Wyoming Ski Area Statute
Posted: October 12, 2013 Filed under: Skiing / Snow Boarding, Wyoming | Tags: Ski Area Statute, skiing, snowboarding, WY, Wyoming Leave a commentWYOMING STATUTES ANNOTATED
Title 6 Crimes and Offenses
Chapter 9 Miscellaneous Offenses
Article 2. Other
GO TO CODE OF WYOMING ARCHIVE DIRECTORY
Wyo. Stat. § 6-9-201 (2012)
§ 6-9-201. Trespass on closed or unsafe areas within ski areas; penalty; exceptions.
(a) A person is guilty of a misdemeanor punishable by a fine of not more than one hundred dollars ($100.00) if he:
(i) Skis on a slope or trail that has been posted as “closed”;
(ii) Knowingly enters upon public or private lands from an adjoining ski area when the lands have been closed by the owner and posted as closed by the owner or by the ski area operator; or
(iii) Intentionally enters state or federal land leased and in use as a ski area, knowing:
(A) The lessee of the premises has designated the land as an unsafe area; or
(B) The land has been posted with warning signs, prohibiting entry, which are reasonably likely to come to the attention of the public.
(b) This section does not apply to peace officers, national park or forest service officers, or persons authorized by the lessee of the premises.
HISTORY: (Laws 1982, ch. 75, § 3; 1989, ch. 202, § 1.)
NOTES: Law reviews.
For article, “Recreational Injuries and Inherent Risks: Wyoming’s Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).
Am. Jur. 2d, ALR and C.J.S. references.
Liability for injury or death from ski lift, ski tow or similar device, 95 ALR3d 203.
Ski resort’s liability for skier’s injuries resulting from condition of ski run or slope, 55 ALR4th 632.
HIERARCHY NOTES:
Tit. 6 Note
Tit. 6, Ch. 9 Note
Wyo. Stat. § 6-9-301 (2012)
§ 6-9-301. Skier safety; skiing while impaired; unsafe skiing; collisions; penalties.
(a) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any illicit controlled substance or other drug as defined by W.S. 35-7-1002.
(b) No person shall ski in reckless disregard of his safety or the safety of others.
(c) No skier involved in a collision with another person in which an injury results shall leave the vicinity of the collision before giving his name and current address to an employee of the ski area operator or a member of the ski patrol except for the purpose of securing aid for a person injured in the collision, in which event the person leaving the scene of the collision shall give his name and current address as required by this subsection within twenty-four (24) hours after securing aid.
(d) Any person violating this section is guilty of a misdemeanor punishable by imprisonment for not more than twenty (20) days, a fine of not more than two hundred dollars ($200.00), or both.
HISTORY: (Laws 1989, ch. 202, § 2.)
NOTES: Law reviews.
For article, “Recreational Injuries and Inherent Risks: Wyoming’s Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).
Am. Jur. 2d, ALR and C.J.S. references.
Products liability: skiing equipment, 76 ALR4th 256.
Skier’s liability for injuries to or death of another person, 75 ALR5th 583.
HIERARCHY NOTES:
Tit. 6 Note
Tit. 6, Ch. 9 Note
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West Virginia Ski Safety Statute
Posted: October 12, 2013 Filed under: Ski Area, Skiing / Snow Boarding, West Virginia | Tags: Ski Safety Statute, skiing, snowboarding, West Virginia, WV Leave a commentWest Virginia Code Annotated
Chapter 20. Natural Resources.
Article 3A. Skiing Responsibility Act.
GO TO WEST VIRGINIA STATUTES ARCHIVE DIRECTORY
W. Va. Code Ch. 20, Art. 3A Note (2012)
Ch. 20, Art. 3A Note
NOTES:
Constitutionality.
This act, which immunizes ski area operators from tort liability for the inherent risks in the sport of skiing which are essentially impossible for the operators to eliminate, does not violate equal protection principles of W. Va. Const., art. III, § 10 or of U.S. Const., amend. 14. The act similarly does not constitute special legislation in violation of W. Va. Const., art. VI, § 39. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
This act does not violate the certain remedy provision of W. Va. Const., art. III, § 17. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
Purpose.
The purpose of this act was to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
Common-law cause of action.
This act does not provide an alternative remedy for the repealed common-law cause of action for damages resulting from the inherent risks of skiing which the operator cannot eliminate. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
HIERARCHY NOTES:
Ch. 20 Note
§ 20-3A-1. Legislative purpose.
The Legislature finds that the sport of skiing is practiced by a large number of citizens of West Virginia and also attracts to West Virginia a large number of nonresidents, significantly contributing to the economy of West Virginia. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator, it is the purpose of this article to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes for which there can be no recovery.
HISTORY: 1984, c. 163.
NOTES: W. Va. Law Review.
Fahey, “Landlord Liability in West Virginia for Criminal Acts on the Premises,” 98 W. Va. L. Rev. 659 (1996).
Constitutionality.
The West Virginia Skiing Responsibility Act, which immunizes ski area operators from tort liability for the inherent risks of skiing that are essentially impossible for the operators to eliminate, does not violate equal protection principles of W. Va. Const., art. III, § 10, nor does it constitute special legislation in violation of art. VI, § 39. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).
Purpose.
The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).
Quoted in
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
HIERARCHY NOTES:
Ch. 20 Note
Ch. 20, Art. 3A Note
§ 20-3A-2. Definitions.
Unless the context of usage clearly requires otherwise:
(a) “Aerial passenger tramway” means any device operated by a ski area operator used to transport passengers, by single or double reversible tramway; chair lift or gondola lift; T-bar lift, J-bar lift, platter lift, conveyor lift or similar device; or a fiber rope tow.
(b) “Competitor” means a skier actually engaged in competition, a special event, or training or practicing for competition or a special event on any portion of the area made available by the ski area operator.
(c) “Freestyle terrain” includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes, and all other constructed and natural features, half-pipes, quarter pipes, and freestyle-bump terrain.
(d) “Passenger” means any person who is lawfully using an aerial passenger tramway, or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.
(e) “Ski area” means any property owned or leased and under the control of the ski area operator or operators within West Virginia.
(f) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, or the State of West Virginia, or any political subdivision thereof, who has operational responsibility for any ski area or aerial passenger tramway.
(g) “Skiing area” means all ski slopes and trails not including any aerial passenger tramway.
(h) “Skier” means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing in locations designated as the ski slopes and trails, but does not include a passenger using an aerial passenger tramway.
(i) “Skiing” means sliding downhill or jumping on snow or ice on skis, a toboggan, a sled, a tube, a snowbike, a snowboard, or any other device by utilizing any of the facilities of the ski area.
(j) “Ski slopes and trails” means all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing in areas designated for that type of skiing activity. Ski slopes and trails shall be designated on trail maps, if provided, and by signs indicating to the skiing public the designated skiing activity for skiing areas.
HISTORY: 1984, c. 163; 2006, c. 204.
NOTES: Effect of amendment of 2006.
Acts 2006, c. 204, effective June 8, 2006, inserted “conveyor lift” in (a); added (b) and (c); redesignated former (b) through (f) as (d) through (h); inserted “ski” in (g); substituted “in locations designated as” for “by utilizing” in (h); added (i); redesignated former (g) as (j); and in (j), inserted “all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and” in the first sentence, added “in areas designated for that type of skiing activity” at the end of the first sentence, and added the last sentence; and made a minor stylistic change.
Quoted in
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
§ 20-3A-3. Duties of ski area operators with respect to ski areas.
Every ski area operator shall:
(1) Mark all trail maintenance vehicles and furnish such vehicles with flashing or rotating lights which shall be in operation whenever the vehicles are working or are in movement in the skiing area.
(2) Mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails.
(3) Mark conspicuously the top or entrance to each ski slope, trail or area to designate open or closed and relative degree of difficulty using the appropriate symbols approved by the national ski areas association as of the effective date of this article and as may thereafter be modified by the association.
(4) Maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated thereon in accordance with the aforementioned symbols’ code and containing a key to the code in accordance with designations in subdivision (3) herein.
(5) Designate by trail board or otherwise which trails or slopes are open or closed.
(6) Place, or cause to be placed, whenever snow grooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of the trail or slope.
(7) Post notice at prominent locations of the requirements of this article concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices.
(8) Maintain the ski areas in a reasonably safe condition, except that such operator shall not be responsible for any injury, loss or damage caused by the following: Variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with subdivision two of this section.
(9) When no certified ambulance service is available in the vicinity, have on duty at or near the skiing area, during all times that skiing areas are open for skiing, at least one trained and currently certified emergency medical technician.
HISTORY: 1984, c. 163.
NOTES: Cross references.
Liability of ski area operators, § 20-3A-6.
Editor’s notes.
Concerning the reference in (3) to “the effective date of this article,” Acts 1984, c. 163, which enacted this article, provided that the act take effect June 8, 1984.
Construction.
Where variations in the terrain or ice conditions in the form of ungroomed snow caused injury to plaintiff, defendant ski area operator was not liable. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).
The West Virginia Skiing Responsibility Act, §§ 20-3A-1 et seq., does not require the posting of warnings concerning the presence of ungroomed snow or require that ski trails be closed because of ungroomed snow. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).
Purpose of act.
The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).
Applicability.
Question of whether the general maintenance clause in subsection (8) is applicable to snow-making activity and, if so, whether the defendant negligently engaged in snow-making activity and whether the alleged dangerous condition could have been eliminated if the defendant had reasonably maintained the snow-making equipment presented questions of fact which compelled that defendant’s motion for summary judgment be denied. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).
Jury instructions.
Jury instructions which cited this section were not weighted impermissibly in favor of the defendant. The degree that the instructions reflected any lack of balance was due to the content of state law, not to the misstatement of relevant legal principles by the court, and the statutory reference was not extraneous. Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1995 U.S. App. LEXIS 7647 (4th Cir. 1995).
Quoted in
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
HIERARCHY NOTES:
Ch. 20 Note
Ch. 20, Art. 3A Note
§ 20-3A-4. Responsibilities of passengers.
No passenger shall:
(1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;
(2) Drop, throw or expel any object from an aerial passenger tramway;
(3) Perform any act which interferes with the running or operation of an aerial passenger tramway;
(4) Enter the boarding area of or use any aerial passenger tramway without requesting and receiving instruction on its use from the ski area operator, unless the passenger has the ability to use it safely without instruction;
(5) Engage in any harmful conduct, or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person; or
(6) Embark on an aerial passenger tramway without the authority, express or implied, of the ski area operator.
HISTORY: 1984, c. 163.
NOTES: Cross references.
Liability of passengers, § 20-3A-7.
Quoted in
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
HIERARCHY NOTES:
Ch. 20 Note
Ch. 20, Art. 3A Note
§ 20-3A-5. Duties of skiers.
(a) It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken. Each skier expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in the sport of skiing including, but not limited to, any injury, loss or damage caused by the following: Variations in terrain including freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with section three [§ 20-3A-3] of this article. Each skier shall have the sole individual responsibility for knowing the range of his or her own ability to negotiate any ski slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone. If while actually skiing, any skier collides with any object or person, except an obviously intoxicated person of whom the ski area operator is aware, the responsibility for such collision shall be solely that of the skier or skiers involved and not that of the ski area operator.
(b) No person shall place any object in the skiing area or on the uphill track or any aerial passenger tramway which may cause a passenger or skier to fall.
(c) No skier shall cross the track of any T-bar lift, J-bar lift, platter lift, conveyor lift or similar device, or a fiber rope tow except at a designated location, nor shall any skier place any object in such an uphill track.
(d) No person involved in a skiing accident shall depart the ski area without leaving personal identification, including name and address, with an employee of the ski area operator or without notifying the proper authorities or without obtaining assistance when that person knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.
(e) A ski or snowboard used by a skier while skiing or snowboarding shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard detach from the skier. No skier shall fail to wear retention straps or other devices to help prevent runaway skis or snowboards. This requirement shall not apply to cross country skis.
(f) Each skier has the duty to maintain control of his or her speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him or her.
(g) No skier shall ski on a ski slope or trail that has been posted as “Closed.”
(h) No skier shall use any ski slope while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance or other drug or while such person is under the influence of alcohol or any controlled substance or other drug.
(i) Each skier has the duty to heed all posted information and other warnings.
(j) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, the skier shall have the duty to avoid moving skiers already on the ski slope or trail.
HISTORY: 1984, c. 163; 2006, c. 204.
NOTES: Effect of amendment of 2006.
Acts 2006, c. 204, effective June 8, 2006, redesignated the former first two paragraphs as (a), redesignated the former third paragraph as (b) through (e), and added (f) through (j); in (a), inserted “including freestyle terrain” in the second sentence and inserted “ski” preceding “slope” in the third sentence; in (c), substituted “No skier shall cross ” for “or which crosses the track,” inserted “conveyor lift,” and added “nor shall any skier place any object in such an uphill track”; inserted “with an employee of the ski area operator” in (d); added the first and last sentences in (e); and made minor stylistic changes.
Cross references.
Liability of skiers, § 20-3A-8.
A.L.R. references.
Skier’s liability for injuries to or death of another person, 75 A.L.R.5th 583.
Construction.
Where variations in the terrain or ice conditions in the form of ungroomed snow, caused injury to plaintiff defendant ski area operator was not liable. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).
This article does not require the posting of warnings concerning the presence of ungroomed snow or require that ski trails be closed because of ungroomed snow. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).
Purpose of act.
The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).
Skiing is hazardous.
Trial court properly granted summary judgment to the 12-year-old skier’s parents on the injured party’s claim that they were liable for injuries she sustained when the 12-year-old ran into her on the beginner’s slopes at a West Virginia ski resort; not only did the injured party not present a sufficient forecast of evidence to overcome the rebuttable presumption that the 12-year-old skier was incapable of negligence, but her claims that he could have done several things to avoid the collision was at odds with West Virginia law that recognized skiing was a recreational sport that was hazardous to skiers regardless of all feasible safety measures which could be taken. Frank v. Funkhouser, 2005 N.C. App. LEXIS 515, 169 N.C. App. 108, 609 S.E.2d 788 (Mar 15, 2005).
Quoted in
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
§ 20-3A-6. Liability of ski area operators.
Any ski area operator shall be liable for injury, loss or damage cause by failure to follow the duties set forth in section three [§ 20-3A-3] of this article where the violation of duty is causally related to the injury, loss or damage suffered. A ski area operator shall not be liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of such operator, nor shall a ski area operator be liable for any injury, loss or damage cause by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway. Every ski area operator shall carry public liability insurance in limits of no less than one hundred thousand dollars per person, three hundred thousand dollars per occurrence and ten thousand dollars for property damage.
HISTORY: 1984, c. 163.
NOTES:
Quoted in
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991); Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).
Cited in
Whitlow v. Board of Educ., 190 W. Va. 223, 438 S.E.2d 15, 1993 W. Va. LEXIS 169 (1993).
