a horse is not an inherent risk of horses.
Would this decision be different if the plaintiff had no knowledge or experience with horses?
What do you think? Leave a comment.
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Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Posted: June 30, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana, Legal Case | Tags: 4-H, Equine Liability Statute, Horses, Indiana, Whitley County 4-H Clubs Inc. Leave a commentPerry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.
No. 92A03-1002-CT-101
Court Of Appeals Of Indiana
931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
August 16, 2010, Decided
August 16, 2010, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.
COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.
ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.
JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.
OPINION BY: ROBB
OPINION
[*934] OPINION – FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.
Facts and Procedural History
The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).
On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.
In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.
The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:
14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.
15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.
16. The Equine Activities Act . . . is applicable to this case.
17. Being kicked by a horse is an inherent risk of equine activity.
18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.
Appellant’s App. at 5. Perry now appeals.
Discussion and Decision
I. Standard of Review
[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).
Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:
[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).
II. Equine Activity Statute
A. Warning Signs
Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.
Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.
The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.
1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.
B. [**11] Inherent Risk of Equine Activities
Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:
[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
[*939] (5) who intentionally [**13] injured the participant.
Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.
2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.
3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.
Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.
Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.
[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.
Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.
Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.
In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.
Conclusion
There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.
Affirmed.
FRIEDLANDER, [**20] J., and KIRSCH, J., concur.
Good advice but bad releases can be found at this website.
Posted: June 25, 2014 Filed under: Insurance, Release (pre-injury contract not to sue) | Tags: Assumption of risk, Business, K&K Insurance, Law, Lawyer, Release, Saddler, Saddler Sport Insurance, Sport Insurance, Waiver Leave a commentThe disclaimers at the bottom of the free documents are the most important part; you need YOUR attorney to write your release.
I check out this site for information I can pass on: Sadler Sports & Recreation Insurance. A couple of times a year, I pass on good information. At the same time, all websites (even this one) can pass on bad information and Sadler Sports & Recreation Insurance is no exception. They are offering free releases. Here is the disclaimer.
This is a SAMPLE WAIVER FORM only. Final wording should be as directed by the insured’s counsel, but must observe the principles represented within the above. This form provided courtesy of K&K Insurance Group.
The releases are from K&K Insurance Group. K&K is a great insurance company in the outdoor recreation industry. At the same time, by providing bad releases, they are creating their own claims.
The first release offered is a release for a parent to waive a minor’s claims. That only work in a few states. (See States that allow a parent to sign away a minor’s right to sue.) So in every other state, you need an assumption of risk form. This “release” is not that. In those few states that do accept a release to stop a minor’s claims, this release does not meet the requirements of two of the states.
Neither release has a jurisdiction and venue clause. That would allow the injured plaintiff to bring a suit and argue the lawsuit should be in a state where releases are not supported. (See States that do not Support the Use of a Release.) The adult release also includes a place for a parent to sign for a child. (???)
Find an attorney that knows what you do, understands release law and can write a release for you. If you want to print and hand the attorney, these releases (as a joke) do so. If the attorney uses them…..find another attorney.
See Sadler Sports & Recreation Insurance
What do you think? Leave a comment.
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Want to Maximize a Visit to Colorado? San Juan Mountain Guides can help!
Posted: June 24, 2014 Filed under: Colorado, Mountaineering | Tags: Alaska, Canyoning, Mountaineering, Peru, Rock climbing, San Juan, San Juan Mountain Guides, San Juan Mountains, SJMG, Via Ferrata, Washington, Weminuche Wilderness Leave a comment
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Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.
Posted: June 23, 2014 Filed under: Florida, Release (pre-injury contract not to sue), Scuba Diving | Tags: Inc., Islamorada Asset Management, Islamorada Florida, Key Dives, Release, scuba diving, Shallow Dive, Summary judgment, Wreck Dive, Wreck Diving 1 CommentThis case is a mess, mainly because the defendant’s risk management and release “program” is a mess. Each level of scuba dive required a different release at this dive center, the basic dive releases were so badly written, when the next level of dive was done without a release, the first release failed.
Diodato, etc., vs. Islamorada Asset Management, Inc., etc., et al., 2014 Fla. App. LEXIS 6254
Date of the Decision:
Plaintiff: Dominic Diodato, as personal representative of the estate of his late wife, Aviva Diodato
Defendant: Islamorada Asset Management, Inc., etc., et al.
Plaintiff Claims:
Defendant Defenses: Release
Holding: for the plaintiff
The plaintiff is the husband and the estate of the deceased wife. The husband and wife traveled from Arizona to go diving with the defendant in Florida. This was their second trip to the defendant to dive. The first dive of this trip was called a shallow reef dive. The next day the husband and wife were to do a more advanced dive, a wreck or deep water dive. At the beginning of the second dive, the wife died.
The plaintiff’s signed a release on their first trip to the defendant’s dive operation in 2009. Another release was signed in 2010 for the shallow reef or first dive of the second trip. A third release was to be signed prior to the second dive of the second trip the wreck dive. The dive operation had a “standard practice” of having different releases signed before each dive or level of dive. The dive instructor failed to follow the standard practice and secure the signatures on the third release.
The plaintiff sued, and the trial court dismissed the case based on the releases, both the 2009 and 2010 releases. The plaintiff appealed.
Summary of the case
The court sets out its arguments quit quickly in its review of the facts of the case.
The trial court rejected Mr. Diodato’s argument and evidence that the dive operators had failed to follow their own standard practice of procuring a different form of release for the more advanced dive and the boat trip to be undertaken on the day of the tragedy. [Emphasize added]
This is a very interesting statement by the courts. The defendant had a series of procedures or “standard practice” which the court found the defendant had failed to follow. Failing to follow your standard practice was of concern to the court.
The second issue was the first release signed did not cover the activities on the second dive. That alone was enough for the court to overturn the trial court’s decision.
Applying well-settled Florida’s law disfavoring and narrowly construing exculpatory clauses, we reverse and remand for further proceedings. The scope and duration of the “activity” to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment.
A release needs to have information that relates the risk to the signor that he or she is agreeing to. Here the information in the first two releases was not enough to support a defense for the third activity.
“Scope” would reasonably address the hazardous activity which the releasor has paid the releasee to allow him or her to undertake, and which the releasee insists must be at the releasor’s own risk if the activity is to proceed. “Term” would reasonably address the anticipated duration of the hazardous activity for which the release has been required and obtained. The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by the releasor when compared to another hazardous activity.
Rarely has this been an issue in past decisions in Florida or other states. However, this court beat the issue continuously.
A pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water cave dive or offshore wreck dive, for example. The pre-activity “knowledge review” described in the instructor’s testimony in this case was plainly calculated to communicate the risk of an advanced activity to the participant about to be asked to initial and sign a form of release.
Finally, the court then looked at the release and found that the activity the plaintiff’s undertakings were not defined in the release. “’Activity’ is not defined in the releases signed by Mrs. Diodato….” The court used this analysis to state that the level of risk described in the signed release was different from the level of risk of the dive the plaintiff died doing and as such, it could be argued that the plaintiff did not want to assume or recognize that level of risk.
Instead, the defendants’ April 15 form recognized a different activity and level of risk, expressly defining this activity as an “Excursion” and including within it the hazards of scuba diving as well as “injuries occurring while getting on or off a boat, and other perils of the sea,” a category of harm not addressed in the signed releases.
The court also found that because there was an opportunity in the unsigned release to purchase insurance, if this was a greater risk than the plaintiff might have wanted to accept or a risk the plaintiff wanted to insure.
And because the defendants’ prescribed form was not presented or signed, we will never know whether Mrs. Diodato might have inquired about diver accident insurance, or obtained it, as contemplated by the separate PADI form.
Next the court took on the releases themselves. The releases were only good for one year. The releases also had boxes to initial which the plaintiff’s failed to initial. The quote from the decision below is very telling.
It was the practice of Key Dives to require their customers to sign a release immediately prior to a day’s dive. Each of the Diodatos signed a release in favor of Key Dives, and those connected with Key Dives, on August 29, 2009. On the reverse side of the re-leases, they initialed boxes stating, “[t]his release is valid for one year from the date of this release.” On April 14, 2010, again before a dive, the Diodatos signed other releases; this time they did not initial the box providing for the one-year operative period. They dove that day. On the morning of the April 15, 2010, dive, the dive fatal to Aviva, the Diodatos were late in arriving, and did not sign a release.
The court pointed every failing in this operation and its release, to support its decision. Then the court lays out this bombshell, which honestly; I hope is a mistake.
This final dive was to be a wreck dive to a ship called the Eagle. It was to be an advanced open water dive, a dive for which; according to the Plaintiff, dive industry standards dictated a particular form of release must be used. [Emphasize added]
The dive industry is telling dive operators what releases to be used. I would have brought the dive industry in as a third party defendant and let them pick up the tab for some of this mess.