HIERARCHY NOTES:
Ch. 20 Note
Ch. 20, Art. 3A Note
§ 20-3A-8. Liability of skiers.
Any skier shall be liable for injury, loss or damage resulting from violations of the duties set forth in section five [§ 20-3A-5].
HISTORY: 1984, c. 163.
NOTES: A.L.R. references.
Skier’s liability for injuries to or death of another person, 75 A.L.R.5th 583.
Purpose of act.
The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).
HIERARCHY NOTES:
Ch. 20 Note
Ch. 20, Art. 3A Note
§ 20-3A-9. Competition.
(a) The ski area operator shall, prior to use of any portion of the area made available by the ski area operator, allow each competitor the opportunity to conduct a reasonable visual inspection of the ski slopes and trails or freestyle terrain used in the competition.
(b) The competitor shall be held to assume the risk of all ski slopes and trails or freestyle terrain conditions including, but not limited to, weather and snow conditions; obstacles, course or feature location, construction or layout, freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used. No liability shall attach to a ski area operator for injury or death to any competitor caused by course, venue, or area conditions that a visual inspection should have revealed or by collisions with other competitors.
HISTORY: 2006, c. 204.
NOTES: Effective dates.
Acts 2006, c. 204, provided that the act take effect June 8, 2006.
HIERARCHY NOTES:
Ch. 20 Note
Ch. 20, Art. 3A Note
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Would there be a lawsuit in this headline if the camp adults had handled this differently?
Posted: October 9, 2013 Filed under: Minors, Youth, Children, Summer Camp | Tags: Basketball court, Camp, Fifteen, Lawsuit, Negligent infliction of emotional distress, Recreation, Summer Camp, Teenager Leave a commentKissing is a $600000 offense at this camp.
This is the headlines form the article “Lawsuit: Girl kicked out of camp over kiss” The result of being thrown out of
camp is a lawsuit by the girl’s parents for “$600,000 in damages, alleging negligent infliction of emotional distress, defamation and other claims.”
The camp, Camp Emerson had an activity called “court time”. This activity “which is held on the basketball court and provides time for male and female campers to interact.” The camper was thrown out when she, and a boy went behind the arts and crafts building and had a kiss.
This is where it gets interesting.
But Arnold said the girl was publicly humiliated and expelled from the camp the next morning by the camp director, Sue Lein. Her parents were called and told to pick her up at the edge of camp, where she was escorted by an armed and uniformed police officer, Arnold said.
The camp allegedly “…falsely accused her and the boy of sexually provocative behavior.” A fifteen-year-old girl has that accusation levied at her? That is just nasty, even if true.
Allegedly, the “camp’s director yelled at the girl for being promiscuous in front of everyone….”
“The family spent $6,450 for the four-week camp, which was not refunded, said Rosemarie Arnold, attorney for the family.” Blow number two to the egos and feelings of the family. Your daughter is escorted off camp property by an armed guard, and then you don’t even get a refund. Someone was sitting in a law office may want to suggest a different way of dealing with these issues.
Do you think anyone will learn anything about this, other than young girls realizing that kissing a boy is bad and can lead to mental trauma and embarrassment? Isn’t high school for teenagers bad enough?
This suit was withdrawn a few days after it was filed.
Is this any way to treat any fifteen year old kid? Is this any way to deal with budding hormonal and emotional changes? Is this any way to treat anyone other than criminals?
Is there anything from this description that would tell you as a parent to not sue the camp for what they did to your child?
See Girl Suing Summer Camp After Expulsion For Kiss
What do you think? Leave a comment.
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Death of young climber leads to criminal charges in Italy
Posted: October 8, 2013 Filed under: Climbing, Criminal Liability | Tags: fatality, La Repubblica Torina, manslaughter, quickdraw, Rock climbing, Tito Traversa Leave a commentLawsuit versus criminal charges; US v. Europe
Tito Traversa died in July of this year. He was a very talented promising climber who had already lead 5.14’s. His death allegedly occurred because instead of his quick draws being correctly attached to carabiners, the webbing was attached to the rubber “bands” used to keep the slings from moving on the carabiner. Those bands have a low breaking strength, if any at all. When Tito fell he fell 40 meters (120 feet) to his death.
To read an article on how the quickdraws were incorrectly set up see The Quickdraws that Led to the Death of Tito Traversa.
Here in the US there might be a lawsuit over the issue; however, criminal charges would not be filed unless there was criminal scienter. Scienter is a criminal intent to do something or known as the “criminal mind.”
Just another example of the different ways legally the US and Europe, as well as most other countries are different.
See Manslaughter Charges Filed after Tito’s Accident
For articles about his death see: 12-Year-Old Tito Traversa Dies From Climbing Fall or Superstar Preteen Climber Dies After Fall
What do you think? Leave a comment.
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There is no duty on the part of the ski patrol to play cop on the slopes
Posted: October 7, 2013 Filed under: Ski Area, Skier v. Skier, Skiing / Snow Boarding, Vermont | Tags: Collision, duty, Killington, Killington Ltd., Mary Ryan O'Connell, Ski Patrol, skier collision, skier v. skier, Vermont Leave a commentSkiers and Boarders who do not voluntarily provide their ID to the ski area cannot be “caught” by the patrol and there is no liability on the resort for not doing so.
O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74
Plaintiff: Mary Ryan O’Connell
Defendant: Killington, Ltd.
Plaintiff Claims: (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff’s injuries were the consequence of her assumption of the inherent risks of skiing.
Defendant Defenses: No Duty
Holding: for the defendant
In this case the plaintiff was stopped on the slope of the defendant ski area. While standing she was struck by another skier. The ski patrol arrived on scene along with the plaintiff’s sister. The plaintiff asked the ski patrol to get the name of the skier that hit her. The plaintiff’s sister spoke to the skier that collided with the plaintiff and asked him to go to the patrol station and identify himself.
The skier never did.
The plaintiff sued the ski area alleging the ski area:
(1) failed to warn of the icy conditions on the trail,
(2) failed to close the trail because of its dangerous condition and
(3) failed to obtain the identity of the skier who had collided with plaintiff.
The basis for the failure to obtain the identity of the skier claim was based upon the defendant’s employee manual.
In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant’s employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant’s negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.
At the end of the trial the judge submitted the failure to warn and failure to identify claims to the jury.
The jury found for the plaintiff on both claims and awarded damages of $71,108.69.
The defendant appealed based on the following issues.
(1) whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided with her;
(2) whether plaintiff’s failure-to-identify claim is precluded by the jury’s finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and
(3) whether certain instructions to the jury were proper.
Summary of the case
After the accident and before the appeal the Vermont Legislature passed a statute stating that a ski area was not legally responsible for obtaining the name of any person involved in an accident.
12 V.S.A. § 1038(b), effective June 21, 1994, provides, in part:
(b) Collision at a ski area.
(1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.
(2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.
Because the statute was passed after the incident in this case, it did not apply to this case.
The Court looked at whether there was a common law (prior to statute) duty to on the ski area to do more than ask for the information. To do that the court reviewed how a duty is created in Vermont. “The imposition of a duty is “‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.”
These factors may include the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and plaintiff’s injury, the moral blame attached to defendant’s conduct, the policy of preventing future harm, the burden to the defendant, the con-sequences to the community of finding a duty, and the availability and cost of insurance.
The court analysis separated the separated physical harm, an injury, from economic harm, failure to find someone who may owe another money.
Thus, a possessor of land open to the general public has a duty to aid and protect a member of the public coming on the land against unreasonable risk of “physical harm” only. Physical harm does not include economic loss.
The court concluded: “Our review of the decisions from other jurisdictions indicates that, absent a special relationship or undertaking, there is no duty to protect another’s litigation interest.”
The court then looked at the duties of the ski patrol, which do not include the power to detain or apprehend. “Moreover, even if the ski area had a duty to identify, it would have only a limited ability to enforce that duty against an uncooperative skier.”
The main concern of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care. We are reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier.
The plaintiff argued that the statements in the employee manual that establish procedures on how to deal with ski accident create a duty.
These procedures include completing an accident reporting form, obtaining names and addresses of witnesses to the accident, obtaining witness statements and recording observations at the accident scene. Plaintiff argues that these provisions amount to the voluntary assumption of a duty to investigate accidents, particularly skier collisions.
However the court did not agree with this argument.
…we do not believe that the manual provisions show the assumption of this responsibility. The manual makes clear that the investigatory responsibilities placed on employees are for the protection of defendant with respect to suits against it.
So Now What?
Ski Patrollers are the most over worked and underpaid (or volunteer) people on the slope. The last thing you want is to do is to turn the patrol from care givers to cops.
Make sure that no one interprets anything you have or do as an obligation or duty. No employee should be identified, unless they have a badge, to identify people on the slopes causing harm. Your marketing material should explain the law, but make sure you do not imply you can or will do anything else. Make sure your employee manuals and training do nothing more than explain the law. You can ask for identification. You can remove lift tickets and season passes. You cannot do anything more than take back your property. If you feel the need to do more, than call for lawful assistance.
No one on the slopes has the authority to detain, apprehend or arrest another person, unless they have a badge.
Don’t turn the people on the slope who are loved by all, ski patrollers, into people on the slope skiers and boarders should be wary of.
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O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74
Posted: October 7, 2013 Filed under: Legal Case, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Vermont | Tags: Collision, duty, Killington, Killington Ltd., Mary Ryan O'Connell, Ski Patrol, skier collision, skier v. skier, Vermont Leave a commentO’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74
Mary Ryan O’Connell v. Killington, Ltd.
No. 93-394
SUPREME COURT OF VERMONT
164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74
August 4, 1995, Filed
COUNSEL: Thomas M. French, Brattleboro, for plaintiff-appellee.
Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellant.
JUDGES: PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
OPINION BY: JOHN A. DOOLEY
OPINION
[*74] [**41] DOOLEY, J. Defendant ski area, Killington, Ltd., appeals from a negligence judgment against it based on defendant’s failure to identify an unknown skier with whom plaintiff, Mary Ryan O’Connell, collided while skiing. On appeal, defendant claims that it owed no duty to plaintiff to identify the other skier, that plaintiff’s claim is barred because the jury found that the accident resulted from an inherent risk of skiing, and that the court made errors in its charge to the jury. We reverse.
[*75] On January 12, 1990, plaintiff was skiing one of defendant’s most difficult trails. She stopped to rest at the edge of the trail and was struck by another skier who lost control on the ice at the center of the trail. One of [***2] defendant’s ski patrollers, along with plaintiff’s sister, arrived at the scene shortly after the collision. Plaintiff requested that they obtain the name of the other skier. While the ski patroller was occupied with evaluating and stabilizing plaintiff’s injury, plaintiff’s sister spoke to the other skier, and requested that he follow plaintiff to the patrol station and identify himself. The skier failed to arrive at the patrol station as requested, and has never been identified. Plaintiff’s injuries proved serious, and she and her husband filed suit against defendant in Rutland Superior Court, complaining that defendant negligently (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff’s injuries were the consequence of her assumption of the inherent risks of skiing.
The trial court denied defendant’s motion for directed verdict, both at the close of plaintiff’s case and at the close of the evidence. The court submitted the failure-to-warn and the failure-to-identify counts [***3] to the jury. In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant’s employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant’s negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.
Based on the instructions, the jury found for defendant on the failure-to-warn count and on the failure to close the trail because it found that the accident resulted from an inherent risk of the sport of skiing. It further found that defendant had negligently failed to obtain the identity of the other skier and that its negligence was the proximate cause of the loss of plaintiff’s “right to compensation” from that skier for her injuries. The jury awarded plaintiff $ 71,108.69 in damages, and the trial court denied defendant’s motions for judgment notwithstanding the verdict and for a new trial.
Defendant raises three issues on [***4] appeal: (1) whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided [*76] with her; (2) whether plaintiff’s failure-to-identify claim is precluded by the jury’s finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and (3) whether certain instructions to the jury were proper. We agree with defendant’s position on the first issue and, therefore, reverse. Because the case must be dismissed, we do not reach the second and third issues.
Defendant first claims that it owed plaintiff no duty to obtain the identity of the other skier, and that, accordingly, the trial court erred by instructing the jury that could find that defendant’s employee manual created such a duty. We agree.
In deciding this question, we first note that although the Vermont Legislature has passed a statute governing liability vis-a-vis the obtaining of names of skiers involved in a collision, see 12 V.S.A. § 1038(b)(2), this accident preceded the effective date of the statute so that it does not apply to this case. In any event, we conclude that the result in this case [**42] is the same under either the common law or the statute. 1 [***5]
1 [HN1] 12 V.S.A. § 1038(b), effective June 21, 1994, provides, in part:
(b) Collision at a ski area.
(1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.
(2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.
[HN2] Common-law negligence requires that there be a legal duty owed by defendant to plaintiff, breach of that duty, that such breach be the proximate cause of plaintiff’s harm, and that plaintiff have suffered actual loss or damage. See Langle v. Kurkul, 146 Vt. 513, 517, 510 A.2d 1301, 1304 (1986). Clearly, the first of these elements, duty, [***6] is central to a negligence claim, and its existence is primarily a question of law. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). The imposition of a duty is “‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.'” Id. (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)).
Plaintiff’s theory is that defendant had a duty to obtain the name of the skier who collided with her so plaintiff could sue that skier for her damages caused by the collision. Under plaintiff’s theory, this duty arises, first and foremost, because plaintiff’s injury occurred on [*77] defendant’s land, held open to the public for skiing. See Restatement (Second) of Torts § 314A(3) (1965).
In Langle, through the discussion of decisions from other states, we identified a number of factors to consider in determining whether a duty exits. See Langle, 146 Vt. at 519-20, 510 A.2d at 1304-05. [HN3] These factors may include the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and plaintiff’s injury, the moral blame [***7] attached to defendant’s conduct, the policy of preventing future harm, the burden to the defendant, the consequences to the community of finding a duty, and the availability and cost of insurance. Id. We think that an additional factor is more significant herd — that is, that plaintiff seeks a duty to prevent purely economic loss. Negligence law does not generally recognize a duty to exercise reasonable care to avoid intangible economic loss to another unless one’s conduct has inflicted some accompanying physical harm. See Prosser & Keeton, supra, § 92, at 657; Breslauer v. Fayston School Dist. Vt. , , 659 A.2d 1129, 1132 (1995). Thus, a possessor of land open to the general public has a duty to aid and protect a member of the public coming on the land against unreasonable risk of “physical harm” only. Restatement (Second) of Torts § 314A(1)(a), (3). Physical harm does not include economic loss. See Breslauer, Vt. at , 659 A.2d at 1132; Restatement (Second) of Torts § 7(3).
Our review of the decisions from other jurisdictions indicates that, [HN4] absent a special relationship or undertaking, there is no duty to protect [***8] another’s litigation interest. For example, there is no duty to preserve possible evidence for another party to assist that party in future litigation against a third party. See Edwards v. Louisville Ladder Co., 796 F. Supp. 966, 969 (W.D. La. 1992); Murphy v. Target Products, 580 N.E.2d 687, 689 (Ind. Ct. App. 1991); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177, 1179 (Kan. 1987). A municipal police force has no duty to investigate motor vehicle accidents to identify possible tortfeasors. See Jackson v. Heymann, 126 N.J. Super. 281, 314 A.2d 82, 85 (N.J. Super. Ct. Law Div. 1973); Caldwell v. City of Philadelphia, 358 Pa. Super. 406, 517 A.2d 1296, 1303 (Pa. Super. Ct. 1986). Similarly, a taxicab company owes no duty to an injured passenger to identify the operator of the vehicle which caused the accident and injured the passenger. See Stupka v. Peoples Cab Co., 437 Pa. 509, 264 A.2d 373, 374 (Pa. 1970). An exception to this rule may exist when there is some special relationship or duty arising from contract, statute or other special circumstance. See Bondu v. Gurvich, 473 So. 2d 1307, 1313 [**43] (Fla. Dist. Ct. App. 1984) [*78] (claim against defendant hospital for destruction of evidence permitted because hospital [***9] had statutory duty to maintain medical records); Koplin, 734 P.2d at 1179.
This general principle has been applied to circumstances identical to those present here. Two reported decisions have concluded that a ski area has no duty to obtain the identity of a negligent skier who collides with and injures the another skier. See Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159, 1164 (Idaho 1990); Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59-60 (Minn. Ct. App. 1989). Based on its prediction of our negligence law, the United States District Court for the District of Vermont determined that a ski area has no duty to identify the negligent skier. See Emil v. Sherburne Corp., No. 80-22, slip op. at 2-3 (D. Vt. July 8, 1980). We agree with that court that the landowner’s duty does not extend to “assisting the prosecution of claims arising from . . . torts” of third parties also using the land. Id. at 3.
We adopt the reasoning of the above decisions and conclude that no duty exists in these circumstances. Although our primary reason is the economic nature of the interest plaintiff asserts, other factors also point to the absence of a duty here. The main concern [***10] of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care. We are reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier. See Caldwell, 517 A.2d at 1301 (police duty at accident scene was to ensure victim’s physical well-being in expediting her trip to the hospital, not to protect the financial interests of the plaintiff).
Moreover, even if the ski area had a duty to identify, it would have only a limited ability to enforce that duty against an uncooperative skier. This suggests that any recognition of a duty should come from the Legislature, which can provide the ski area the means to discharge the duty. In fact, the Legislature has provided, as of 1994, that a skier involved in a collision has the responsibility “to provide his or her name and local and permanent address to the other parties to the collision,” but has also made clear that the ski area has no duty to obtain that identification. 12 V.S.A. § 1038(b).
Finally, we consider plaintiff’s argument that there is a special circumstance present [***11] in this case that creates a duty. Plaintiff relies primarily on defendant’s employee manual that establishes procedures [*79] in case of ski accidents. These procedures include completing an accident reporting form, obtaining names and addresses of witnesses to the accident, obtaining witness statements and recording observations at the accident scene. Plaintiff argues that these provisions amount to the voluntary assumption of a duty to investigate accidents, particularly skier collisions. See Restatement (Second) of Torts § 323 (one who gratuitously undertakes “to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability” for “physical harm” resulting from negligent performance of undertaking).
Although we agree that defendant could voluntarily assume the duty to investigate accidents on behalf of injured skiers, we do not believe that the manual provisions show the assumption of this responsibility. The manual makes clear that the investigatory responsibilities placed on employees are for the protection of defendant with respect to suits against it. There is nothing to indicate that they were assumed [***12] as duties to third parties.
This exact claim was made and rejected in Northcutt v. Sun Valley Co., 787 P.2d at 1164. The court held that imposing such requirements on employees did not create a duty to skiers to act on the skiers’ behalf. This holding is consistent with our decisions in similar circumstances. In Smith v. Day, 148 Vt. 595, 538 A.2d 157 (1987), engineers on a railway train sued Norwich University when a university student shot at the train and injured them. We concluded that, although defendant sought to control its students via the imposition of numerous rules and regulations, it did not assume a duty to third persons to control the volitional criminal [**44] acts of the students. Id. at 598, 538 A.2d at 159. More recently, in Larocque v. State Farm Ins. Co., Vt. , , 660 A.2d 286, 288 (1995), we concluded that a liability insurer’s employee manual, while directing employees to investigate claims in an efficient and cooperative manner, did not create any duty to a particular claimant to process the claim in good faith and consistent with the manual. Citing Smith, 148 Vt. at 598, 538 A.2d at 158-59, we stated that conducting [***13] one’s “business in a way that [is] responsive to third-party claimants does not create a legally enforceable duty to do so with respect to a particular claimant.” Id. To the extent defendant’s policy intended that its employees identify colliding skiers to aid in litigation between [*80] them, we believe that the rationale of Larocque is controlling and prevents use of defendant’s manual to create a negligence duty. 2
2 Plaintiff relies upon a Colorado trial court decision that denied a ski area summary judgment in a failure-to-identify case similar to that here. Burgener v. Keystone Arapahoe Ltd. Partnership, No. 90 CV 215, slip op. at 3 (Colo. Dist. Ct., Summit County Sept. 5, 1991). In that case, the plaintiff argued successfully that the defendant assumed the responsibility to investigate in certain publications and materials that were distributed to the public, including the plaintiff. These were read and relied upon by the plaintiff’s husband, who skied with her. This case has none of the public promotional and reliance elements of Burgener and is distinguishable on that basis.
[***14] In adopting this position, we are necessarily rejecting the suggestion that the jury could decide whether the manual creates a duty to investigate and identify the other skier. The trial court’s supplemental charge to the jury appears to have adopted this approach. As we indicated earlier, the existence of a duty is primarily a question of law. See Denis Bail Bonds, Inc., 159 Vt. at 487, 622 A.2d at 499. Although the proper meaning of the employee manual may have been a question of fact for the jury, if a duty were present under some construction of the manual, the threshold question of whether the manual, however construed, could give rise to a duty was for the court. See Smith v. Day, 148 Vt. at 598 n.3, 538 A.2d at 159 n.3.
Reversed.
FOR THE COURT: John A. Dooley, Associate Justice
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Society for Conservation Biology’s Social Science Working Group (SSWG) seeks nominations
Posted: October 4, 2013 Filed under: Uncategorized | Tags: Conversation, SSWG Leave a commentCall for Nominations
The Board of the Society for Conservation Biology’s Social Science Working Group (SSWG) seeks nominations for five representatives to the SSWG Board to serve a two year term, beginning in November 2013.
The SSWG is a global community of conservation professionals interested in the application of social science to the conservation of biological diversity. Since its founding in 2003, the SSWG has grown to over 500 members in 60 countries. The SSWG is home to a diverse and multidisciplinary array of conservation researchers and practitioners, including social scientists, natural scientists, and humanities specialists from many different backgrounds. The SSWG Board has been active in developing and coordinating initiatives that best accomplish the mission of the SSWG, which is to strengthen conservation social science and its application to conservation practice.
We seek nominations of dedicated, creative, and enthusiastic individuals to provide leadership in the following five SSWG Board positions:
* Anthropology representative
* Psychology representative
* Geography representative
* Two At-large representatives
We welcome self-nominations and ask that you don’t nominate someone without his/her permission. Up to two nominees will be selected to run for each position. All nominees must be SCB and SSWG members in good standing. Applicants for the disciplinary seats should be able to demonstrate appropriate disciplinary training and scholarship to represent that field. All candidates should possess: (1) demonstrated commitment to SCB and SSWG (both the missions and the organizations); (2) sufficient time/capacity to provide leadership; (3) relevant research and/or practitioner experience.
Board members are expected to serve as the Chair of a standing SSWG Committee, implement current SSWG strategic plan and work plans, and support the SSWG’s goals in the following five areas:
1. Science. Advance scientific understanding of conservation as a social process.
2. Policy. Inform conservation decision-making through scientific dialogue and stakeholder engagement.
3. Capacity-building. Enhance the ability of scholars and practitioners to understand and address the social dimensions of biodiversity conservation.
4. Membership. Expand, diversify, and engage the SSWG membership.
5. Organizational development. Increase the capacity of the SSWG to achieve its mission.
More information about the SSWG (including strategic plan, work plans, and annual reports) is available at http://www.conbio.org/groups/working-groups/social-science. The SSWG Board includes members representing each of six social science disciplines (anthropology, economics, geography, political science, psychology, sociology), four at-large seats including a dedicated student seat, and the social science representative to the SCB Board of Governors. More information is available on the SSWG website.
Nominees should send a CV and a statement of interest (250 words maximum) to Robin Roth (SSWG Acting Nominations Committee Chair, rothr@yorku.ca <http://rothr@yorku.ca> ) by October 4th, 2013. Elections will begin at the end of October, 2013.
Thank you for your consideration!
Interbike 2013
Posted: October 2, 2013 Filed under: Cycling, Mountain Biking | Tags: bicycle, biking, Cycling, Interbike, National Bicycle Dealers Association, NBDA, Tradeshow Leave a commentThe Good, The Bad, The Ugly and the Confusing
Overall, I believe Interbike was a success for the exhibitors attending and indoors.
New Venue: The show moved from the Sands to the Mandalay Bay Convention center. I had been to the convention center many times for the ski show and was familiar with the venue. Everyone else seemed confused with the new venue and booth arrangement. However, that confusion had a big payoff. The smaller 10 x 10 booths that normally don’t see anyone till late the first day or later were packed from the beginning. I talked to one exhibitor who had expected to have meetings the morning of the first day and did not get to them because of the traffic. That’s great.
Overall everyone thought traffic was good and constant.
Mandalay Bay’s food court was closed so that left few options for food. 4 options actually, all with the same fare. Day 1 and 2 the food was expensive but great. Day 3 the lettuce started to wilt. $7.50 for a Gatorade was also a little tough, but I should be used to it by now at trade shows.
When the Food court is open, life will get better. More and better food options are always great at a trade show.
Part of the show was outside. In theory, it was a great idea, the opportunity to test bikes, check out things what would not fit or would be hard to get into a trade show. The only problem was Mother Nature did not cooperate. It was hot. Most attendees got about 150’ out to the “paddock” and quit, returning quickly to the air-conditioned indoors. However the idea works.
The venue did bring back the crit. Having two bicycle races at a tradeshow, cyclecross and a crit are great! Two of the best reasons to attend the show is to relax after the day on the show floor and watch racing rather than crowing into a bar and not getting served (sorry started thinking about OR at SLC).
It would be nice to have a couple of straight aisles to move from one end of the show to the other. It helps with orientation also.
The overall opinion of the move to Mandalay Bay from the Sands: nicer bathrooms.
Eventually, everyone will know where everyone else is and things will settle back to the old familiarity everyone felt at the Sands. Mandalay Bay is smaller than the sands, but with the outdoor space, (weather permitting) and how much nicer the entire area is, Mandalay Bay will work.
Traffic: Traffic was down; Interbike preliminary numbers reported “Overall attendance was down 7 percent from 2012”. I think 7% is optimistic. Day two of the demo seemed that way to everyone I talked to. However, the total numbers do not matter; it only matters if the right people were there and every exhibitor I talked to accept one said they were happy with the attendance.
The one exhibitor who thought numbers were down was upstairs in the main hall and could have been downstairs in health and fitness business. That area was light, light might not be the best word, void might be better.
Walking through the health and fitness business section, it seemed like the same number of exhibitors were there. However buyers were not. Part of the problem was there was nothing on the main show floor saying where to find H&F Biz. or how to get there. I finally asked someone on how to get to the H&F Biz.
The App. The Interbike App was much better, must faster and worth downloading. Don’t go to a tradeshow and not use the app if they have one. The only problem was people walking around following their phones and having me bump into them……or maybe I was following my phone and bumping into them…..
Demo. The demo is the best part of Interbike. You get to ride bikes and figure out how bikes ride. You can compare bikes side by side or ride by ride. You get to talk to the mechanics, the people who work on the bikes and ask them questions about what works and what does not work. I’m afraid that Interbike will become like the ski show. People show up for the demo and skip the tradeshow.
Consumer Day: The major talk of the show was Consumer Day: The big talk for the entire show, instead of what was new, consumer day. Originally, Interbike tried to entice retailers to bring six of their best clients to Vegas and attend Interbike on the last day, for $50 each. That was expanded to anyone who attended Vegas Cyclecross and paid less, then anyone who rode the Vegas Fondo, then members for People for Bikes. Supposedly, the difference in what you paid was a different swag bag.
Exhibitors had three issues throughout the show: How was it going to work? Information was either hard to find or just missing as far as most exhibitors were concerned.
They’re going to steal us blind. One booth used plastic wrap on their booth each night to prevent theft when no one was in the booth. Friday morning they left the wrap on.
Can we sell to the people coming in? Many exhibitors pay for part of their costs and save shipping by selling to the exhibitors the last day. Retailers have a great deal on product and exhibitors have less to pack and ship and a little cash in their pocket at the end of the show. Exhibitors were met Friday morning with a piece of paper warning them not to sell anything on the last day. This was met with mixed reaction. Some booths that normally sold everything packed up everything and some booths were empty just as they normally were.
Consumer badges had a yellow/tan background. I started counting them when I saw them. I waited by the main door at 9:00 am expecting a rush of consumers. There was no rush of anyone. (I could have been at the wrong door…..) By 4:00 Pm I had counted 36 consumer badges. I did not search; I just counted if I saw a badge. By mid-morning, many consumers had turned their badge around so they were not identifiable as a consumer, so I’m sure there were more people than 36 consumers.
Interbike reported that “Preliminary data shows that approximately 750 verified consumers attended Interbike’s 1st consumer-access day on Friday, September 20th.” I think that is a little bit of a stretch or they reported something wrong. There were not 750 people on the show floor combined on Friday: Exhibitors, Buyers, Media and Consumers. I can’t believe I missed 714 people walking around the show floor.
The biggest tragedy of consumer day was exhibitors thought the consumers had chased buyers away. The exhibitors seemed right. There appeared to be a lot less buyers on the floor the last day. This was an open discussion on the floor throughout Friday.
The one funny thing is what the “consumers” did buy. Las Vegas has a dozen booth filler companies as I call them. I met one at an Interbike a while ago. They live in Vegas and make a living selling stuff at tradeshows. Many times they have nothing to do with the show. They are contacted by the convention center owners or the tradeshow when a tradeshow has space. They just quickly move in, set up and sell what they have. It is better to have “what are they doing here” booths than empty space according to my source.
At this year’s Interbike half of the consumers were walking around with bags from one of these booths. It was some sort of muscle stimulate selling for $60+ dollars on the show floor and available online for $5.
At least there wasn’t a personal injury law firm with a booth like last year.
Should you attend?
Yes. You should always attend your industry tradeshow.