So Now What?
This decision can also be used as a checklist of what not to do.
First don’t make your procedures so difficult that you can easily screw them up. In this case, each successive series of releases just created openings for a release to fail.
Write a release. Write a release to cover every possible risk. In this case, a release was signed for an easy activity which did not outline the risks of the riskier activities. That is just a waste of paper.
What if on an easy dive, an unexpected storm rolls in that turns the dive into a nightmare. A shallow water dive in the keys near coral can shred divers, making getting into the boat a gymnastic event and provide no place to hide in or out of the water. Are your weather forecasting skills so great that you make sure easy dives do not escalate in risk. Rather than not diving cover the risks with a release.
Contracts can last forever. Most mortgages are for thirty years, and a mortgage is a contract. Don’t create a release that, in and of itself, is limited. Here the releases were only good for one year. Write your release so it is good forever. Don’t give the plaintiff away to sue you.
If the plaintiff signed a release, limited to one year, on January 1, and then was also injured on January 1. The plaintiff would only have to wait until January 2nd of the next year to file a lawsuit to eliminate the release as a defense.
You don’t need initials. You need a signature, and you should have a date. Initials are only discussed in releases when someone fails to initial something, and the court points it out. On top of that it just adds time to the entire process. Instead of checking each release for a signature date and other information you may collect, you have to check for a signature, date and each box that may need to be initialed.
You have to have a well-written, properly written release for your operation, your state and your risks. That can be a complicated document. However, don’t overly complicate your operation and in this case eliminate a defense by creating too many standards, following bad advice and not even getting signatures on the documents.
If you need a well-written release, email or call me!
What do you think? Leave a comment.
 James H. “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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Want to Volunteer for the USA Pro Challenge, sign up Now!
Posted: June 20, 2014 Filed under: Colorado, Cycling | Tags: Aspen, Bicycle Racing, Colorado, Colorado Springs, Cycling, Denver, Monarch Mountain, USA Pro Challenge, Volunteer Leave a comment
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Colorado Outdoor Recreation Resource Partnership meeting Friday: Confluence of Oil & Gas Development and Recreation
Posted: June 19, 2014 Filed under: Uncategorized | Tags: Bureau of Land Management, Colorado, Colorado Outdoor Recreation Resource Partnership, CORRP, Denver, Oil & Gas, Outdoor recreation, Recreation, United States Forest Service Leave a comment
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You run a guide service. Should you refer travel insurance to your clients?
Posted: June 18, 2014 Filed under: Insurance, Mountaineering | Tags: Everest, Financial Services, Health insurance, Insurance, Insurance policy, Life Insurance, Sherpa, Travel Guard, Travel insurance, TravelEx, Whole life insurance Leave a commentYes, however, you need to understand, and probably communicate to your clients that travel insurance is extremely limited for outdoor recreation activities.
Travel insurance was created for European vacations. You booked a 12-day trip to Europe. If you got sick, or the bus, you were traveling on died, and you came home on day eight, then your travel insurance sent you a check for 1/3 of what you spent except your trip. It was simple math and very simple underwriting defined by the travel insurance policies. Europe was like the US, and the risks were known.
The UK added to travel insurance because its health care system did not extend beyond its boundaries. So UK travelers leaving the UK have always bought travel health insurance. Again, this is simple underwriting: travelers are normally in good health and so the only real risk was an accident while traveling.
Everest Base camp does not really fit into the underwriting of either of those types of polices, yet the policies have not changed since they were first written.
Understanding Policies
First, there are two types of travel insurance that are very different and both called travel insurance. One covers medical and sometimes evacuation home or at least to a local hospital when you are outside of your home country. The second reimburses you for costs if your trip is canceled (before departure) or interrupted (after the trip starts).
Most travel medical policies are fairly easy to understand and read. They have a specific limit on how much they will pay, and a specific time frame where your injury and medical services must occur. As I stated earlier, I’ve found the best ones are those sold for UK travelers. I’ve even purchased some policies that paid for rescue up to 20,000 feet.
Travel Medical insurance policies are great to have because of the limits that HMO’s and PPO’s my place on services outside of the US. When in doubt spend the money and buy a policy if you are traveling outside of the US>
Travel Insurance Policies
Travel insurance policies are also easy to understand if you take the time to read the policy. Most policies are online and easy to find. If you are traveling for an outdoor recreation trip, you must read the policies.
And by policies, I mean the actual policy, not the lengthy description listed on the website. Most travel insurance companies have their policy online if you dig enough. If not call or email the company, tell them you are getting ready to travel in a few months and want to see a copy of their policy. Tell them you have read the coverage review on the website, but you want more information. TravelEx, a leading company calls their policy “Description of Coverage.”
As an example, the policies sold by online sites that you are booking your air or hotel through are very specific and will only cover your air or hotel – nothing more. A sleeping bag or tents are not either of those.
Travel insurance policies are very different from other insurance policies you may purchase in the US. The policies are written so absolutely only what is listed is covered with no exceptions. They are written to say for $XX you get $XX paid back if something listed in the policy occurs. If it is not listed it is not covered.
Many policies will have a grace period or cancellation period. You can purchase the policy and then have 10-15 days to cancel the policy if it is not what you want.
Travel Insurance policies may have a small medical benefit. However, this is not insurance. Meaning after you have paid the medical bill you can file a claim and ask to be reimbursed for the amount of the bill up to the limits of the policy. The medical benefit is usually around $10,000 so if you have a large medical bill you are going to eat the rest and will only be paid the $10K once you show the insurance company paid receipts.
Any claim will only be paid by including your receipts with the claim. So keep every receipt. If you are having a hard time tracking your receipts use your phone or camera to photograph the receipts. Several good apps are also available to track receipts. Again if you don’t have receipts, you won’t receive any money from the insurance company.
Claims
Claims are paid if the cause of your claim fits squarely in the list of coverage. As an example, this is the list of coverage’s from a common travel insurance policy.
Trip Cancellation and Interruption Covered Reasons Coverage is provided for the following unforeseeable events or their consequences, which occur while coverage is, in effect, under this Policy if there is a change in plans by you, a Family Member traveling with you, or Traveling Companion:
1. Sickness, Injury or death of you or your Traveling Companion and/or you or your Traveling Companion’s Family Member or Business Partner. The Sickness must commence while coverage is in effect, require the examination of a Physician, in person, at the time of Trip Cancellation or Trip Interruption and, in the written opinion of the treating Physician, be so disabling as to prevent you from taking or continuing your Covered Trip.
2. Common Carrier delays resulting from inclement weather, or mechanical breakdown or organized labor strikes that affect public transportation;
3. arrangements canceled by an airline, cruise line, motor coach company, or tour operator, resulting from inclement weather, mechanical breakdown or organized labor strikes that affect public transportation.
4. arrangements canceled by a tour operator, cruise line, airline, rental car company, hotel, condominium, railroad, motor coach company, or other supplier of travel services, resulting from Financial Insolvency;
5. being directly involved in a documented traffic accident while en route to departure;
6. being hijacked, quarantined, required to serve on a jury, or required by a court order to appear as a witness in a legal action, provided you, Family Member traveling with you or a Traveling Companion is not 1) a party to the legal action, or 2) appearing as a law enforcement officer;
7. your Home made uninhabitable by fire, flood, volcano, earthquake, hurricane or other natural disaster;
8. your destination made uninhabitable by fire, flood, volcano, earthquake, hurricane or other natural disaster;
9. mandatory evacuation ordered by local authorities at your destination due to hurricane or other natural disaster;
10. being called into active military service to provide aid or relief in the event of a natural disaster;
11. a documented theft of passports or visas;
12. a Terrorist Act which occurs in your departure city or in a city which is a scheduled destination for your Covered Trip provided the Terrorist Act occurs within 30 days of the Scheduled Departure Date for your Covered Trip or during your Covered Trip;
13. a cancellation of your Covered Trip if your arrival on the Covered Trip is delayed and causes you to lose 50% or more of the scheduled Covered Trip duration due to the reasons covered under the Covered Trip Delay Benefit;
14. a transfer of employment of 250 miles or more;
15. your involuntary termination of employment or layoff and was not under your control. You must have been continuously employed with the same employer for 1 year prior to the termination or layoff. This provision is not applicable to temporary employment, independent contractors or self-employed persons;
16. your host at destination is hospitalized or dies, provided you made previous arrangements to stay at the host’s personal residence during the Covered Trip.
If you claim does not fit within one of the 16 listed above claims you do not have a chance. The next issue then is to look at your claim and see if it fits the claim you have identified perfectly. The language of the coverage list is defined in the policy in preceding paragraphs.