1. You find new things. Not in the big booths, but the next new thing that sits by your counter or in five years may occupy a large portion of your showroom floor. Small companies can’t hire reps and can’t come to see you. The next great bicycle thing only shot is the national tradeshow. That five minutes they can grab from you aisle you walk the back rows may be your profit next year.
The big booths have reps; the small booths have one shot.
2. You need to learn. Not just from the education seminars but from everyone there. Standards change. The legal balance on how you run your store shifts with what some think is the wind. The best chance you have to stay on top of these issues is attending a trade show. Conversations in booths and in aisles can make big difference in how you run your store.
3. Industry Support. The industry’s only real chance together is at a tradeshow. Those people, who volunteer their time and money to serve on boards for you, need to know it is worth their time and effort. You should show up to show the organizations that serve you, both as a retailer and a rider, that they are doing a good job. You need to let them know you care. The National Bicycle Dealers Association (NBDA) booth was staffed by a board member the entire show. You could walk up at any time and talk about your issues, gain their insight and let them know you appreciate their efforts.
4. You put a face on an email or a phone number. Relationships are the key to the cycling industry. The stronger the relationship the better you and the industry. When you know who you are dealing with. When their face pops into you mind when you answer the phone the better your store or your
If nothing else you can stand around with the rest of us and watch consumers walk around…….
What do you think? Leave a comment.
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What a Government Shutdown means to individuals
Posted: October 1, 2013 Filed under: Uncategorized | Tags: Governement Shutdown, Grand Canyon, National Park Service, NPS, Rafting, Whitewater Rafting Leave a commentCurious about how the Government Shutdown will affect some people. Read this email from the Utah Rafters List Serve!
As a United States Government shutdown looms large, plans are now in place to close all National Parks across the country on October 1, 2013. The closures will impact all recreational opportunities at Lee’s Ferry, Arizona, including the cancellation of all river trips.
According to Grand Canyon National Park officials, river runners who have already launched downstream into Grand Canyon National Park will be able to complete their river trip. Glen Canyon National Recreation Area officials, who operate Lee’s Ferry, note that should the government shutdown go into effect, the closure of Lee’s Ferry will start with a “soft closure” beginning at 8:00 am, with a hard closure from noon on, after which no river trips will be allowed to launch.
Kansas river runner Hilary Esry won the river permit lottery last year for an October 7, 2013 launch date after first becoming interested in running Grand Canyon twenty years ago. “We have friends flying in from as far away as Alaska on non-refundable tickets and have spent over $17,000 so far in NPS fees, food and equipment rental. I have a contract with the Federal Government allowing me to launch, and so far, I have not been contacted from the National Park Service at all about a pending closure of the Colorado River in Grand Canyon” she said. “We expect to be on our own and except for the mandatory orientation at Lee’s Ferry, we do not expect to interface with anyone from the NPS. I can’t tell you how nerve wracking this is for our trip.”
The Grand Canyon National Park web site states there are sixteen river trips scheduled to launch in the first seven days of October. Thirteen of those trips are public trips while three are concession guided river trips. There are sixty-one river trips scheduled for the month of October, twelve of which are concessions trips and forty-nine are public trips.
Officials at Glen Canyon National Recreation Area also stated roadwork on the Lee’s Ferry road will continue, as the funds for that project are non-appropriated funds. River runners who have parked their vehicles at the long term parking lot at Lee’s Ferry will be allowed to retrieve their vehicles but this will require a law enforcement escort.
Fishing at Lee’s Ferry, including from the bank and by boat, both public and guided, will not be allowed. The smooth water concessions river trips from the base of Glen Canyon Dam downstream to Lee’s Ferry will also cease operation.
The same will happen at all National Parks. I was talking to the River Rangers for other parks and they fell like crap. People who have waited for months or in the Grand’s case for years may not get to experience the fun, adventure and beauty of a river trip through one of America’s treasurers.
Really, fishing is prohibited……
If you agree to the rules you have to follow the rules
Posted: September 30, 2013 Filed under: Delaware, Mountain Biking, Release (pre-injury contract not to sue) | Tags: Bike Race, Cycling, DE, Delaware, Delaware Trail Spinners, Mountain biking, National Offraod Bicycle Association, NOBA, Release, Rules, Sanctioning, Sanctioning Body, Standard of Care, Standards, U.S. Cycling Federation 2 CommentsSanctioning body said you must do XYZ, which creates a standard of care you will be judged by
McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)
Plaintiff: Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased
Defendant: National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners
Plaintiff Claims: negligence
Defendant Defenses: release
Holding: for the plaintiff, sent back for trial
In this case the deceased was racing in an Off Road [Mountain] Bike Race when he died of dehydration. The lawsuit was started by his parents against the organizations that sanctioned the race, NORBA, the race, and the race course owner. The suit alleged failure of the standards created by the sanctioning organization even though race had agreed to follow the standards.
The decedent died racing in a mountain bike race after being discovered along the race course unconscious. This was the deceased second NORBA race. There were no water or aid stations along the course. However the riders had access to their own water bottles on their bikes.
The plaintiffs argued there was no way for a beginner to access their water bottle on the course because it was so difficult unless they stopped riding. The only water available was what the participants brought with them. No physician, ambulance or emergency medical personnel at the race.
As a sanctioned race, NORBA provided defendant Delaware Trail Spinners the race organizer, with a “Pre-Event Planning Checklist.” In order to host the event the defendant Trail Spinners had to go through the checklist and agree to abide or provide the items on the checklist. The race director for Trail Spinners specifically stated that “there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race.” NORBA also sends an official who according to the checklist will confirm issues and sign off on the checklist. In this case the NORBA representative did not sign off on the checklist.
To be able to race participants had to sign a one day membership to NORBA and sign a release. The court pointed out that no one explained the release to the participants. The back of the trial membership form said that everyone had to carry 8 ounces of water and that if the race exceeded sixty minutes NORBA would provide water to the race participants.
Before the race began one of the Trail Spinners race organizers, spoke to the 80 to 100 race participants. He told them without a bullhorn or PA system that there was no ambulance on site, but that one could be called if needed. He also told the contestants to be “”careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.”
The deceased was found after a search in an unconscious state off the trail. The friend called 911 from his cell phone and went and got assistance back at the race headquarters. When he arrived back with two people to help him they started CPR. The deceased bike still had a water bottle with water in it. The deceased died of heat stroke fifteen days later.
Summary of the case
Delaware law, the state where the race was held, was the law applied to this case. The defendants filed a motion for summary judgment based on the release and the defense of primary assumption of the risk. Delaware merged secondary assumption of risk with comparative negligence, however Primary or express (written) assumption of risk is still a defense. The court defined the differences as:
Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.”
The court quickly concluded that the summary judgment granted by the lower court should be overturned. The court felt that
…genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race.
The court reviewed the record of the case pointing out every place where the requirements set forth by the sanctioning body, NOBA were not met by the race. (Whether those issues would have made a difference was never discussed.)
The court then shifted and wrote that because it could be argued that the deceased did not understand the release was a waiver of the risks that it was a material fact, which voided the release.
In the present case, plaintiffs assert that a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.
The court arrived at this decision by stating the law and then interpreting it differently than all other courts had interpreted the law.
However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms.
Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous.
If you don’t understand what you are signing, then the release was not clear and unambiguous. I know of no other case that has argued that before.
So Now What?
The obvious issue here was the written documentation that required water and first aid and the documentation given to the deceased that stated water would be available where not available. Every race, camp, organization needs to develop a checklist or risk management plan so they can operate. However, as in this case, failing to follow any checklist was enough to lose the defenses of Primary Assumption of the Risk and Release and send your case to trial.
ØIf it is written down and you agree to it, you must follow it.
ØIf it is written down by an organization that you belong to or are sanctioned by, then you must agree to it.
ØIf an organization that you belong to writes a standard, then you must meet the standard!
The court then looked at these facts and was not happy. It then applied the facts in such a way that the court could find the release invalid and send it back for trial.
To see other cases where the defendant lost because they violated their trade associations standard of care see:
ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp http://rec-law.us/zmKgoi
Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp http://rec-law.us/y7QlJ3
Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for. http://rec-law.us/14MebM4
Plaintiff uses standards of ACCT to cost defendant $4.7 millionhttp://rec-law.us/11UdbEn
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent http://rec-law.us/wszt7N
To Read other articles about standards see:
Can a Standard Impeded Inventions? http://rec-law.us/yOcca2
Playgrounds will be flat soon http://rec-law.us/zGC4DZ
Staying Current http://rec-law.us/ArdsVk
Stop Feuding, I doubt, move forward anyway, I think you can. http://rec-law.us/P763zu
This is how a standard in the industry changes http://rec-law.us/w76X3K
Words: You cannot change a legal definition http://rec-law.us/AbJ540
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McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)
Posted: September 30, 2013 Filed under: Delaware, Legal Case, Mountain Biking, Release (pre-injury contract not to sue) | Tags: Bike Race, Cycling, DE, Delaware, Delaware Trail Spinners, Mountain biking, National Offraod Bicycle Association, NOBA, Release, Rules, Sanctioning, Sanctioning Body, Standard of Care, Standards, U.S. Cycling Federation Leave a commentMcDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)
Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased, and Arthur Mcdonough in his own right and as Administrator of the Estate of Bradley Alan Mcdonough, Plaintiffs, v. National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners, Defendants.
C.A. No. 95-504-SLR
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
1997 U.S. Dist. LEXIS 8036
June 2, 1997, Decided
NOTICE: [*1] FOR ELECTRONIC PUBLICATION ONLY
DISPOSITION: Defendants’ motion for summary judgment denied.
COUNSEL: For plaintiffs: Donald Eilhu Evans, Esquire, Wilmington, Delaware. Of Counsel: Edwin F. McCoy, Esquire., Philadelphia, Pennsylvania.
For defendants: Mason E. Turner, Esquire, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Delaware.
JUDGES: Sue L. Robinson, District Judge
OPINION BY: Sue L. Robinson
OPINION
MEMORANDUM OPINION
Date: June 2, 1997
Wilmington, Delaware
ROBINSON, District Judge
I. INTRODUCTION
This case is a wrongful death/survival action filed as a result of Bradley McDonough’s (“McDonough”) death on August 30, 1993. Plaintiffs are Arthur and Linda McDonough, the parents of the decedent (collectively referred to as “plaintiffs”). Defendants are The National Off-Road Bicycle Association (“NORBA”), United States Cycling Federation (“Federation”), and the Delaware Trail Spinners (“Trail Spinners”). The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Presently before the court is defendants’ motion for summary judgment. (D.I. 66) For the following reasons, defendants’ motion for summary judgment shall be denied.
II. BACKGROUND
[*2] In the summer of 1993, Bradley McDonough developed an interest in off-road bicycle competition. In the spring or early summer of 1993, McDonough acquired an off-road bike (also known as a mountain bike) and rode with his college friends, Randall Blaker (“Blaker”), Michael Odenwald (“Odenwald”), and Kenny Steidle (“Steidle”). (D.I. 71 at A51-A52) On August 8, 1993, McDonough, Blaker, Odenwald and Steidle participated in a NORBA sanctioned event in Windham, New York (“Windham race”). (D.I. 71 at A51) In all NORBA events, participants are required to obtain a permanent membership or a one-day trial membership. The application for the one-day membership contains a section entitled “Agreement and Release of Liability” (“release”). (D.I. 68 at A3)
On the day of the Windham race, McDonough, along with his friends, paid for a one-day trial membership and signed the release. (D.I. 71 at A 54-55; D.I. 68 at A5) In signing the release, Blaker stated that he did not really read it, but simply skimmed through it. (D.I. 71 at A54) Blaker stated that he assumed it was a release “to some degree and we understood that we were involved in a sport.” (D.I. 71 at A54-A55)
The Windham race course was [*3] basically a two lap course. (D.I. 71 at A56) McDonough and Steidle quit after one lap because they were tired. (D.I. 71 at A56) Blaker, who was behind McDonough and Steidle, also stopped after the first lap since his friends had stopped. (D.I. 71 at A56) Odenwald did not complete the race either, because his bicycle broke. (D.I. 71 at A56) All four friends had water bottles on their bikes during the race. (D.I. 71 at A54)
On August 15, 1993, McDonough and Blaker participated in another NORBA sanctioned event in Delaware, called the C & D Canal Classic (“C & D race”). (D.I. 84 at A109) The C & D race consisted of three race levels: (1) Beginners’; (2) Sport; and (3) Pro/Expert. (D.I. 71 at A22) McDonough and Blaker both entered the Beginners’ level. (D.I. 71 at A23 and A59) The Beginners’ course was a 14 mile course “over the local terrain which included steep and gradual hills, open gravel and dirt roads, and wooded trails.” (D.I. 71 at A23) The Sport and Pro/Expert courses also used the same 14 miles designated for the Beginners’ course. (D.I. 71 at A38)
The Beginners’ course was difficult because of its layout. (D.I. 71 at A38) The terrain on the Beginners’ course made it difficult [*4] for riders to access their own water without stopping. (D.I. 71 at A38) Some areas on the course were smoothed out so that riders could stop or ride slowly and access their water bottles. (D.I. 71 at 38) The course, however, did not have any neutral area where water was given out to the race contestants. (D.I. 71 at A38) The only water the race contestants could drink was the water that they brought themselves. (D.I. 71 at A38) No physician was present at the race. (D.I. 71 at A24) There was neither an ambulance nor emergency medical personnel present at the race site. (D.I. 71 at A23) Denise Dowd (“Dowd”), another participant in the Beginners’ level, stated that the course was “difficult due to the heat and humidity and layout.” (D.I. 71 at A87) Although Dowd is an avid biker and had participated in approximately 20 mountain bike races, it took her over an hour and fifteen minutes to complete the course. (D.I. 71 at A87)
Defendant Trail Spinners, a NORBA club member, received sanctioning from NORBA to promote the C & D race. In order to receive sanctioning, defendant Trail Spinners had to complete a “Pre-Event Planning Checklist” (“Checklist”) provided by NORBA. (D.I. 84 at A109-A110) [*5] The Checklist contains several questions relating to the safety precautions taken for the event. Trail Spinners, through its race director William Bowen (“Bowen”), represented on the Checklist that there would be, inter alia, emergency medical assistance on site and adequate water for the participants and spectators. (D.I. 84 at A110) Bowen specifically represented that there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race. (D.I. 84 at A110) The Checklist also provided that: “A NORBA Official must be present at your event. The NORBA Official will complete their portion of the checklist before allowing the event to proceed.” (D.I. 84 at A109) The Checklist identifies Elizabeth Small (“Small”) as the NORBA Official. Small, however, did not complete her portion of the Checklist and did not sign it. (D.I. 84 at A110)
When McDonough arrived at the race site, he again paid for a one-day trial membership and signed the release. (D.I. 68 at A7) Blaker also paid for a one-day trial membership and signed the release. (D.I. 71 at A59) No one at the race site explained the documents to the race participants. (D.I. [*6] 71 at A41) The release provides in part:
I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that NORBA is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement with NORBA to issue an amateur license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge NORBA and the United States Cycling Federation, its employees, agents, members, sponsors, promoters, and affiliates from any and all liability, claim, loss, cost or expense, and waive any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, in which I may participate as a rider, team member or spectator.
(D.I. 68 at A5) On the back of the trial membership and release certain “Racing Regulations” are set forth. (D.I. 68 at A8). At section 4.6, NORBA recommends that each participant carry “at least [*7] 8 ounces of water.” (D.I. 68 at A8) Section 5.6 provides that neutral water will be provided for any race that exceeds 60 minutes in length. (D.I. 68 at A8)
According to James McGroerty (“McGroerty”), the President, Officer, and Co-Founder of Trail Spinners, it is commonly understood by those who participate in races that they are required to sign the release. (D.I. 71 at A45) McGroerty stated that: “Most of [his] friends who are avid racers look at the form as you are signing this paper basically saying yes, I am doing this race at my own risk on the course. If I get hurt, it’s my own fault. It’s basically the way we look at it when we sign these forms and compete in an event.” (D.I. 71 at A45) Dowd, who also signed the release that day, stated that she understood that the release was intended to protect the defendants from liability. (D.I. 71 at A89) Dowd, however, did not believe that the release was intended to relieve the defendants from providing “common sense safety precautions, particularly on site trained medical personnel with an ambulance.” (D.I. 71 at A89) Dowd stated that she would not have signed the release if she had known there was no medical assistance immediately [*8] available. (D.I. 71 at A89)
Before the start of the race, McGroerty addressed the race contestants from the hood of his car. (D.I. 71 at A38 and A42) He addressed the participants without a bullhorn. (D.I. 71 at A37) There were approximately 80 to 100 total participants in the group that raced with McDonough and Blaker. (D.I. 71 at A37 and A62) McGroerty told the race contestants that there was no ambulance on site, but that one could be called. (D.I. 71 at A42) McGroerty did not specifically warn the participants about heat exhaustion. (D.I. 71 at A42) Instead, McGroerty told the contestants to be “careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” (D.I. 71 at A42) McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” (D.I. 71 at A42) Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.” (D.I. 71 at A42) McGroerty did not get any questions after he addressed the participants. (D.I. 71 at A37) McGroerty testified that he does not have Red Cross, CPR or EMT certification of any kind. (D.I. 71 at A43) He [*9] also does not know the signs of exertional heat stroke. (D.I. 71 at A43)
At approximately 9:00 a.m., McDonough and Blaker left the starting line with other contestants. (D.I. 71 at A23 and A62) Both McDonough and Blaker had brought water bottles with them. (D.I. 71 at A61) The temperature on that day was “extremely hot [] with high humidity.” (D.I. 71 at A85) Although McDonough and Blaker began the race together, they were separated because Blaker had a flat tire. (D.I. 71 at A63) After Blaker changed his flat tire, he continued in the race and eventually completed the course. (D.I. 71 at A64) McDonough, however, did not. (D.I. 71 at A64)
McGroerty found McDonough when he went to investigate whether some participants had accidently or deliberately missed the course markings. (D.I. 71 at A44) McGroerty first saw McDonough’s bike. As he approached the bike, he saw McDonough who was about five or six feet from his bike. (D.I. 71 at A44) According to McGroerty, other participants would not have seen McDonough since he was off to the side of the course, but could have seen his bike. (D.I. 71 at A44)
When McGroerty found McDonough, he was on the ground lying on his side and his breathing [*10] was heavy and labored. (D.I. 71 at A44) McDonough appeared to have trouble breathing and was not responsive. (D.I. 71 at A44) According to McGroerty, McDonough appeared to be unconscious. (D.I. 71 at A44) Based on these observations, McGroerty called 911 from his cellular phone. (D.I. 71 at A44) After calling 911, McGroerty went to the start/finish area and sought assistance. (D.I. 71 at A42 and A87) He led two people back to where McDonough was found and they administered CPR until an ambulance arrived. (D.I. 71 at A42 and A87-A88) According to Dowd, one of the two people who administered CPR, no one gave McDonough any water before the ambulance arrived because no water was provided. (D.I. 71 at A88) Blaker, however, testified that when McDonough’s bike was brought back from where McDonough had been found, it still had a water bottle attached to it that was half full. (D.I. 71 at A65)
Dowd stated that the race was “generally disorganized” and that there was a lot of confusion. (D.I. 71 at A86) According to Dowd, the race was delayed for 30 minutes and no maps of the course were given to the participants or posted. (D.I. 71 at A87-A88) Small, the NORBA official on duty at the race, [*11] reported to NORBA that the “race director [Bowen] was ‘light’ in the emergency medical area.” (D.I. 84 at A110) Small also reported that no course maps were available, but that the course was adequately marked. (D.I. 84 at A110) Overall, Small stated that mistakes were made since no water was provided, no emergency medical personnel were on site, and the course was too long. (D.I. 84 at A114)
Dowd stated that it took her about 5 minutes to reach McDonough and that the ambulance arrived 10 to 15 minutes after she began administering CPR. (D.I. 71 at A88) When the ambulance arrived, McDonough was treated by paramedics and helicoptered to the Medical Center of Delaware in Christiana, Delaware. (D.I. 71 at A23) Although hospitalized, McDonough died of heat stroke on August 30, 1993. (D.I. 70 at 1)
III. DISCUSSION
1. Summary Judgment Standard
[HN1] Summary judgment should be granted only if a court concludes that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). [HN2] The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. [*12] Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Once the moving party has carried its initial burden, the nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Id. at 587. “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The mere existence of some evidence in support of the nonmoving party will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that factual issue. Anderson v. Liberty Lobby, [*13] Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This court, however, must “view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) (citation omitted).
2. Express or Primary Assumption of Risk
[HN3] Since Delaware adopted a comparative negligence statute, 1 it has become necessary to distinguish between primary and secondary assumption of the risk. Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992); cf. Bib v. Merlonghi, 252 A.2d 548, 550 (Del. 1969) Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.” Koutoufaris, 604 A.2d at 397-398. With the adoption of the comparative negligence statute in Delaware, secondary assumption of risk became “totally subsumed within comparative negligence.” Id. at 398. Primary assumption of risk, however, still exists as [*14] a complete bar to recovery. See id. (stating that primary assumption of risk “might well constitute a complete bar to recover, as a matter of law, even in a comparative negligence jurisdiction”) (citation omitted); see also Patton v. Simone, 626 A.2d 844, 852 (Del. Super. Ct. 1992); see also Staats v. Lawrence, 576 A.2d 663, 668 (Del. Super. Ct. 1990).
1 In 1984, Delaware adopted a modified comparative negligence statute, which allows a jury to apportion liability where both parties are negligent only if the plaintiff’s negligence is less than fifty percent. 10 Del. C. § 8132 (1984).
Defendants argue that plaintiffs’ action is barred, as a matter of law, because McDonough expressly assumed the risks inherent in an off-road bicycle race when he signed the release. Defendants contend that the release, in plain and unambiguous language, is intended to protect defendants from all liability arising out of any hazards encountered in an off-road bike race. (D.I. 78 at 9) Defendants assert that McDonough, [*15] as a college graduate and former participant in a NORBA event, must have had an understanding of the these inherent dangers when he signed the release. As further support, defendants note that McDonough signed an identical Agreement and Release just one week prior to the C & D race. Based on these facts, defendants assert that summary judgment is appropriate.
In considering the facts and making all reasonable inferences in plaintiffs’ favor, the court finds to the contrary. [HN4] A release will not be set aside if the language is clear and unambiguous. Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, Civ. A. No. 85-618 CMW, 1986 WL 535 at *2 (D. Del., Dec. 31, 1986) (citing Chakov v. Outboard Marine Corp., 429 A.2d 984, 985 (Del. 1981); see Bennett v. United States Cycling Federation, 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55, 58 (Cal. Ct. App. 1987). [HN5] Where the language of a release is ambiguous, it must be construed strongly against the party who drafted it. Hallman, 1986 WL 535 at *2; Bennett, 239 Cal. Rptr. at 58. [HN6] In an express agreement to assume a risk, a plaintiff may undertake to assume all risks of a particular relation or situation, whether they are known or unknown to him. [*16] Restatement (Second) of Torts, § 496D, cmt. a, (1965). However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms. Bennett, 239 Cal. Rptr. at 58. As the Bennett court stated, “there is little doubt that a subscriber of a bicycle release . . . must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen.” Id. These hazards include “collisions with other riders, negligently maintained equipment, bicycles which were unfit for racing but nevertheless passed by organizers, [and] bad road surfaces . . . .” Id. Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous. Hallman, 1986 WL 535 at *2. The evidence must establish that the parties intended the release to apply to the particular conduct of the defendant which has caused the harm. Restatement (Second) of Torts, § 496B, cmt. d, (1965).
In the present case, plaintiffs assert that [*17] a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.
IV. CONCLUSION
For the reasons stated above, the court shall deny defendants’ motion for summary judgment. An order will issue consistent with this memorandum opinion.
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FIS Rules for skiing come with commentary to help interpret the rules
Posted: September 25, 2013 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Federation Internationale de Ski, FIS, International Ski Federation, Rules, ski area, skiing, snowboarding Leave a commentPiste means ski slope.
Have you ever heard of FISFederation Internationale de Ski or International Ski Federation? You probably have if you have watched any international, Olympic or World cup ski competition. FIS is the association that controls those events.
FIS is also an international ski body that does more than races. In most countries of Europe and others, FIS is the ski association.
FIS has created a set of rules for skiing similar, and in my opinion, better than the US your responsibility code.
The Ten FIS Rules can be found here.
FIS developed Ten Rules for Skiing:
1. Respect for others A skier or snowboarder must behave in such a way that he does not endanger or prejudice others.
2. Control of speed and skiing or snowboarding A skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather as well as to the density of traffic.
3. Choice of route A skier or snowboarder coming from behind must choose his route in such a way that he does not endanger skiers or snowboarders ahead.
4. Overtaking a skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement.
5. Entering, starting and moving upwards a skier or snowboarder entering a marked run, starting again after stopping or moving upwards on the slopes must look up and down the slopes that he can do so without endangering himself or others.
6. Stopping on the piste unless absolutely necessary, a skier or snowboarder must avoid stopping on the piste in narrow places or where visibility is restricted. After a fall in such a place, a skier or snowboarder must move clear of the piste as soon as possible.
7. Climbing and descending on foot a skier or snowboarder either climbing or descending on foot must keep to the side of the piste.
8. Respect for signs and markings
A skier or snowboarder must respect all signs and markings.
9. Assistance
At accidents, every skier or snowboarder is duty bound to assist.
10. Identification Every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.
Why do I like the FIS Ten Rules. For two major reasons, it proves that Your Responsibility Code is not THE world wide rules and because the rules make more sense.
People are constantly trying to put value on specific parts of Your Responsibility Code. Trying to prove that one part is more important than another. The FIS rules eliminate that priority argument because it is written in a better way, less on burden, more on working to improve skiing. The Ten FIS Rules are also broader, not just short sentences to be memorized.
The Rules also come with commentary to help further explain what they are supposed to impart.
General Comments on the FIS Rules
(Wording 2002)
Skiing and Snowboarding like all sports entail risks.
The FIS Rules must be considered an ideal pattern of conduct for a responsible and careful skier or snowboarder and their purpose is to avoid accidents on the piste.
The FIS Rules apply to all skiers and snowboarders. The skier or snowboarder is obliged to be familiar with and to respect them.
If he fails to do so, his behavior could expose him to civil and criminal liability in the event of an accident.
Rule 1 Skiers and snowboarders are responsible not only for their own behavior but also for their defective equipment. This also applies to those using newly developed equipment.
Rule 2 Collisions usually happen because skiers or snowboarders are moving too fast, out of control or have failed to see others. A skier or snowboarder must be able to stop, turn and move within the ambit of his own vision.
In crowded areas or in places where visibility is reduced, skiers and snowboarders must move slowly especially at the edge of a steep slope, at the bottom of a piste and within areas surrounding ski lifts.
Rule 3 Skiing and snowboarding are free activity sports, where everyone may move where and as they please, provided that they abide by these rules and adapt their skiing and snowboarding to their personal ability and to the prevailing conditions on the mountain.
The skier or snowboarder in front has priority. The skier or snowboarder moving behind another in the same direction must keep sufficient distance between himself and the other skier or snowboarder so as to leave the preceding skier or snowboarder enough space to make all his movements freely.
Rule 4 A skier or snowboarder who overtakes another is wholly responsible for completing that maneuver in such a way to cause no difficulty to the skier or snowboarder being overtaken. This responsibility rests with him until the overtaking maneuver has been completed. This rule applies even when overtaking a stationary skier or snowboarder.
Rule 5 Experience proves that joining a piste or starting again after stopping are the sources of accidents. It is absolutely essential that a skier or snowboarder finding himself in this situation enters the piste safely and without causing an obstruction or danger to himself or others.
When he has started skiing or snowboarding properly again – even slowly – he has the benefit of rule 3 as against faster skiers and snowboarders coming from above or behind.
The development of carving skis and snowboards allows their users to carve and turn upwards on the slopes. Hence they move opposite to the general downhill traffic. They must, therefore, make sure in time that they can do so without endangering themselves and others.
Rule 6 Except on wide pistes stops must be made at the side of the piste. One must not stop in narrow places or where it is difficult to be seen from above.
Rule 7 Moving against the general direction poses unexpected obstacles for the skiers and snowboarders.
Footprints damage the piste and can cause danger to skiers and snowboarders.
Rule 8 The degree of difficulty of a piste is indicated in black, red, blue or green. A skier or snowboarder is free to choose whichever piste he wants.
The pistes are also marked with other signs showing direction or giving warnings of danger or closure. A sign closing a piste, like one denoting danger, must be strictly observed. Skiers and snowboarders should be aware that warning signs are posted in their own interests.
Rule 9 It is a cardinal principle for all sportsmen that they should render assistance following an accident independent of any legal obligation to do so. Immediate First Aid should be given, the appropriate authorities alerted and the place of the accident marked to warn other skiers and snowboarders.
FIS hopes that a hit and run offence in skiing and snowboarding will incur a criminal conviction similar to hit and run offence on the road and that equivalent penalties will be imposed by all countries where such legislation is not already in force.
Rule 10 Witnesses are of great importance in establishing a full and proper report of an accident and therefore everybody must consider that it is the duty as a responsible person to provide information as a witness.
Reports of the rescue service and of the police as well as photographs are of considerable assistance in determining civil and criminal liability.