For Example, let’s look at the Everest season ending this year.
You might first think that if you bought a policy and could not climb Mount Everest this year because of the deaths and closing of the ice fall you would have a claim under paragraph 2, “organized labor strikes.” However, I don’t think that would qualify because Sherpa’s are not common carriers nor are they public transportation. Common carriers are airlines, bus lines, etc., and I doubt much in Nepal except the airline would qualify. Public transportation is like your local city bus service…..which has not made to the south side base camp yet.
Paragraph 3 would not work for about the same reasons.
Paragraph 8 may qualify. “your destination made uninhabitable by fire, flood, volcano, earthquake, hurricane or other natural disaster” However, the top of Mt. Everest, your destination was fine; the route to your destination was destroyed.
Paragraph 9 would work if the Nepalese government had closed base camp or Everest from the south side, however, all news reports stated just the opposite, the Nepalese government worked hard to keep the Sherpa’s on the mountain and working.
As you can see, the language of the policy fits European vacations, the issues and claims the policies were originally written for.
Another policy My Travel Guard had this list of claims:
The Company will reimburse the Insured a benefit, up to the Maximum Limit shown in the Schedule or Declarations Page if an Insured cancels his/her Trip or is unable to continue on his/her Trip due to any of the following Unforeseen events:
(a) Sickness, Injury or death of an Insured, Family Member, Traveling Companion or Business Partner;
(1) Sickness or Injury of an Insured, Traveling Companion or Family Member traveling with the Insured must be so disabling as to reasonably cause a Trip to be canceled or interrupted or which results in medically imposed restrictions as certified by a Physician at the time of Loss preventing continued participation in the Trip;
(2) Sickness or Injury of a Family Member not traveling with the Insured Such disability must be so disabling as to reasonably cause a Trip to be canceled or interrupted and must be certified by a Physician;
(3) Sickness or Injury of the Business Partner must be so disabling as to reasonably cause the Insured to cancel or interrupt the Trip to assume daily management of the business. Such disability must be certified by a Physician;
(b) Inclement Weather causing delay or cancellation of travel;
(c) Strike causing complete cessation of travel services at the point of departure or Destination;
(d) the Insured’s Primary Residence or Destination being made Uninhabitable or Inaccessible by Natural Disaster, vandalism or burglary;
(e) the Insured or Traveling Companion is hijacked, quarantined, subpoenaed or required to serve on a jury;
(f) the Insured or Traveling Companion is called to active military service or military leave is revoked or reassigned.
The following only apply if the Additional Unforeseen Events Upgrade is purchased:
(a) Sickness, Injury, death or hospitalization of the Insured’s Host at Destination. A Physician must certify the Sickness or Injury;
(b) Financial Default of an airline, Cruise line or tour operator provided the Financial Default occurs more than 14 days following an Insured’s effective date for the Trip Cancellation or Trip Interruption Benefits. There is no coverage for the Financial Default of any person, organization, agency, or firm from whom the Insured purchased travel arrangements supplied by others;
(c) a Terrorist Incident in a City listed on the Insured’s itinerary within 30 days of the Insured’s scheduled arrival;
(d) the Insured or Traveling Companion is involuntarily terminated or laid off through no fault of his or her own provided that he or she has been an active employee for the same employer for at least 1 year. Termination must occur following the effective date of coverage. This provision is not applicable to temporary employment, seasonal employment, independent contractors or self-employed persons;
(e) the Insured and/or Traveling Companion is directly involved in or delayed due to an traffic accident, substantiated by a police report, while en route to the Insured’s Destination;
(f) the Insured or a Traveling Companion being the victim of a Felonious Assault within 10 days prior to the Departure Date. No coverage is provided for Felonious Assault committed by another Insured, Family Member, Traveling Companion or Traveling Companion’s Family Member;
(g) mechanical/equipment failure of a Common Carrier that occurs on a scheduled Trip and causes complete cessation of the Insured’s travel and results in a Loss of 50% of the Insured’s Trip length;
(h) the Insured or Traveling Companion is required to work during his/her scheduled Trip. He/she must provide proof of requirement to work, such as a notarized statement signed by an officer of his/her employer. In the situation of self-employment, proof of self-employment and a notarized statement confirming that the Insured is unable to travel due to his or her job obligations will be required;
(i) the Insured or Traveling Companion is directly involved in a merger, acquisition, government required product recall or bankruptcy proceedings and must be currently employed by the company that is involved in said event;
(j) the Insured’s or Traveling Companion’s company is deemed to be unsuitable for business due to burglary or Natural Disaster and the Insured or Traveling Companion is directly involved as a Key Employee of the disaster recovery team.
Here paragraph c might qualify, if you can call the actions of the Sherpa’s a strike. “Strike causing complete cessation of travel services at the point of departure or Destination” However, once you read the definition of a strike as defined in the policy, it will not qualify.
“Strike” means a stoppage of work which:
(a) is announced, organized, and sanctioned by a labor union; and
(b) interferes with the normal departure and arrival of a Common Carrier.
Again, Sherpa’s are not common carriers and not recognized by any labor union.
After reading all the covered claims, I don’t think any would apply to the Everest disaster this year.
So
If you are looking for insurance coverage for an outdoor recreation trip start with what you already have and then try to fill in the gaps with what you can buy.
Your homeowner’s/condo/renter’s insurance may provide coverage for your gear while traveling. That coverage is usually only for it being total loss, not just delayed. You may have additional protection so check this policy first.
The credit cards you paid for your trip with, may provide coverage that a lot of travel policies cover.
Go over your health insurance policy with a fine-tooth comb. Make sure you understand what coverage you have and do not have. Again, buy a policy to fill in the gaps. Compare the coverage on the travel insurance policies to the coverage provided by a travel medical insurance policy. Most travel medical insurance policies have a broader coverage.
Keep track of all of your receipts. Without receipts, you don’t have a claim. Keep a diary tracking date and times because you may have to prove what happened when. You might be able to job your memory with your photographs also.
The risk of outdoor recreation trips is greater than just the chance of getting hurt or injured on the water, under the ground or on the mountain. You may never get the chance to try.
What do you think? Leave a comment.
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Copyright 2014 Recreation Law (720) 334-8529
Call or Email me if you need legal services around these issues.
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Colorado Scenic and Historic Byways 25th Anniversary Conference on June 19 & 20, 2014, along the Peak to Peak Scenic Byway, at the Ameristar Convention Center in Black Hawk, Colorado.
Posted: June 17, 2014 Filed under: Youth Camps, Zip Line | Tags: Blackhawk, Byways, Colorado, Colorado Byways Conference, Denver, National Scenic Byway Leave a commentMore information: Colorado Scenic and Historic Byways 25th Anniversary — CDOT
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Colorado Scenic and Historic Byways 25th Anniversary …25th Anniversary Conference June 19 & 20, 2014 Black Hawk, Colorado Conference Registration & Sponsorship Conference Agenda |
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Byways.Elevated.
June 19 – 20th
Colorado’s Byways 25th Anniversary
AGENDA
THURSDAY – June 19
3:00 – 4:30 Conference Registration, Reception, & Check-In Entertainment by Bear Limvere
5:00 – 6:00 Keynote Speaker -Joe Calhoon, Author of
The One Hour Plan for Growth
6:00 – 7:30 Welcome & Awards Dinner FRIDAY – June 20
7:00 – 8:30
9:00 – 9:45
Breakfast & Opening Remarks, Special Awards Navigating the Road to Private Funding
Jeffery Pryor, Ed.D., CEO of Pathfinder Solutions
1st Breakout Sessions
• Keeping Your Byway Relevant and Moving into the Future Panel – Scott Brutjen, Bob Marshall & Kelli Hepler
• Keeping the Scenery in Scenic Byways
Don Bruns & Karla Rogers
• The Benefits of Colorado Byways – Shelby Sommer & Matt Goebel
2nd Breakout Sessions
• Shaping Your Board into Byway Leaders – Janine Vanderburg
• Driving Your Byway Message Straight to the Traveler
Kelly Barbello
• #Savvy Social Media Panel – Bobby Weidmann, Angus Shee
& Allison Bejarano
Luncheon with Guest Presentation – Hokkaido, Japan Byways
Colorado Meadows (Photo credit: QualityFrog)
3rd Breakout Sessions
• Latest Trends in Keeping Our Historic Buildings – Patrick Ideman
• Byways and Your Belly! – Judy Walden
• Securing Colorado Byways: ‘GIS Project’ – Charlotte Bumgarner
& Yvonne Barnes
4th Breakout Sessions
• Gaining Legislative Support for Colorado Byways – Roger Wilson
• Engaging the Youth in Byways – Michelle Pearson
• Healthy Highways – Judy Walden & Gaylene Ore
ColoradoGives.org –Dana Rinderknecht, Community First Foundation
The former gold mining camp of Black Hawk, Colorado (Photo credit: Wikipedia)
Closing Remarks
Lenore Bates, Program Manager
Colorado Scenic and Historic Byways
CDOT | 4201 E Arkansas Ave, Shumate Bldg | Denver CO 80222
P 303.757.9786 | F 303.757.9727
Lenore.Batess | www .coloradobyways.org
Colorado Byways connect tourists, preservationists and local communities.
Agenda052914.pdf
Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR. Court finds (or confuses) both no duty owed to prove negligence and assumption of the risk on the part of the deceased.
Posted: June 16, 2014 Filed under: Assumption of the Risk, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, drowning, Limited liability company, Livery, Louisiana, Tubing Leave a commentLouisiana is one state that does not allow the use of a release. (See States that do not Support the Use of a Release.) This limits the possible defenses in LA.
Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Date of the Decision: March 23, 2012
Plaintiff: Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children
Defendant: Tiki Tubing, LLC and Abc Insurance Company
Plaintiff Claims: negligence, gross negligence, duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. Also failure of the employees of the defendant to perform CPR properly.
Defendant Defenses:
Holding: for the defendant tubing livery
The plaintiff is the husband of the deceased and mother of their children.
The defendant was a tubing rental (livery) operation on the Amite River in Louisiana. For the fee the defendant provides parking, a bus ride to the put in, tubes and a beach entry and exit. The Amite River is advertised by the defendant on it’s website at 1” to 3” deep with 6”-8” holes. The river is slow moving and smooth.
The defendant also states “Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The defendant provides life jackets free of charge however customers are not required to wear them. No one was aware of a prior drowning on the river. No employees of the defendant were trained in life saving or first aid or CPR.
The deceased was accompanied by two other companions. One of the three printed the other names on the release. The deceased did not sign the release. The three were also given safety instructions.
The men started leaving their tubes and swimming downstream for a short distance before waiting for the current to bring their tube to them. At some point the deceased went under the surface and did not come up. Eventually an employee found the deceased and got him to the surface.
A companion started CPR and was assisted by four other people including some employees of the defendant.
The plaintiff filed suit which was dismissed after the defendant filed a motion for summary judgment. The plaintiff appealed.
Summary of the case
The court outlined the plaintiff’s claims as:
Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River.
The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
Under Louisiana law a tort is defined as:
The elements of a cause of action in tort are fault, causation, and damage. The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law.
The court found that to prove her case the plaintiff must prove:
(1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise.
Failure to prove one element defeats the plaintiff’s claims.
The court first looked at whether or not the defendant had control over the river to be liable for it. The court defines this as the defendant having custody and control over the river. To determine whether the defendant had the requisite custody and control the court held it had to consider:
(1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” This court has held that a state-owned river cannot be in the custody of a landowner.
Even if the plaintiff could prove the defendant’s “custody” of the river, the plaintiff would also have to prove that the river section at issue was defective.
This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective. Further, “variations in water depth within natural swimming areas are standard.” Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
The conditions of the river at the time of the decedents drowning were all conditions that under Louisiana law were inherent risks and thus assumed by the deceased.
The court next looked the risks of tubing.
Tubing has been defined as an activity that is obviously and inherently dangerous. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. When a risk is obvious, there is no duty to warn or protect against it.
The court concluded the deceased voluntarily left this tube to swim in the river without a life jacket.
The court then looked at the issue of failure to perform CPR properly. Under Louisiana law if a person voluntarily undertakes a “task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner.”
Although the plaintiff’s expert witness stated that CPR was performed improperly, no one was able to claim that the actions of the defendant employees were “unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.”
The court found since no one could point that a specific employee or employees had done something wrong in performing CPR then that claim must also fail.
The court upheld the trial courts motion for summary judgment with this statement.” Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death.”
So Now What?
Louisiana law came from the Napoleonic code. Consequently the laws in Louisiana are generally different, other than the protections afforded by the US constitution. Louisiana does not allow the use of a release to stop claims.
C.C. Art. 2004 (2005)
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
See States that do not Support the Use of a Release.
Here the court seemed to combine the issue to find the defendant owed no duty to the deceased and the deceased assumed the risk of the activity which lead to his death, without using the terms specifically.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2014 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Twitter: RecreationLaw
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Facebook Page: Outdoor Recreation & Adventure Travel Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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National Get Outdoors Day Denver needs a few more Volunteers.
Posted: June 13, 2014 Filed under: Uncategorized | Tags: Colorado, Denver, Get Outdoors Day, National Get Outdoors Day, Outdoor recreation Leave a comment
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Great photo essay of a Ropes course showing everyone with helmets designed to protect only from above.
Posted: June 12, 2014 Filed under: Challenge or Ropes Course | Tags: challenge course, Climb, Climbing Helmet, Granville, helmet, Ohio, Recreation, Rock climbing, Ropes course, Tree 3 CommentsClimbing helmets only protect from drops. What falls from the sky?
A photographer did a great job of showing a group of people having a great time on a rope’s course in Granville, Ohio. The course and setting are beautiful. Everyone is wearing helmets. All the helmets in the photographs are climbing helmets.
Climbing helmets were designed for rock climbing. They were designed to protect you from a rock falling on your head. They are also tested to make sure if you fall and wedge your head in a crack because of your helmet the helmet will come off.
The only things I can see in the photographs that might fall on the people’s heads are trees. If a whole tree falls on you, there is not much you can do. Dependent upon the size of the tree limb, the helmet may or may not help you much.
But why? Why do you wear a helmet on a rope’s course?
Based on this, shouldn’t all groups hiking in the woods wear helmets?
See Common Ground Canopy Tours take you into the treetops near Oberlin, with zip-lines, sky bridges and more (photo gallery)
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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ANSI, ASTM, PRCA, ACCT & NSAA a mess of acronyms that are fighting each other, taking your industry down and wasting money.
Posted: June 11, 2014 Filed under: Challenge or Ropes Course, Zip Line | Tags: ACCT, American National Standards Institute, American Society of Testing and Materials, ANSI, Association for Challenge Course Technology, ASTM, ASTM International, challenge course, Industry Standards, National Ski Area Association, NSAA, PRCA, Professional Ropes Course Association, Ropes course, Standards, Trade association Leave a commentHow much money could have been put into promoting the industry,educating the members and creating great opportunities? Millions I bet.
The PRCA, (Professional Ropes Course Association) recently announced that they had received approval from ANSI (American National Standards Institute) for its ropes or challenge course standards. The ACCT (Association for Challenge Course Technology) has appealed the issuance of the approval. (See ANSI/PRCA American National Standard).Wasting more time and money, in my opinion.
In the meantime, the NSAA (National Ski Area Association) received ASTM (American Society of Testing and Materials) approval for their standards. See ASTM Committee Approves Standard For Aerial Adventure Courses
I have no horses in this race; I have nothing to gain and more to lose with these comments. However, someone has to put it out there again, because the amount of money being wasted is ridiculous. So here goes…..again. (For a prior commentary about this feud see Stop Feuding, I doubt, move forward anyway; I think you can.)
What’s it all mean?
First the “standards” granting organizations.
ANSI “allows” organizations that meet its requirements to become standards granting organizations. One such organization is the ASTM. However, just because ASTM is granted the “opportunity” to create standards under the ANSI banner it does not mean that ANSI standards are better, more important or more controlling than ASTM.
ACCT was started 19 years ago to write standards. However, in my opinion, it was more of a good buddy club and the creation of the standards did not follow any known or legally acceptable way of creating them. PRCA was started in 2003 because ACCT would not let them be the “whatever name” to do something with ropes courses or something. Honestly, I’m not 100% clear on this, and I don’t really care.
NSAA is 52 years old and has been working with ANSI and ASTM for decades. The standards for operating ski lifts are ANSI standards and the standards for the rest of the ski industry such as skis, bindings, etc., are ASTM standards. NSAA has one employee who knows more about ANSI and ASTM than I would ever want to know, and consequently, they are fast efficient and done right.
I am a member of the ASTM and on the standards committee for ropes courses, but not active and have not voted for any of the NSAAASTM, standards.
Still with me or have all the acronyms done you in.
Current Status
Right now, there are two organizations that have created standards for the ropes’ course industry, PRCA and NSAAthat follow the procedures and practice’s generally accepted in court for proof of standards by an organization. NSAA has opted to write its standards through the ASTM and the PRCA through ANSI.
ACCT is left out of the mix right now, so that organization is fighting PRCA’s ANSI standards. However, what I find comical, and indicative of the reasons for much of the wasted money in the industry, the ACCT has ignored the NSAA. (PRCA also for that matter.)