Take a look, you might find a lot of things you like as a skier, boarder or manager of a ski area.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss Jim Moss
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, FIS, Federation Internationale de Ski, International Ski Federation, Rules, Skiing, Snowboarding, Ski Area,
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Updates from the Mammut Barryvox Avalanche Beacon
Posted: September 24, 2013 Filed under: Avalanche, Ski Area, Skiing / Snow Boarding | Tags: avalanche, Avalanche Beacon, backcountry, Backcountry skiing, Barryvox, Barryvox Mammut, Mammut, skiing Leave a comment |
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Release and proof of knowledge stop claim from bicycle racer.
Posted: September 23, 2013 Filed under: Cycling, Kansas, Release (pre-injury contract not to sue) | Tags: Assumption of risk, bicycle, Bicycle Racing, Bike Race, Bike Racing, Closed Course, Cycling, Defendant, Kansas, Kansas Supreme Court, Law, Legal release, Open Course, Oz Bicycle Club of Wichita, Release, Wichita Kansas Leave a commentRecords help prove even if your release is weak, the plaintiff really understood the risks.
Walton v. Oz Bicycle Club of Wichita, 1991 U.S. Dist. LEXIS 17655
Plaintiff: Eric Walton
Defendant: Oz Bicycle Club
Plaintiff Claims: negligence
Defendant Defenses: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton
Holding: for the defendant
In Walton v. Oz Bicycle Club of Wichita, the federal district court upheld a release used in a bicycle race. The race was held in Wichita Kansas, by the Oz Bicycle Club of Wichita. The plaintiff was rounding a corner in the lead on an open race course when he swerved to miss a car and crashed. An open bicycle race course means cars are on the roadway. An open course is not closed to traffic or pedestrians. A closed course, all cars have been prohibited on the course.
The defendant bicycle club filed a motion for summary judgment, which was granted by the court. The plaintiff when he signed up for the race was handed a release which he signed. The plaintiff had raced twenty to thirty times before and signed releases each time. He did not read this release but had read others and knew what he was signing. Prior to the start of the race the plaintiff had been informed that the course was not closed. The plaintiff encountered traffic on the race course at least twice prior to his crash.
The plaintiff was an employee of a bicycle manufacturing company which was also a sponsor of the race.
Summary of the case
The court first reviewed the issue of whether Assumption of Risk was a defense at this time in Kansas. The court concluded it probably not because the Kansas Supreme Court had not handed down a decision that was specific in stating assumption of risk was a defense in Kansas.
The court quoted the heading and four paragraphs of the release in its decision. The heading of the release read: “NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.”
The plaintiff argued that releases were not favored under Kansas law; however, the plaintiff never showed how the release at issue, was void under Kansas law.
The court in one paragraph summed up the requirements for the release to be valid under Kansas law:
Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.”
The court looked at the release and found it to be valid. The release lacked the word negligence; however, it spoke to “rights and claims” for “any and all damages” sustained by participating in the event. The court concentrated on the fact the plaintiff had signed more than 20 other releases, participated in more than 20 races and had crashed in at least two races. This is another situation where the facts and knowledge of the plaintiff helped seal the release in the mind of the court.
So Now What?
It was obvious that the defendant’s ability to show the court 20-30 other releases for bicycle racing signed by the plaintiff was instrumental in proving the arguments of the plaintiff did not matter. You need to hold on to releases, you never know when one many years old maybe valuable in proving your case.
That does not require that you hold onto each paper copy of a release. Electronic copies are equally valid. Invest in a scanner and take all of your old releases and scan them. You can organize them by date or race or activity. You do not need to identify each release at the time. You cans scan them in a way that they are searchable later, and if you ever need to find one, you can.
Also instrumental was the fact the plaintiff was informed at the beginning of the race that the course was open, going to have cars on the course. Add to that the defendant could prove the plaintiff had avoided cars on the course during the race and had raced on open courses in the past. I would suggest putting important information such as the course being open into the release, so you can prove you gave the rider the information. Having that information in the release, should not, however, remove the responsibility to tell the people about the open course also.
While working at a ski area, we threw in the weather report and an area map into all big accident files. We never knew if any accident would lead to a suit, however, why worry about it. Make sure the file has everything you need, every back reference or proof needed when you build the file so you don’t have to search for it. We had a lot of stored weather reports and ski area maps, but if one was needed in a lawsuit, they were easy to find.
We also included all of the skiing history we had on the injured guest. Any logs from his skiing that year, each time his pass had been scanned if the injured guest had a season pass. Prior season pass or skiing history if we had it. Proof that the injured guest knew how to ski and assumed the risk or proof that the injured guest had signed numerous releases.
That ability to find information, electronically or on paper, saved the day in this bicycle race case.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Oz Bicycle Club of Wichita, Cycling, Bicycle Racing, Open Course, Closed Course, Bike Race, Bike Racing, Release,
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Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)
Posted: September 23, 2013 Filed under: Cycling, Kansas, Racing, Release (pre-injury contract not to sue) | Tags: Bicycle Racing, Bike Race, Civil procedure, Closed Course, Open Course, Oz Bicycle Club of Wichita, United States, Wichita Leave a commentWalton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)
Eric Walton, Plaintiff, vs. Oz Bicycle Club Of Wichita, Defendant.
No. 90-1597-K
United States District Court For The District Of Kansas
1991 U.S. Dist. LEXIS 17655
November 21, 1991, Decided
November 22, 1991, Filed
COUNSEL: PLAINTIFF COUNSEL: David P. Calvert, Focht, Hughey, Hund & Calvert, 807 North Waco, Suite 300, Wichita, KS 67203
DEFENSE COUNSEL: Don D. Gribble, II, Donald N. Peterson, II, Kahrs, Nelson, Fanning, Hite & Kellogg, 200 West Douglas, Suite 630, Wichita, KS 67202
JUDGES: KELLY
OPINION BY: PATRICK F. KELLY
OPINION: Nearing the end of the sixth lap of the seven-lap bicycle race held in Hutchinson, Kansas on August 12, 1989, Eric Walton began to pull into the lead. Closely pursued by two other racers, Walton approached the intersection of Crazy Horse and Snokomo Streets. The course of the race required the racers traveling east on Crazy Horse to make a left turn at the intersection onto Snokomo.
MEMORANDUM AND ORDER
Leaning into the turn at about 30 miles per hour, Walton cut the northwest corner of the intersection about two feet from the curb. Flying past the corner, Walton was able to see for the first time the car stopped at the stop sign at the intersection and which had been hidden by the crowd of spectators lining Crazy Horse. Walton turned to the right to avoid the car. His bike went off the roadway, striking the open door of the van owned by the race’s referee, Gaylen Medders. As a result of this accident, Walton sustained injuries which have formed the basis for the present action.
The defendant, Oz Bicycle Club of Wichita, Kansas, has moved for summary judgment on the claims advanced by Walton. Oz presents three arguments in support of its motion: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton.
[HN1] Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). [HN2] In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). [HN3] The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff’s claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
[HN4] In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). [HN5] One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Walton was an employee of the Continental Cyclery Company in Hutchinson, Kansas, and participated in the race as a member of the Continental Cyclery team. An experienced racer, Walton had participated in 20 to 30 prior races, and had experienced two prior accidents while racing.
The August 12 race in Hutchinson was sponsored by Continental Cyclery, as well as a local pizzeria and mortuary. The race was conducted under the auspices of defendant Oz Bicycle Club of Wichita, which conducts periodic bicycle races as a part of its “Toto Racing Series.” For the August 12 race, local sponsors arranged for standby emergency medical and law enforcement services, planned the course of the race, and arranged for corner marshals along the route. Medders, the chairman of Oz, took participant applications, and served as the official and timer of the race.
Entrants in the race paid an $ 8.00 fee to Oz. In addition, entrants were required to sign a release. This release provides in part:
NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.
In consideration of the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractural [sic] representations and agreements.
I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitation, the following: the dangers of collision with pedestrians, vehicles, other racers, and fixed or moving objects; the dangers arising from surface hazards, equipment failure, inadequate safety equipment, and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter accrue to me against the sponsors of this event, the Oz Bicycle Club, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, special districts, and properties (and their respective agents, officials, and employees) through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.
Similar releases were contained in the registration forms for each of the 20 to 30 prior races in which Walton had participated. Walton was given an opportunity to read the release. Having read similar forms on prior occasions, Walton did not read this release. Walton was aware of what was in the release and understood its terms.
Walton’s participation in the race was not required. However, Walton voluntarily wished to enter the race and knew that signing the release was a requirement for participation. Walton recognized the dangers of participating in a bike race. Walton signed the release.
Prior to the start of the race, Medders had warned the participants that the course of the race was not closed to traffic, and during the course of the race Walton had encountered other cars on the course. However, as he cut the corner at the end of the sixth lap, Walton had not thought of the possibility of a car, hidden by the crowd, laying in his path on the other side of the intersection.
The status of the doctrine of assumption of risk is not clear under present Kansas law. In Shufelberger v. Worden, 189 Kan. 379, 385, 369 P.2d 382 (1962), the court indicated that the doctrine of assumption of risk was generally limited to situations involving an “employment relationship or [a] contractual relationship, express or implied.” By a process of slow osmosis, the Kansas Supreme Court has held most recently that the doctrine of assumption of risk is “limited to cases such as this where a master-servant relationship is involved.” Borth v. Borth, 221 Kan. 494, 499, 561 P.2d 408 (1977). To what extent this evolution, reflected in Smith v. Blakey, 213 Kan. 91, 101, 515 P.2d 1062 (1973); Ballhorst v. Hahner-Forman-Cale, Inc., 207 Kan. 89, 484 P.2d 38 (1971); Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36 (1959); George v. Beggs, 1 Kan.App.2d 356 Syl para. 1, 564 P.2d 593 (1977), is the result of an intentional, conscious modification of the law is uncertain. At no time have the state courts considered the impact of the adoption of comparative fault in relation to the continued validity of the doctrine of assumption of risk. But it is unnecessary to resolve the issue of assumption of risk here, since the court finds that the release signed by Walton is a valid exculpatory agreement which bars the present action.
In his brief in opposition to the motion for summary judgment, Walton presents several arguments in opposition to the application of the release agreement. Walton contends that the agreement reflects “overreaching” by the defendant, and cites the long list of persons protected by the agreement, including property owners in the area, law enforcement officers, and all public entities. This argument might be considered if the defendant were such a party, unconnected with either the race or the release agreement. Here, however, Oz is the bicycle club which helped to organize the race, took the applications of participants, and required the release agreements to be signed by those participants. In inserted, typed language, the agreement specifically lists “Oz Bicycle Club” as one of the parties protected by the release agreement.
Citing several Kansas cases, Walton contends that the law does not favor exculpatory agreements. This is certainly correct. But the cases cited by Walton merely establish that such agreements are disfavored and therefore are to be strictly construed. They do not establish that exculpatory agreements are inherently void as contrary to law. Mid-America Sprayers, Inc., v. United States Fire Ins. Co., 8 Kan.App.2d 451, 660 P.2d 1380 (1979).
It is correct, as Walton notes, that exculpatory agreements are void where they are contrary to established public interests. Hunter v. American Rentals, 189 Kan. 615, 371 P.2d 131 (1962); In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1 (1960). Yet, despite this suggestion, Walton does not attempt to explain how bicycle racing affects important and established public interests.
The position advanced by Walton has been expressly rejected elsewhere. [HN6] Voluntary sporting competitions are not matters of important public interest, as that term is used in considering which matters may not be the subject of exculpatory agreements. “There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation.” Okura v. United States Cycling Fed., 186 Cal.App.3d 1462, 231 Cal. Rptr. 429 (1986). See also Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654 (1991) (water skiing); Barnes v. Birmingham Intern. Raceway, Inc., 551 So.2d 929 (Ala. 1989) (automobile racing); Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1988) (downhill skiing); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704 (Wyo. 1987) (mock gunfight conducted by gun club); McAtee v. Newhall Land & Farming, 169 Cal.App.3d 1031, 216 Cal.Rptr. 465 (1985) (motorcross racing); Hulsey v. Elsinore Parachute Center, 168 Cal.App.3d 333, 214 Cal.Rptr. 194 (1985) (sky diving); Williams v. Cox Enternrises, Inc., 159 Ga.App. 333, 283 S.E.2d 367 (1981) (10,000 meter foot race). Even the fact that a participant considers the sport to be more than a “hobby” and hopes to someday participate at an Olympic level, will not raise the matter to a compelling public interest. Buchan v. U.S. Cycling Fed., 227 Cal. App.3d 134, 277 Cal. Rptr. 887 (1991).
Walton also argues that the danger herein — an automobile on the course of the race — was not a hazard normally associated with bicycle competitions, and cites the decision of the California Court of Appeals in Bennett v. United States Cycling Fed., 193 Cal.App.3d 1485, 239 Cal. Rptr. 55 (1987), in which the court found that an automobile’s presence on the course of the raceway was found to be a risk not normally associated with bicycle racing, and therefore not within the contemplation of an exculpatory agreement signed by the plaintiff. Unlike Bennett, where the bicycle race involved a “closed race” in which automobiles were not to be permitted on the raceway, the uncontradicted facts herein establish that the presence of automobiles on the course of the Toto race in Hutchinson was not unknown to the participants. Rather, the fact that the course was open to normal traffic was explicitly made known to the participants. Under the factual background of the case, there is no basis for the contention that the plaintiff could not or should not have anticipated the presence of automobiles on the raceway as a danger reflected in the release agreement.
[HN7] Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” Buchan, 227 Cal.App.3d at 147.
IT IS ACCORDINGLY ORDERED this 21 day of November, 1991, that the defendant’s motion for summary judgment (Dkt. No. 35) is hereby granted.
PATRICK F. KELLY, JUDGE
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Western Slope Environmental Education Summit
Posted: September 21, 2013 Filed under: Uncategorized | Tags: CAEE, Colorado, Environmental Education, Western Slope Leave a comment
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Study shows that cyclists would be safer if they wore body amour and helmets
Posted: September 20, 2013 Filed under: Cycling | Tags: Bicycling, Cycling, helmet Leave a commentStudy is wrong, cyclists would be safe if they never left the house BUT THAT IS NOT CYCLING, THAT IS CALLED SITTING!
It is no longer an activity when you are sitting on the side. I was part of a trial this year where the argument was the defendant was wrong because the plaintiff had been injured when the tube being pulled behind the boat tipped and through here in the water. The option is to sit on the beach and have people throw water on you.
How are you going to ride with body armor on? How can you experience the speed if you can’t pedal fast?
Why are we doing this research? More importantly was it really research? I suspect if you have everyone ride in a giant nerf suit they will be safer. If you have everyone go cycling in a more stable machine surrounded in metal you might be safer (a car).
However the study does recognize the value of helmets.
“Trauma to the head is still the number one injury in both cycling groups, which underscores the importance of wearing a good-quality, properly-fitted helmet,” said Dr. Chad Ball, the senior author of the research paper.
Good quality properly fitted…….had he seen bike helmets? Has he ever been outside? LOL
See Helmets aren’t enough, urban cyclists should don armour, says study
What do you think? Leave a comment.