Speculation here, but don’t you think that if ACCT seriously thought only its standards were acceptable they would be appealing the NSAA’s standards created under the ASTM.
This leads me to believe that the appeal of the PRCA’s ANSI standards has nothing to do with the standards, just with the PRCA. (This is the third appeal of the PRCA’s ANSI standards; the ACCT lost the first two.)
By that I mean there is more bad blood here than in a blood bank with no power for a month.
So Legally what does that Mean?
Standards are the lowest acceptable level of doing something, which is presented in court to prove someone either met the standard or did not meet the standard of care. The standard of care is the measurement against which the jury determines whether you had a duty and then breached that duty to someone.
If you own a ropes course and someone is injured on the ropes course, the plaintiff now has several different ways to prove that you were negligent (breached the standard of care). Meaning your ropes course was not built correctly, or you operated the course incorrectly.)
First, there are the ACCT standards; however, those can easily be ignored at this point because they have not been approved by either the ANSI or the ASTM. The ACCT standards are getting better, I’ve been told, but basically, they were created in a way that creates credibility issues. That does not mean that they can’t be a way to prove you are negligent.
So now the plaintiff can argue that you failed to meet the PRCA or NSAA standards. If there is a conflict between the two, then the plaintiff has found the stick to beat more money out of you and your insurance company. (And the last thing this industry needs is a way to give more money away. (See: Payouts in Outdoor Recreation.)
Legal Advice (worth what you pay for it)
If you came to me and asked for advice about this situation this is what I recommend.
1. Today, get a copy of the PRCA and NSAA (ANSI and ASTM) standards and make sure you meet those standards. Yes, both sets. If there is a conflict between the two, justify why you have adopted one over the other in writing now, prior to a problem.
2. Every year have someone new come see your course. They don’t have to have some designation on their wall, unless it says architect or engineer (see below!). They should have experience to look at your course and your operation and make sure you are not making mistakes. Maybe trade off. You go to their course, and they come to your course.
a. Don’t have them give you a report, which is just proof you are negligent.
b. Don’t tell them why you do something, unless they ask.
c. Listen, listen to everything they suggest, ask questions and then see what you need to do.
3. Every couple of years have an engineer, architect, or contractor came out and look at your course. These are the people who know how courses should be built and have the education and experience to make sure it was built correctly and is still holding together.
a. Someone with 12 years in the industry may be able to tell you the testing strength of a bolt and whether the bolt and whatever it is attached to are working still. However, that knowledge is defeated with a degree from a college that says engineer or architect.
Pay attention, (If nothing else for the laughs.) and make sure you know what is going on because you as a ropes course owner or manager are the person that is going to take the beatings and suffer the most when the organizations created to support you spend your money fighting each other.
Good luck.
If nothing else I should get a plug for explaining all the acronyms in the industry!
For more articles on Ropes Courses see:
$400,000 challenge course settlement for shattered ankle http://rec-law.us/1lk77Q7
Architects, Engineers and Recreation, we need the first two, to be successful in the second http://rec-law.us/1gOSNeT
Assumption of the risk is used to defeat a claim for injuries on a ropes course http://rec-law.us/SDZlBt
Based on the article yes there was going to be a lawsuit http://rec-law.us/16JD0p3
Plaintiff raised argument in work/team building situation that they were forced to sign release http://rec-law.us/XiKRug
Plaintiff uses standards of ACCT to cost defendant $4.7 million http://rec-law.us/11UdbEn
Sad, Arizona school insurance no longer covering ropes courses. http://rec-law.us/1m5AhAN
The standard of care for a ropes or challenge course changes based on who is running it and who is using it (30) http://rec-law.us/L2tupe
When did journalism turn from telling a good factual story to trying to place blame for an accident? http://rec-law.us/1cNrxMv
What do you think? Leave a comment.
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Copyright 2014 Recreation Law (720) 334-8529
Call or Email me if you need legal services around these issues.
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What do most attorneys think of extreme sports? ABA article provides some idea of their thinking.
Posted: June 10, 2014 Filed under: Racing, Release (pre-injury contract not to sue), Sports | Tags: ABA, American Bar Association, Assumption of risk, Death Waiver, Extreme Sports, Obstacle Course, Plaintiff, Release, Spartan, Sport, Tough Mudder, Waiver Leave a commentHowever, even the American Bar Association (ABA) article is almost evenly written. What it does is bring up additional way’s plaintiff’s attorneys are attacking releases. It is well worth the read.
Here are some interesting quotes from the article.
However, unlike in other sports, the inherent risks aren’t always obvious; indeed, they are often intentionally magnified to titillate participants and crowds. This pushes the new sport somewhat outside the traditional framework of negligence and assumption of risk.
There seems to be a theory that the inherent risks are part of the necessity of a release. I’m not sure I agree, but I always suggest you include the risks, inherent and otherwise in your release.
Indeed, Tough Mudder racers often brag about having “survived” the event after signing what they like to call the “death waiver,” essentially a catchy phrase for any liability waiver that encompasses death. Obstacle course racing companies routinely tout the fact that participants could die during their event, upping the ante for thrill-seekers.
You can die doing anything. Consequently, you should point out in any release that a participant can die. I’ve known of a two lawsuits where someone had a heart attack while rafting, then fell in the river.
But critics argue that the waivers don’t adequately disclose the full panoply of dangers, and that many of the obstacles are made unnecessarily perilous.
The issue here is if the injured plaintiff can argue and prove that you purposely left out risks your release may be void. You are always at risk if you increase the risk of an activity and do not inform your guests.
“Lines have to be drawn between what the participants are signing up for and what they’re actually getting,” says Sengupta’s attorney, Robert J. Gilbert of the Andover, Mass.-based firm Gilbert & Renton. “Participants sign up for the challenge, but it’s less clear that they sign up for the dangers—particularly the undisclosed dangers or gratuitous dangers.”
Here again, this is another argument showing that you cannot mislead your guests or participants.
For example, defendants typically cannot escape liability in the event that their conduct in any way increased the risk of the activity, say, purposely shaping a ski jump to be wantonly dangerous or failing to put water stations on a marathon course. Another question pertaining to the enforceability of a waiver is whether the risk could be removed without changing the nature of the activity.
The first issue is obvious. The second, whether the increased risk can be changed, is where people, in these case writers and attorneys get lost. They do not understand the personal and emotional goals someone receives when they reach these goals or participate in these sports.
The following quote sums up the legal issues that you must be aware of!
On the one hand Tough Mudder holds up signs saying ‘Remember you signed a death waiver’ … while trying to downplay the same risk that they’re encouraging their participants to accept. That leads to questions of fraudulent inducement.”
Fraudulent inducement voids a release, and in some states would make you liable for additional damages and/or claims of negligence greater than ordinary negligence.
What I did get a kick out of was the sign from the Tough Mudder events.
Based on the sign, I think you opted out of death, right?
Read the article and read the comments both are enlightening.
See: Extreme sports are more popular than ever, prompting questions about legal liability.
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Release fails to protect the defendant because the release was also a sign-up sheet and a promise to obey the rules.
Posted: June 9, 2014 Filed under: Oklahoma, Release (pre-injury contract not to sue), Sports | Tags: KL Shangri-La, Oklahoma, Release, Sign-Up Sheet, Sports, Tennis, Tennis Club, Waiver 1 CommentA release is a waiver of future claims, an important contract, and it should never be anything else. Here a badly written release that attempted to do multiple things cost the defendant.
Date of the Decision: December 23, 2002
Plaintiff: Georgia N. Burd
Defendant: KL Shangri-La Owners, L.P., Highgate Hotels, Inc., and Highgate Holdings, Inc., all d/b/a Shangri-La Resort and John Doe 1-3
Plaintiff Claims: Negligence
Defendant Defenses: affirmative defenses of contributory negligence, assumption of the risk, failure to state a claim and inadequate notice of a dangerous condition
Holding: For the plaintiff, the release was thrown out on appeal.
The facts are fairly simple. The plaintiff was at the defendant’s tennis club to compete in a tennis tournament. Somehow she got behind a curtain and tripped over rolls of carpet stored there. She sued for her injuries. The defendant’s tennis club argued the release should stop her claims.
The trial court held the release stopped the suit and held for the defendant. The plaintiff appealed.
Summary of the case
Oklahoma supports releases but requires that they be written within strict parameters. “While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law.” The court went on to define the requirements for an effective release as “a gauntlet of judicially-crafted hurdles.”
For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.
The release in this question was at best weak and incorporated several other legal issues within the four corners of the agreement. “We note this document also serves as a roster sign-up sheet and a promise to play by league rules and demonstrate good sportsmanship.”
The court then stated. “We hold, as a matter of law, that the general, non-specific release of “any facility” was insufficient under Schmidt to relieve Shangri-La [Defendant] from liability.” The court then stated specific issues that if found wrong with the release.
Patron could not contract away Shangri-La’s liability, because (1) Patron did not know she would be playing at Shangri-La; (2) the identity of the tortfeasor was not known to her at the time of the contract; (3) there was no intent, and thus no meeting of the minds, to exculpate Shangri-La, and (4) the language of the exculpatory contract is vague and ambiguous.
In the case at bar, the general, nonspecific waiver signed by Patron is completely dissimilar to the detailed, explicit release in Manning. In the instant case, the identity of the possible tortfeasor is unclear, over broad, unnamed, and unknown. Further, the waiver fails to identify the risks being waived, the duration of the waiver, and is arguably ambiguous….
The crowning statement of the court was held to the end.
…that Patron’s signature could be construed as an acknowledgment of the rules of the tennis league, of the waiver of liability, or merely of an indication that she wished to be part of a particular tennis team.
So Now What?
It’s simple. If you expect not to be sued by your guests, patrons, clients, and participants, you need to have a well-written release. The release must meet the requirements of the laws of the state where the release will be used.
The release can only be used as a release. It can’t be a sign-up sheet. It can’t have multiple signatures. It can’t contain rules. It can only be a release.
If your release is not well written, you are just killing trees. Wasting paper on a document that won’t work and having attorneys and insurance companies create mountains of documents trying to save your……business.
|
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 six books about the 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.
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Burd v. KL Shangri-La Owners, 2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109
Posted: June 9, 2014 Filed under: Legal Case, Oklahoma, Release (pre-injury contract not to sue), Sports | Tags: KL Shangri-La, Oklahoma, Oklahoma City, Shangri-La, Shangri-La Dialogue, Sign-Up Sheet, Tennis Club Leave a commentTo Read an Analysis of this decision see Release fails to protect the defendant because the release was also a sign-up sheet and a promise to obey the rules.
Burd v. KL Shangri-La Owners, 2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109
Georgia N. Burd, Plaintiff/Appellant, vs. KL Shangri-La Owners, L.P., Highgate Hotels, Inc., and Highgate Holdings, Inc., all d/b/a Shangri-La Resort and John Doe 1-3, Defendants/Appellees.
Case No. 98,235
COURT OF CIVIL APPEALS OF OKLAHOMA, DIVISION TWO
2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109
December 23, 2002, Decided
SUBSEQUENT HISTORY: [***1] Released for Publication December 23, 2002. As Modified March 25, 2003.
PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, OKLAHOMA. HONORABLE ROBERT G. HANEY, TRIAL JUDGE.
DISPOSITION: Trial court’s grant of summary judgment reversed, and case remanded for further proceedings.
COUNSEL: Andrew B. Morsman, ANDREW B. MORSMAN, P.C., Tulsa, Oklahoma, For Plaintiff/Appellant.
Tracy Pierce Nester, LAW OFFICES OF LARRIET E. THOMAS, Oklahoma City, Oklahoma, For Defendants/Appellees.
JUDGES: OPINION BY JERRY L. GOODMAN, JUDGE. COLBERT, P.J., and RAPP, J., concur.
OPINION BY: JERRY L. GOODMAN
OPINION
[**928] OPINION BY JERRY L. GOODMAN, JUDGE:
[*1] This is Georgia N. Burd’s (Patron) appeal from the trial court’s August 19, 2002, order granting summary judgment to all defendants on Patron’s petition for damages from personal injuries suffered while on defendants’ premises. The appeal was assigned to the accelerated docket pursuant to Okla.Sup.Ct.R. 1.36, 12 O.S. 2001, ch. 15, app. 1. Based upon our review of the facts and applicable law, we reverse and remand for further proceedings.
FACTS
[*2] According to Patron’s petition, filed March 16, 2001, she was injured while on the premises owned by the above named corporate defendants (collectively, Shangri-La) on May 12, 1999. Patron was participating in [***2] a tennis tournament held at Shangri-La when she tripped over rolls of carpet stored next to the tennis court. The carpet rolls were hidden from plain view by hanging curtains. Shangri-La generally denied the allegations and raised the affirmative defenses of contributory negligence, assumption of the risk, failure to state a claim, and inadequate notice of a dangerous condition.
[*3] On May 9, 2002, Shangri-La filed a motion for summary judgment. The motion set out as evidentiary material a document executed by Patron and other members of her tennis league prior to the start of the tennis season. The document stated, in relevant part: 1
Waiver of Claims: . . . .
I agree; for myself, my executors, administrators, heirs and personal representatives; that all claims of any kind, nature [**929] and description are waived, including past, present and future claims, if any, for injuries sustained in traveling to or from, or participating in, local league play in a USTA/MVTA tennis league. I further agree to release any facility (including, but not limited to, private clubs or public parks), its officers or employees; and any personnel associated with the league itself (including officials, [***3] the district association, committees and employees; the USTA, its officers, committees and employees; and any sponsors of the local league). (Emphasis added.)
1 We note this document also serves as a roster sign up sheet and a promise to play by league rules and demonstrate good sportsmanship.
[*4] Shangri-La sought summary judgment on the basis of this exculpatory clause and also argued that it owed no duty to search for hidden traps or dangers on its premises to protect Patron, whom it characterized as a licensee upon the premises. Shangri-La introduced evidentiary material showing Patron was not registered as a guest at Shangri-La, and Shangri-La did not receive any remuneration for the use of its tennis facilities by Patron’s tennis league.
[*5] The trial court conducted a hearing July 3, 2002, and found as a matter of law:
that the document entitled “Missouri Valley Tennis Association Local League Player Waiver,” signed by Plaintiff, contains an exculpatory clause which is effective to relieve Defendants [***4] of and from any liability to Plaintiff for the injuries and damages alleged in this action.
The trial court then granted Shangri-La’s motion for summary judgment. Patron appeals. We reverse and remand for further proceedings.
ANALYSIS
[*6] As set out in Schmidt v. United States, 1996 OK 29, PP 8, 10, 912 P.2d 871, 874,
While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law. [HN1] For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. (Italics in original) (emphasis added).
Further, [***5] [HN2]
A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved.
[*7] In the case in controversy, Patron testified that when she executed the waiver at the beginning of the tennis season, she had no idea she would be playing league tennis at Shangri-La. Also, to her knowledge, this was the first time her Tulsa-area team had played there, though Patron had personally played there before. Indeed, Patron stated she “absolutely [did] not” intend to release Shangri-La when she executed the waiver, because at the time of the execution, the league teams had not even been formed, much less had a schedule or location of games been published. Further, Patron had no idea that Shangri-La would maintain what is arguably a hidden danger on its premises and therefore could not “describe the nature and extent of damages from which” Shangri-La now seeks to be relieved. We hold, as a matter of law, that the general, non-specific release of “any facility” was insufficient [***6] under Schmidt to relieve Shangri-La from liability.
[*8] We are not persuaded by Shangri-La’s attempts to distinguish Schmidt. Indeed we find Schmidt‘s three-prong analysis to test the validity of an exculpatory contract to be directly on point. While it is true Schmidt did not directly rule on an example of an exculpatory contract, it did answer certified federal questions of law as to how this court should analyze such a contract. Using the Schmidt criteria, we find [**930] Patron could not contract away Shangri-La’s liability, because (1) Patron did not know she would be playing at Shangri-La; (2) the identity of the tortfeasor was not known to her at the time of the contract; (3) there was no intent, and thus no meeting of the minds, to exculpate Shangri-La, and (4) the language of the exculpatory contract is vague and ambiguous.
[*9] Nor are we persuaded by Shangri-La’s reliance on Manning v. Brannon, 1998 OK CIV APP 17, 956 P.2d 156, decided one year after, and relying on, Schmidt. In the first instance, Shangri-La’s motion inaccurately sets out Manning‘s holding. Shangri-La declares Manning to stand for the proposition that Patron’s [***7] intent to execute a “waiver” is sufficient to relieve Shangri-La of liability. However, Manning holds as follows:
P7 The Oklahoma Supreme Court has long recognized that [HN3] exculpatory contracts, i.e., a contract to avoid liability for damages also known as a “waiver” or “release,” may be valid and enforceable. . . . That is to say, so long as (1) the intent to excuse one party from the consequences of his or her own negligence is expressed in clear, definite and unambiguous language . . . . (Emphasis added.)
[*10] Second, in Manning, a divided 2 Court of Civil Appeals Division I held an exculpatory contract signed or initialed by the plaintiff in 14 different places, after watching a video tape wherein an attorney explained in detail the consequences of the document that the plaintiff was about to sign which expressly named the defendant parachute instruction school, and which contained a release of liability, a covenant not to sue, an agreement to indemnify and hold harmless, and a paragraph describing in detail the risks being assumed by the plaintiff, was sufficient evidence of the plaintiff’s intent to absolve the school of liability.