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What is new at the cycling trade show from a “legal/risk management” perspective?
Posted: September 19, 2013 Filed under: Cycling, Mountain Biking | Tags: bicycle, bicycle insurance, bike insurance, Insurance Leave a commentOf course nothing dangerous, just a lot of insurance. Dangerous being a very subjective word
There are three companies on the tradeshow floor at Interbike that are selling insurance for your bike. Prices are based on the value of your bike and range from 10% to 50% of what you paid or are paying for you bike.
The difference is what is covered. The more you pay for the insurance the more you get covered if you have a loss. Some of the losses even include tacoing a wheel.
Prices of bikes have been climbing over the past decade and most road and mountain bikes are starting at $5,000 and many road bikes can be double that amount. (If you want to know what you bike is worth there is a new site for that too. See Bicycle Blue Book). So you do have an investment in your bike. However to have these insurance companies, that have been around for a while, now get out and in front of retailers is interesting.
I have not viewed any policies or brochures, but I find the entire issue to be quite interesting to say the least. Of course the issue is are you riding something you can’t replace no matter what and is what you are riding going to stay up in value long enough to justify the insurance.
What do you think? Leave a comment.
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Marketing is marketing and Risk Management is not marketing
Posted: September 18, 2013 Filed under: Uncategorized | Tags: ACA, Accreditation, AEE, Standard of Care, Standards Leave a commentEvery business wants to increase its presence in the community and its business. One way members of the outdoor recreation industry do this is through marketing programs called accreditation.
Accreditation is a process where your business or program has met the necessary requirements that the trade association has created. The accreditation process usually incorporates meeting requirements or in many cases, standards created by the association to gauge whether the business or program should be accredited. If the business or program meets accreditation, then they can advertise that fact to the general public.
Accreditation also has come to mean that once you have achieved a level or completed the requirements and advertised that fact to the general public, the public has the right to expect that level of accomplishment from at all times. That is where accreditation can be as dangerous as it may be beneficial.
In Lesser v. Camp Wildwood, 282 F. Supp. 2d 139; 2003 U.S. Dist. LEXIS 16170, a camper was injured when the wind blew a branch out of a tree injuring him. The decision is on a motion in liminae. A motion in liminae is a motion where the judge decides what evidence or witnesses will be allowed to testify or in the trial. The plaintiff argues in the motion that the plaintiff will prove the defendant failed to meet the standards of the American Camping Association (ACA). The defendant camp was an accredited member of the ACA.
The accreditation process required the defendant camp to have an emergency plan for severe storms. The plan called for the campers to move as a group to the dining hall. In this case, a storm came up during a firework works display while the campers were at the waterfront. When the campers were told to leave the area and go to their cabins the plaintiff went a different way placing him in a position to be struck by the branch causing his injuries.
The court in the published decision stated that because the defendant camp “repeatedly claimed that they have complied with ACA standards, and that ACA camps are safer, then” other non-ACA camps. It was important for the plaintiff’s expert to prove that the camp had not followed the ACA standards.
The reason why this case is disturbing is because it set a level of care that was much higher than required under New York law. The defendant camp was located in New York, which is also where the suit was filed. Under New York law, the standard of care for camps was:
“schools, camps or similar institutions have a duty to exercise the same degree of care as would a reasonably prudent parent under similar circumstances.”
“…camps, like schools, “are not insurers of safety . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students.”
“Organizers of recreational events “owe a duty to exercise only reasonable care to protect participants ‘from injuries arising out of unassumed, concealed or unreasonably increased risks”
“…constant supervision is neither feasible nor desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy”).”
Because the camp was accredited and held itself out to a higher standard, the court was going to allow testimony that the camp had failed to meet that standard of care that it advertised it met. The camp through its marketing program raised the standard it must meet in court from reasonable supervision and control to constant supervision and control. But for accreditation, the camp would not have been in the position in the lawsuit it found itself.
The definition of accreditation by the Council on Accreditation (COA) is a formal evaluation of an organization against accepted criteria or standards. (http://www.coastandards.org/glossary.php) The COA does not define “standard.” Even if the COA did define standard or if the standards written by the trade association defined the term “standard,” the definition will probably not matter in a court.
The standard of care is the level of acting or not acting that determines if a duty was breached to an injured person. If the duty existed, if the duty was then breached, if there were an injury and damages, a direct result of the breach of duty, then negligence has been proven. Violating a standard of care is then the first step the plaintiff must prove to recover damages from the defendant.
The vast majorities of the lawsuits for injuries are torts, which require the proof of negligence. If the defendants through their marketing program help the plaintiffs prove their cases in lawsuits against them is the marketing program of real value in the long run.
Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.”[1] A reasonable person is not an expert or a committee. It is one person in that situation at that time. That allows the defendant to argue and the jury to understand that no one is perfect and that what may be required in that situation is not the same as you would expect if the world was perfect.
Standards that lead to accreditation create unreasonable expectations that cannot be met or exceed what is legally required on the part of defendants. Lesser is a perfect example of that issue.
How does the jury determine the industry standard? It is presented to the jury by both sides of the litigation. Both the plaintiff and the defendant have the opportunity to argue the appropriate level of care or standard for the situation. This is normally accomplished through expert witnesses. Expert witnesses are people who study or work in the industry that can testify to the standard of care. Although this may seem archaic or costly, it gives the defendant a fighting chance. There is the opportunity to prove that the defendant did not act below the standard of care. It is then up to the jury to apply the facts, decide on the standard and determine if the defendant injured the plaintiff.
In Kearns v. Upper Columbia Conference of Seventh-Day Adventists, CV OC 0500538 4th District, Idaho, the plaintiff hired an expert witness who was an ACA Accreditation Visitor. An ACA Accreditation Visitor is hired by the camp to come to the camp and review the camp to see if the camp qualifies for accreditation. The visitor’s expert witness report listed numerous standards created by the ACA that the defendant camp had violated. The standards the defendant camp allegedly violated in several cases had nothing to do with the claims of the plaintiff. Yet the ACA standards were used to prove the defendant camp had acted in a way that was below the standard of care for a camp.[2]
In Kearns, a person trained by the trade association in its standards, and accreditation process was hired to help defeat a member of the trade association. That was done using the standards created by the association to show the defendant camp was negligent.
Accreditation is not bad if it is understood and used the way it was envisioned: to show that educational institutions have met the minimum requirements to be a good college or university. Accreditation for colleges and universities looks at the facilities, the professors and their degrees and the ratio of professors to students. It evaluates whether or not the college will do a good job of educating students. The accreditation process is not created in a way that a college or university can be held liable to a student if the student is injured on camps. Accreditation done properly does not create a standard of care that a person will be held to in a lawsuit.
In July 1998, Adam Dzialo was permanently injured when he suffered a near drowning in the Deerfield River. He was part of a program fun by the Greenfield Community College. The college had recently undergone an accreditation review by the Association of Environmental Education (AEE). One of the issues the review highlighted was the college did not employ enough instructors in its paddlesports programs. This lack of instructors was a major issue in the lawsuit by the plaintiff to argue the college had not met the standard of care to the plaintiff. The suit settled eventually, but not before litigation was dismissed in state court and filed in federal court and the resulting several years of fees, costs and emotion.
To achieve accreditation, the trade associations have written standards that must be met by the program or business. Standards are the lowest allowable level of acting or not acting that a jury will allow a defendant to do or not do. That means if you act below the standard you have breached a duty of care, if you act above a standard, you have not breached a duty of care. Standards are difficult to write because that level of care changes over time, by location, and by the plaintiff. Standards then are written broadly but interpreted narrowly by the courts.
Standards are also written for all circumstances. Nothing is ever the same, even on paper. The standard of care owed by a program to a five-year-old is different from the standard of care owed to a sixteen-year-old. The standard of care owed when taking someone down a class, I river is different than the standard of care of taking someone down a Class IV river. However, we all know that river ratings are very subjective.
Think about any outdoor recreation trip or program you have participated in. Has it ever gone exactly as planned? Has everyone shown up exactly on time, arrived at the start when planned and carried all the right gear, and not too much gear? Has the weather always been what was forecasted and never been a problem Have all the participants had a great time, no bad days and no injuries. When you can consistently run your trips exactly as planned then you can apply standards to your trips because you know exactly how things are going to work. Nothing will go wrong that may lower the way the trip is run below the standard of care.
Additionally, the standards created by associations for its members tend to be goals rather than the minimum acceptable level of care. Consider the issues when a defendant is held to a goal as the minimal acceptable level of care in a court. There is no way that any defendant can meet a goal, when sometimes they cannot meet the minimal level of care.
Standards also change. Look at the progression of alpine skis over the past ten years. At one time, a ski 215 centimeters long and slightly wider than your foot was the standard found in most ski shops. Today the longest ski that can be found is 196 centimeters, and some look like water skis rather than skis to be used on snow. Skis used to arc with only the tips and tails touching when the basis of the skis are put together. Now the only part so the skis that touch is the area under the binding and the tips separate by inches. If the ski industry wrote standards for how ski areas are to operate, how fast could they react and update standards for skis that change yearly.
And what if the standard is wrong? Will the trade association show up in court and say they made a mistake the standard is incorrect. A standard that is wrong is still a standard. The plaintiff will argue it is correct, and the defendant will be forced to defend against a standard that they could not meet and is incorrect to begin with.
Research on standards means nothing in court. It does not matter if the standards are written with the best intention, and they are or with the best goals for the members of the association. Courtrooms are not places to test ideas or raise expectations of potential guests. Courtrooms are where decisions about the future of your business or program are made. You do not want some third party group of people, five years in the past, making that decision for you.
Standards don’t allow for experimentation or growth. If the standard does not allow you to try something new or exceeds the standard you are stuck in the past. Many standards soon become the Twilight Zone of an industry because they lag behind the new and better.
Why is accreditation being promoted in an industry? Money. Trade associations are paid a substantial amount of money so that their membership can post their seal of approval in their marketing. This income is a substantial part of the budget, and they will be hard-pressed to replace it. A trade association, that has created standards, is than caught in a financial bind. They must support their standards to maintain their current financial situation.
Litigation is emotional draining, very costly and takes years; and that is if you win. Society seems to be heading towards a situation where any injury should be the responsibility of someone else. If you make that easy for someone to sue you or to win the lawsuit, you have lost the battle before you have opened your doors for business.
Standards are written with no intention of being found in courts of law. However, this brief article points to three cases where the standards created by a trade association are used in court against the people the standards were created to help. It does not matter how much research can be found to support the creation of standards when they become the noose around a trade association member’s neck.
If the defendant is faced with a written standard, the plaintiff says they are violating, the expert witness of the defendant has two issues to prove or maybe the defendant must hire more experts. The first is the standards written by the association are not the standard in the industry. The second then is the standard is different.
Proving the trade association did not write standards is difficult. In most cases, it simply becomes an attack on the association showing it is not everything the association says it is. That the association does not represent the majority of people or business in its industry or that the majority of the membership is not accredited. This is an ugly fight.
Marketing is needed by everyone. On top of that we want our business or program to show we are more than good, that we are the best.
It does not matter how great the benefits of accreditation are, if the program is used to prove you negligent in a court of law. Accreditation may bring you more business; however, the cost of that additional business may not be enough to cover the lost time involved in litigation and increased cost of your insurance. Let alone the time and expense you put into meeting the accreditation.
Marketing makes Promises that Risk Management must pay for.
What do you think? Leave a comment.
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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, EMS, Emergency Medical Systems, ACA, AEE, Standards, Accreditation, Standard of Care,
[1] CJI-Civ. 9:9 (CLE Ed. 2009)
[2] ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp, www.recreation-law.com
New Ski Graphics Contest and Time to Get Stoked for Winter Video
Posted: September 17, 2013 Filed under: Skiing / Snow Boarding | Tags: backcountry, G3, skiing, snowboarding Leave a comment
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Excellent opinion explaining product liability issues under Minnesota law
Posted: September 16, 2013 Filed under: Cycling, Minnesota | Tags: bicycle, Consumer Goods and Services, Cycling, Design Failure, Duty to Warn, Failure to Warn, Feasible Alternative Design, Post-Sale Duty to Warn, Product liability, Quick Release, Quick release skewer, Skewer, Sporting Goods, Trek, Trek Bicycle Corporation, University of Minnesota, Unreasonable Dangerous 2 CommentsHowever this bicycle product liability case is not over.
Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559
Plaintiff: John Sanny and Diana Sanny
Defendant: Trek Bicycle Corporation
Plaintiff Claims: design defect, failure to warn, and failure to provide post-sale warnings
Defendant Defenses:
Holding: Mixed ruling
This is not a final decision in this case; in fact, I suspect this case is still proceeding to trial. This opinion is one from a motion’s hearing decided May 8, 2013 to prepare for trial. I am always hesitant to write about a case when it is still ongoing; however, the case has great information on how courts look at issues in product liability claims.
The plaintiff taught tennis and other classes at the University of Minnesota. He would drive to work, park, then take his bike out of his car and ride the rest of the way to work. To put his bike in his car, he had to remove the front wheel of his bike, which used a quick release. A quick release is a skewer that goes through the wheel axle and using a lever action tightens the wheel to the front fork. The court does an excellent job of explaining how this works showing a real understanding of the facts of the case.
A quick release mechanism, like the one used in Sanny’s bicycle, involves three major components: a bicycle fork designed for quick release use, a front wheel designed for the same, and the quick release device itself. In a bicycle equipped for a quick release tire, the front “fork blades”–the arms of the bicycle which hold the wheel–each end in an open, u-shaped “dropout.” The front wheel has a hollow axle, meaning the axle has a narrow, cylindrical hollow space running its length. The quick release device is a skewer that has an adjustable nut on one end and a lever on the other.
To connect the wheel to the bicycle, the quick release skewer is placed through the hollow of the front wheel’s axle, so that it protrudes on either end by a small amount. The wheel is then placed between the fork blades, so that the dropouts fit on to the skewer, on either side of the wheel axle. To secure the wheel to the bicycle, the rider tightens the nut on one end of the quick release device and presses the lever inward 90 degrees (relative to the skewer) on the other [*5] end. The lever, acting as a cam, tightens the skewer so that the quick release device is pushing in on each dropout from the outside. This pressure ensures the wheel does not detach during riding; the wheel is essentially “pinched” in place.
One day while riding to work, the plaintiff realized he had forgotten his keys in his car and went back to get them. Getting close to a curb he popped or “bunny hopped” the front of his bike over the curb. The wheel came off and caught in the front brake stopping the bike and throwing the plaintiff into the sidewalk. He sustained injuries from the fall which generated the lawsuit.
The plaintiff sued the defendant bike manufacturer because the bike maker:
…negligently failed to incorporate a “secondary retention system” into the design of Sanny’s [plaintiff] bicycle, which would have acted as a safety mechanism when Sanny’s wheel detached. Plaintiffs also allege Trek failed to warn Sanny of the risk of front wheel detachment in bicycles without secondary retention devices. Finally, Plaintiffs argue they have stated a third claim alleging Trek’s post-sale failure to warn Sanny.