2 The dissent in Manning noted that the record suggested the defendant parachute school may have recklessly packed plaintiff’s parachute, thus creating a jury question. A waiver should not, in the opinion of the dissenter, absolve a defendant from his reckless behavior.
[*11] [***8] In the case at bar, the general, nonspecific waiver signed by Patron is completely dissimilar to the detailed, explicit release in Manning. In the instant case, the identity of the possible tortfeasor is unclear, over broad, unnamed, and unknown. Further, the waiver fails to identify the risks being waived, the duration of the waiver, and is arguably ambiguous, given the fact that Patron’s signature could be construed as an acknowledgment of the rules of the tennis league, of the waiver of liability, or merely of an indication that she wished to be part of a particular tennis team. We therefore conclude the facts in the case on review are distinguishable from those of Manning, and decline Shangri-La’s invitation to affirm the trial court based upon Manning.
SUMMARY
[*12] Because the trial court’s order clearly states the sole reason for its grant of summary judgment is the existence of the exculpatory clause which the trial court found as matter of law prevented Patron’s recovery, and because we have held such clause to be ineffective as to Shangri-La, we hold the trial court’s order must be reversed and the matter remanded to the trial court for further proceedings. [***9] The order makes no mention of undisputed material facts, or other reasons that, as a matter of law, would support the grant of summary judgment. Nor do we address the issue of Patron’s status as a licensee or invitee, and the respective duties owed to her by Shangri-La, because this was not part of the trial court’s stated basis for granting summary judgment.
[*13] REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
COLBERT, P.J., and RAPP, J., concur.
December 24, 2002
Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Posted: June 8, 2014 Filed under: Assumption of the Risk, Legal Case, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, Defendant, drowning, Livery, Louisiana, Tiki, Tiki bar, Tubing Leave a commentParveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children Versus Tiki Tubing, LLC and Abc Insurance Company
NO. 2011 CA 1477
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
March 23, 2012, Judgment Rendered
NOTICE: NOT DESIGNATED FOR PUBLICATION.
PLEASE CONSULT THE LOUISIANA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Writ denied by Parveen v. Tiki Tubing, LLC, 90 So. 3d 1063, 2012 La. LEXIS 1798 (La., June 15, 2012)
PRIOR HISTORY: [*1]
On Appeal from the 21st Judicial District Court, in and for the Parish of Livingston, State of Louisiana. District Court No. 128,216. The Honorable Elizabeth P. Wolfe, Judge Presiding.
DISPOSITION: AFFIRMED.
COUNSEL: Nicholas M. Graphia, Monroe, La., Counsel for Plaintiff/Appellant, Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children.
C. David Vasser, Jr., Baton Rouge, La., Counsel for Defendant/Appellee, Tiki Tubing, L.L.C.
JUDGES: BEFORE: CARTER, C.J., PARRO AND HIGGINBOTHAM, JJ.
OPINION BY: CARTER
OPINION
[Pg 2] CARTER, C.J.
The plaintiff appeals the summary judgment dismissing her suit for damages arising from the drowning death of her husband. For the reasons that follow, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Tiki Tubing, L.L.C. (Tiki) is a commercial enterprise located on the banks of the Amite River. During peak summer months, Tiki employs 10-15 full time employees. For a fee, Tiki provides customers with parking, tube rental, a bus ride upstream, and a beach entry and exit on the river. The tubing route on the Amite River takes approximately four hours to complete. The Tiki website describes the Amite River as “smooth and slow moving and … 1 to 3 feet deep with a few deeper holes from [*2] 6 to 8 feet deep.” The website continues: “All bodies of water have some inherent risks. Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The tubers are grouped together at the Tiki hut and bused upstream to the ingress point on the river. At this point, the tubers select their tubes and enter the water.
According to John Fore, the managing member of Tiki, there are no warning signs posted at the hut or along the river. Tiki provides life jackets free of charge to customers; however, customers are not required to wear them. Neither Fore nor the Tiki employees were aware of any prior drowning on the tubing route. There are no lifeguards or rescuers on staff, and employees are not trained in water safety or in cardiopulmonary resuscitation (CPR). Tiki employees do not travel the river with the tubers, and there is no emergency equipment along the river route or at the Tiki [Pg 3] facility. Tiki does hire off-duty Livingston Parish Deputies as independent contractors to assist with crowd control, public drinking, drugs, broken glass, and unlocking of cars. The deputies are not posted on the tubing route; they are not hired to handle medical [*3] emergencies.
On June 21, 2009, 37-year-old Mansoor Raja and two of his friends decided to tube the Amite River. Raja had never tubed before, and after reading about Tiki from its internet website, Raja, Akhlaq Akhtar, and Tariq Mehmood drove to the facility. The group was presented with a liability waiver at the hut, and Akhtar printed all three men’s names on the bottom of the sheet.1 Although Raja was with Akhtar when Akhtar completed the form, Raja did not read or sign the waiver. Akhtar remembered the men being given a document containing safety instructions and that this information also was posted on a board. According to Akhtar, all three men read the instructions, which specifically mentioned the availability of life jackets. Akhtar asked the other men if they needed life jackets, but the general consensus was that the water would not be deep enough and that the life jackets were not needed. The waiver sheet is the only “warning” at the Tiki facility.
1 The waiver is entitled “Participant’s Agreement, Release, and Assumption of Risk.” The bottom of the form has multiple lines upon which customers write their names.
The three men boarded the bus, rode upstream, retrieved their tubes, [*4] and entered the river. According to Akhtar, Raja and Mehmood were playing around and getting caught in trees in the water. Akhtar tried to rush the other two men along so that they would not get separated from the group. The water was shallow, and Raja and Mehmood were leaving their tubes and [Pg 4] swimming freely in the river. The three men continued in this fashion for 15 to 20 minutes.
On the river trip, Raja was “getting excited.” He would leave his tube, swim downstream with the current, then wait for his tube to float to him. Raja did this four or five times. The men stopped to take a photograph, after which Raja said he would swim just one more length. Suddenly, while swimming ahead of his tube, Raja disappeared under the water. Then, Mehmood began having trouble in the water. Akhtar floated toward his friends and was able to help Mehmood get hold of the tube and out of the water. Raja, however, panicked and was unable to grasp the tube. According to Akhtar, the water was “too far deep” and moving much faster underneath the surface. Akhtar did not leave his tube in an attempt to pull Raja from the water because, according to Akhtar, the water was too deep and the current would [*5] have pulled him under too. Akhtar explained: “If you go to somebody who’s drowning, he’ll take you with him even if you are [a] good swimmer….”
Other floaters, noticing the commotion, began calling for help; the authorities were alerted with a call to 911, and another tuber ran toward the ingress point where several employees were working to notify them that someone was “lost.” Christopher Seese, a teenage employee of Tiki, stated that he first thought someone had simply gotten off his tube and run off. Upon realizing there was a problem, three employees ran to the scene. Fifteen to twenty tubers were sitting on the beach, and several tubers were swimming around in the deeper area of the river. The employees immediately entered the river. It took Christopher five to ten minutes to [Pg 5] locate Raja in the eight-foot-deep pocket in the river by dragging his foot in the water. Raja’s body was resting against a submerged log. According to Christopher, the current in the pocket was no stronger than the rest of the river; however, the water was deeper. It was estimated that it took an additional three to four minutes to get Raja out of the water and onto the shore.
Raja was brought to [*6] the shore, and another tuber was the first to attempt CPR. Because he was on the opposite side of the river, Akhtar estimated that it took him ten minutes to get to Raja after he was pulled from the water. Upon reaching shore, Akhtar observed that the unidentified tuber was performing CPR incorrectly, so Akhtar took over.2 Akhtar blew air into Raja’s chest, and Tiki employee Jacob Bourgeois assisted with chest compressions. Ultimately, four different people performed chest compressions on Raja, assisting Akhtar with CPR until the rescue helicopter arrived. According to Akhtar, Raja’s pulse was restored and he was warm to the touch prior to the arrival of paramedics and being airlifted to a hospital. Raja’s death certificate indicates he died the next day, June 22, 2009.
2 Akhtar explained that he had received training in CPR during military service.
Raja’s surviving spouse, Neelam Parveen, filed this wrongful death and survival action for damages against Tiki and its insurer, alleging Tiki’s negligent acts and omissions were a proximate cause of Raja’s death. After answering the petition, Tiki filed a motion for summary judgment, alleging Tiki did not breach any legal duty to Raja. Subsequent [*7] to the filing of Tiki’s motion for summary judgment, but prior to the hearing on the motion, the trial court granted the plaintiff leave to file a supplemental and amending [Pg 6] petition for damages. Therein the plaintiff alleged that she was entitled to punitive damages under general maritime law in that Tiki’s conduct was grossly negligent, reckless, and wanton. Thereafter, the plaintiff filed an opposition to Tiki’s motion for summary judgment, with attachments thereto, as well as a supplemental opposition.
Following a hearing, the trial court granted Tiki’s motion for summary judgment, and the plaintiff’s claims against Tiki were dismissed with prejudice. The plaintiff appeals, asserting several arguments in support of her position that summary judgment was improperly granted.
SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions [*8] on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966B. Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Proc. Ann. art. 966A(2).
Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. All Crane, 47 So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Proc. Ann. art. 966C(2) [Pg 7]. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Id. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary [*9] burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966C(2); All Crane, 47 So. 3d at 1027.
In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter but, instead, to determine whether there is a genuine issue of triable fact. All Crane, 47 So. 3d at 1027. A court cannot make credibility decisions on a motion for summary judgment. Id. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.
[Pg 8] DISCUSSION
The plaintiff advances several theories of recovery for the alleged negligence or gross negligence of Tiki. [*10] Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
The elements of a cause of action in tort are fault, causation, and damage. Seals v. Morris, 410 So. 2d 715, 718 (La. 1981). The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Id. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La. App. 1 Cir. 5/9/03), 849 So. 2d 622, 627, writ denied, 03-1579 (La. 10/3/03), 855 So. 2d 315. The inquiry is whether the plaintiff [*11] has any law–statutory, jurisprudential, or arising from general principles of fault– to support her claim. Faucheaux v. Terrebonne Consol. Government, 615 So. 2d 289, 292 (La. 1993); Fredericks v. Daiquiris & Creams of Mandeville, L.L.C, 04-0567 (La. App. 1 Cir. 3/24/05), 906 So. 2d 636, 639, writ denied, 05-1047 (La. 6/17/05), 904 So. 2d 706.
[Pg 9] Under Louisiana Civil Code article 2317, “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Louisiana Civil Code article 2317.1 modifies Article 2317 and provides in pertinent part:
[The] custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
The plaintiff alleges that in accordance with Article 2317.1, Tiki, as custodian3 of the tubing route on the Amite River, owed a duty to its patrons [*12] to employ safety measures to prevent drowning and to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. In order to prevail on a claim of negligence under Articles 2317 and 2317.1, the plaintiff will have the ultimate burden at trial of proving by a preponderance of the evidence each of the following elements: (1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise. See Riggs v. Opelousas General Hosp. Trust Authority, 08-591 (La. App. 3 Cir. 11/5/08), 997 So. 2d 814, 817. Failure to prove any one of these elements will defeat the [Pg 10] plaintiff’s claim and thus establish the defendant’s entitlement to summary judgment. See Grogan v. Women’s and Children’s Hospital, Inc., 07-1297 (La. App. 3 Cir. 4/16/08), 981 So. 2d 162, 165.
3 There are no allegations or evidence [*13] suggesting that Tiki owned the area of the river, or the land abutting that portion of the river, in which Raja drowned.
The Louisiana Supreme Court has instructed that determining who has custody of a thing is a fact-driven determination. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So. 2d 1002, 1009. Courts should consider: (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. Dupree, 765 So. 2d at 1009. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” Id. at 1009. This court has held that a state-owned river cannot be in the custody of a landowner. See Tobey v. State, 454 So. 2d 144, 145 (La. App. 1st Cir. 1984) (a tubing accident did not result from any condition of the land).
Even if the plaintiff were to establish that material issues of fact remain in dispute regarding custody of the tubing route on the Amite River, the plaintiff also must prove that the portion of the Amite River at issue suffered from a vice or defect in order to recover damages under Articles 2317 [*14] and 2317.1. A defect is defined as a condition that creates an unreasonable risk of harm. Moory v. Allstate Ins. Co., 04-0319 (La. App. 1 Cir. 2/11/05), 906 So. 2d 474, 480, writ denied, 05-0668 (La. 4/29/05), 901 So. 2d 1076. The record establishes that Raja drowned in an area of the river described as a drop or a deep pocket. This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective [Pg 11] condition.”4 Johnson v. City of Morgan City, 99-2968 (La. App. 1 Cir. 12/22/00), 787 So. 2d 326, 330-31, writ denied, 01-0134 (La. 3/16/01), 787 So. 2d 315. Further, “variations in water depth within natural swimming areas are standard.” Johnson, 787 So. 2d at 330. Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. Sevin v. Parish of Plaquemines, 04-1439 (La. App. 4 Cir. 4/27/05), 901 So. 2d 619, 623-24, writ denied, 05-1790 (La. 1/27/06), 922 So. 2d 550. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
4 Moreover, [*15] not every defect gives rise to statutory liability under Articles 2317 and 2317.1. Ruschel v. St. Amant, 11-78 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1149, 1153. The defect must be of such a nature as to constitute a dangerous condition that reasonably would be expected to cause injury to a prudent person using ordinary care under the circumstances. Ruschel, 66 So. 3d at 1153.
The plaintiff argues that Tiki had a duty to provide an adequate and correct warning to customers regarding the dangers of tubing and the depth and current of the Amite River, and also had a duty to post lifeguards along the tubing route.5 Tubing has been defined as an activity that is obviously and inherently dangerous. See Tobey, 454 So. 2d at 146. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. See Hall v. Lemieux, 378 So. 2d 130, 132 (La. App. 4th Cir. 1979), [Pg 12] writ denied, 381 So. 2d 1220 (La. 1980). When a risk is obvious, there is no duty to warn or protect against it. Moory, 906 So. 2d at 478. Akhtar described Raja as “not a good swimmer.”6 Despite his limited swimming abilities and knowing that the water was over his head in parts, Raja voluntarily [*16] left his tube to swim freely in the river without a life jacket, allowing the current to carry him away from his tube.
5 Louisiana’s general negligence liability provision is found in Louisiana Civil Code article 2315. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under Article 2315. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So. 2d 270, 275. In order for liability to attach under a duty-risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault, 816 So. 2d at 275-76.
6 During the few times that Akhtar and Raja swam together in a pool, Raja would swim one pool length at a time, keeping [*17] his head out of the water the entire time. Raja would go in water over his head; however, he would hold onto a “pipe.”
Finally, citing to Harris v. Pizza Hut of La., Inc., 455 So. 2d 1364 (La. 1984), the plaintiff argues that Tiki assumed a duty when its employees attempted life-saving measures on Raja and then breached that duty by improperly performing CPR on Raja. In Harris, the supreme court held that a restaurant had a duty, once it hired a security guard, to have that guard protect patrons from the criminal activities of third persons in a reasonable and prudent manner. Id. at 1369. This court has recognized that the negligent breach of an assumed duty may create civil liability. McGowan v. Victory and Power Ministries, 99-0235 (La. App. 1 Cir. 3/31/00), 757 So. 2d 912, 914. If a person voluntarily or gratuitously undertakes a task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner. McGowan, 757 So. 2d at 914; see La. Civ. Code Ann. art. 2315.
Tiki employees acknowledged having no formal CPR training. Akhtar stated that he had been trained in CPR, and Akhtar was performing breathing assistance on Raja, while several [*18] others–including Tiki employees–assisted with chest compressions on Raja. The affidavit of the [Pg 13] plaintiff’s expert, Dr. Adam Broussard, set forth the CPR guidelines and concluded that, based on Jacob’s deposition, “the responders did not correctly perform CPR.” Dr. Broussard’s affidavit establishes that early CPR “performed correctly is the single most important intervention that can be performed in the field by a lay person.”
Raja was pulled from the water after being submerged for at least ten minutes. Akhtar stated that when Raja was brought up to the surface, he was not moving and not conscious. Akhtar began breathing into Raja with the assistance of four others, who took turns doing chest compressions. Akhtar observed that after the second person’s turn with chest compressions, Raja was warm to the touch and a pulse was discernible. Although Dr. Broussard’s affidavit establishes that CPR was performed improperly, his affidavit does not establish that the efforts of Tiki employees were unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.
CONCLUSION
The [*19] plaintiff failed to produce factual evidence sufficient to establish that she would be able to meet her burden at trial of proving by a preponderance of the evidence all of the elements of a cause of action in negligence or gross negligence. Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death. See Sevin, 901 So. 2d at 624. For the above-stated reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, Tiki [Pg 14] Tubing, L.L.C, dismissing the suit filed against it by Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children. Costs of this appeal are assessed to the plaintiff, Neelam Parveen.
AFFIRMED.
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Recreation Law 