The defendant filed several motions (Motion for Summary Judgment, Motion to Exclude Testimony of Plaintiffs’ Expert Witness David Hallman, and Motion to Strike Changes to Deposition of Plaintiffs’ Expert David Hallman) which resulted in this opinion.
Summary of the case
Design Defect
The court first looked at the Design Defect claims of the plaintiff. Under Minnesota law to prove a design defect claim the plaintiff must prove three elements:
(1) the product was in a defective condition, unreasonably dangerous for its intended use; (2) the defect existed when the product left the manufacturer’s control; and (3) the defect proximately caused the plaintiff’s injury.
The three-part test is fairly common among the states. The test to determine if the three steps have been met is a balancing test. A product is defective if the manufacturer:
…fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.
What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.
Because “reasonable minds” could differ, or there were good arguments on both sides, the issue had to go before a jury. A judge is usually limited when the evidence only favors one side or the other or the evidence is so weak it cannot prove a point. Consequently, any question about evidence the court finds credible must go before a jury.
In this case, there were arguments on both sides that the design was or was not defective.
A sub-argument of Design Defect is whether there was a Feasible Alternative Design. This means whether or not there was a feasible, safer alternative to the design at question. If there was a feasible alternative design that the manufacturer did not use, the design defect claim is successful for the plaintiff.
If, at the time the manufacturer designed the product at issue, a safer, feasible design existed, it weighs in favor of finding the contested design unreasonably dangerous. Implicit in this evaluation, however, is the balance between utility and safety. If the alternative design increases safety at the cost of performance or utility, it may warrant the conclusion that the alternative design is not feasible.
In this case, several alternative designs exist, which incorporate secondary retention devices. The issue argued by the defendant was whether any of the designs actually increased bicycle safety. The defendant and the plaintiff then argued that the accident statistics the Defendant had shown a likelihood, of the necessity of a new design or a separate retention system.
… a manufacturer’s notice of other accidents addresses whether a manufacturer exercised sufficient care to eliminate any unreasonable risk of harm from foreseeable uses of its product at the time of design.
Here again, good arguments on each side of the issue means this issue will go before the jury.
Failure to Warn
The failure to warn argument boiled down to this. “Plaintiffs allege Trek failed to properly warn Sanny about the danger of riding a quick-release bicycle not equipped with a secondary retention device.” Under Minnesota law to prove a failure to warn claim, the plaintiff must prove:
(1) the defendant had reason to know of the dangers of using the product; (2) the warnings fell short of those reasonably required, breaching the duty of care; and (3) the lack of an adequate warning caused plaintiff’s injuries.
The plaintiff must prove, under causation, that the warning would have caused him (or her) to “act in a way that would have avoided the injury.” A product warning only needs to warn about the inherent dangers and the proper use of the product. There is no requirement to warn of other design possibilities.
The defendant won this argument because the plaintiff could not prove the causation issue. The plaintiff had been using quick-release hubs for 30 years by the time the accident occurred and had owned and used this bike for 16 years. On this bike, he used the quick release every 2-4 weeks and knew he would crash if he did not attach the wheel properly. Consequently, the court could not find that more information would have caused the plaintiff to act differently.
Failure to warn claim is one that most manufacturers are concerned about because they understand it the most. You must warn your customers of all hazards of your product. You must also warn them of using the product improperly. The problem with this is the improper use of the product does not appear to the manufacturer until after the product is in the market place for a long period of time. Improper use of the product also must be evaluated with any other product the manufacture’s product is used with. An example of this is if consumers are using an ascender improperly this may not make any difference to the ascender. It may continue to work perfectly. However, the ascender manufacturer would be liable if the manufacturer knew consumers were using the ascender improperly in a way that damaged the rope the ascender was attached to, causing the injury.
Post-Sale Failure to Warn
This claim is one of rising argument and interest. The issue is the plaintiff argues that the defendant had a duty after the purchase of the product to warn against the risk or dangers of a product that the manufacturer learned about post-sale. Meaning after the product has been sold and the risk is identified, there is a legal burden on the manufacturer to notify all owners of the potential for injury. This is not the same as a recall because a part can fail, this based on the plaintiff using the product incorrectly.
Explained differently, a recall is based on the fact the part fails and is going to be or must be fixed. The post-sale duty to warn does not mean the product is defective or has a failure of any part. The issue is the manufacturer learning about ways the product can fail or be used incorrectly.
The court looked at an automobile tire product liability case and found the following factors that contribute to a manufacturer’s post sale duty to warn include:
(1) the defendant’s knowledge of problems with the product since the late 1950s, including the knowledge that the product might explode with little provocation; (2) the hidden nature of the danger; (3) the fact that when explosions did occur, serious injury or death usually resulted; (4) defendant remained in that line of business, continued to sell parts for use with the product and had advertised the product within five years of the plaintiff’s injury; and (5) defendant had undertaken a duty to warn of product dangers.
The court seems to argue that the post-sale duty to warn arises when the manufacture creates or accepts a post-sale duty to warn.
“Several decisions have indicated that “continued service, communication with purchasers, or the assumption of the duty to update purchasers, is a necessary element” for a post-sale duty to warn.”
At this time, you can avoid the issue of post-sale duty to warn by informing your customers that you have no liability for informing them of any risks. You are not accepting a new duty. However, that is not how this new area of the law appears to be heading. Whether or not you have accepted the duty to warn consumer’s post-sale is not indicated in all courts.
However, in this case, the plaintiff did not properly plead a post-sale duty to warn in his complaint nor could they prove that the defendant undertook the duty to warn consumers.
In addition, Plaintiffs have not demonstrated whether Trek undertook a duty to warn consumers, or whether Trek engaged customers in ongoing relationships in a way that would give rise to a post-sale duty to warn.
Nor did the plaintiff prove quick-release devices issues usually lead to an injury.
The court also looked at arguments raised by the defendant in regard to the plaintiff’s expert opinion which is procedural and evidentiary in nature, so I’m not going to review them here.
So Now What?
This case is not over, so any “opinion” about it is very premature. However, the opinion is well-written and very educational and for that purpose, I believe it should be brought to your attention no matter who wins or how.
Besides a great explanation of Minnesota Product Liability law, you need to be aware of the following:
Common Critical Manufacture’s Error in Product Liability Cases
Many manufacturers believe that if the error leading to the accident was solely the responsibility of the user, then the manufacturer has no liability. That is not true. Remember, knowledge or foreseeability is important in any negligence or product liability action. If the manufacturer knew that quick releases could be put on improperly leading to injury, then the manufacturer could be liable.
In fact, this issue, of consumer error, is used to prove the plaintiff’s claims because it is an injury that was foreseeable. “Whether the wheel detached due to user error is immaterial, as Trek concedes user error of the quick-release device is a foreseeable cause of injury.”
Post-Sale Duty to Warn
Post-sale duty to warn is the upcoming issue. If you collect information from the consumer for any purpose, you need to (1.) Disclaim any post-sale duty to warn and/or (2.) place that duty on the consumer. If you are collecting information for marketing, the clearly identify that information as such.
At the same time, evaluate the opportunities that can be presented if you continue to communicate with your consumers. Marketing makes promises that risk management must pay for; however, proper marketing can continue to educate the consumer and keep them coming back to your website to learn of any warnings.
There may be a safer way to do something.
If you hear of a manufacturer, inventor or anyone who may have a safer way for the consumer to use your product you need to check it out. You must balance the cost of the new way of using/designing/manufacturing and/or the utility of the product against the effectiveness of what you are doing/designing/manufacturing/using now. You have to see if the injuries are real and if the new idea will prevent or lessen injures.
In this case, you have to lead the industry; you cannot follow.
If you are a manufacturer, you need to consult with an attorney who is an expert in product liability issues to make sure you are not creating product liability claims.
What do you think? Leave a comment.
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Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559
Posted: September 16, 2013 Filed under: Cycling, Legal Case, Minnesota | Tags: bicycle, Consumer Goods and Services, Cycling, Design Failure, Duty to Warn, Failure to Warn, Feasible Alternative Design, Minneapolis, Post-Sale Duty to Warn, Product liability, Quick Release, Skewer, Sporting Goods, Trek, Trek Bicycle Corporation, Unreasonable Dangerous Leave a commentSanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559
John Sanny and Diana Sanny, Plaintiffs, v. Trek Bicycle Corporation, Defendant.
Civil No. 11-2936 ADM/SER
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
2013 U.S. Dist. LEXIS 65559
May 8, 2013, Decided
May 8, 2013, Filed
CORE TERMS: bicycle, retention, wheel, secondary, deposition, unreasonably dangerous, sheet, manufacturer, errata, post-sale, front wheel, detachment, summary judgment, question of fact, duty to warn, equipped, warning, failure to warn, notice, skewer, design defect, alternative design, engineering, corrections, feasible, deponent, warn, fork, dropout, tip
COUNSEL: [*1] Terry L. Wade, Esq., Vincent J. Moccio, Esq., and Brandon E. Vaughn, Esq., Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, on behalf of Plaintiffs.
Stephen J. Foley, Esq., Michael W. Haag, Esq., and Steven J. Erffmeyer, Esq., Foley & Mansfield, PLLP, Minneapolis, MN, on behalf of Defendant.
JUDGES: ANN D. MONTGOMERY, U.S. DISTRICT JUDGE.
OPINION BY: ANN D. MONTGOMERY
OPINION
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiffs John and Diana Sanny assert claims of design defect, failure to warn, and failure to provide post-sale warnings against Defendant Trek Bicycle Corporation’s (“Trek”). 1 On March 22, 2013, the undersigned United States District Judge heard oral argument on Trek’s Motion for Summary Judgment [Docket No. 77], Motion to Exclude Testimony of Plaintiffs’ Expert Witness David Hallman [Docket No. 76] (“Motion to Exclude”), and Motion to Strike Changes to Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] (“Motion to Strike”). For the reasons stated herein, Trek’s Motion for Summary Judgment is granted in part, its Motion to Strike is granted, and its Motion to Exclude is granted in part.
1 Plaintiffs withdrew their claims for negligent failure to recall and negligent failure to advise [*2] the Consumer Product Safety Commission of a product hazard, conceding Minnesota law does not recognize these claims. Pls.’ Mem. Opp. Summ. J. [Docket No. 95] (“Pls.’ Opp.”) 48-49.
II. BACKGROUND
A. Sanny’s Accident
At the time of his accident in 2009, John Sanny (“Sanny”) taught tennis and other classes at the University of Minnesota’s Minneapolis campus. Vaughn Aff. [Docket No. 96] Ex. UU (“Sanny Dep.”), at 18, 33-34. In 1993, Sanny purchased a used Model 930 Single Track bicycle, manufactured by Trek in 1990. The bicycle had a quick release mechanism, which allowed Sanny to quickly remove and replace the front wheel. About every 2-4 weeks, Sanny commuted to Cooke Hall, where he had an office, by driving to campus, parking in a nearby surface lot, and then riding his bicycle the remainder of the trip. Id. at 14-15. To fit his bicycle inside his car, Sanny routinely removed the bicycle’s front wheel. Id.
On September 10, 2009, Sanny arrived at the campus parking lot in the morning, about one hour before his class. Id. at 30. Sanny removed his bicycle from his car and attached the front wheel. Id. at 15-18. He then rode his bicycle about two-and-a-half blocks to Cooke Hall and entered the [*3] building before realizing he had left his keys in his car. Id. at 21, 30-31. Sanny returned to his bicycle and headed back to the parking lot to retrieve his keys. Id. at 30-31. As he approached the parking lot, he “bunny-hopped” a curb to cross the street. Id. at 24-25, 31; Haag Aff. [Docket No. 85] Ex. 2 (Map of accident site). The front wheel of his bicycle came loose and caught on the front brakes, causing the bicycle to come to a sudden stop. Vaughn Aff. Ex. VV (“Hallman Report”), at 2. Sanny was thrown face-forward off of his bicycle. See id. The first campus police officer to respond found Sanny on the pavement, bleeding and suffering from serious head and facial injuries. Vaughn Aff. Ex. A (“Welsh Dep.”), at 45-46.
On or about September 19, 2011, Plaintiffs filed suit against Trek. Plaintiffs allege Trek negligently failed to incorporate a “secondary retention system” into the design of Sanny’s bicycle, which would have acted as a safety mechanism when Sanny’s wheel detached. Compl. 2. Plaintiffs also allege Trek failed to warn Sanny of the risk of front wheel detachment in bicycles without secondary retention devices. Id. Finally, Plaintiffs argue they have stated a third claim [*4] alleging Trek’s post-sale failure to warn Sanny. Trek argues Plaintiffs did not sufficiently plead this claim.
B. Quick Release Device
A quick release mechanism, like the one used in Sanny’s bicycle, involves three major components: a bicycle fork designed for quick release use, a front wheel designed for the same, and the quick release device itself. In a bicycle equipped for a quick release tire, the front “fork blades”–the arms of the bicycle which hold the wheel–each end in an open, u-shaped “dropout.” The front wheel has a hollow axle, meaning the axle has a narrow, cylindrical hollow space running its length. The quick release device is a skewer that has an adjustable nut on one end and a lever on the other.
To connect the wheel to the bicycle, the quick release skewer is placed through the hollow of the front wheel’s axle, so that it protrudes on either end by a small amount. The wheel is then placed between the fork blades, so that the dropouts fit on to the skewer, on either side of the wheel axle. To secure the wheel to the bicycle, the rider tightens the nut on one end of the quick release device and presses the lever inward 90 degrees (relative to the skewer) on the other [*5] end. The lever, acting as a cam, tightens the skewer so that the quick release device is pushing in on each dropout from the outside. This pressure ensures the wheel does not detach during riding; the wheel is essentially “pinched” in place.
The alleged danger with quick release wheels is the risk that the quick release nut and/or lever become loose or completely undone during a ride. Because friction is the primary force keeping the wheel attached to the bicycle, a loss of “grip” by the quick release device means the dropouts are simply resting on top of the quick release skewer. If the rider of the bicycle in this situation lifts the front of his bicycle off of the ground, makes a sharp turn, or takes a similar action, the rider risks lifting the dropouts off of the axle and detaching the front wheel in mid-ride. In the present case, Plaintiffs and Trek agree that Sanny’s action in “hopping” over a curb to cross the street caused the front fork of his bicycle to lift off of and thus detach from his front wheel.
III. DISCUSSION
A. Motion for Summary Judgment
1. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure states a court shall grant summary judgment if no [*6] genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). If evidence sufficient to permit a reasonable jury to return a verdict in favor of the nonmoving party has been presented, summary judgment is inappropriate. Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995) (citations omitted). However, “the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, ‘the dispute must be outcome determinative under prevailing law.'” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citations omitted).
2. Design Defect
To establish a design defect claim under Minnesota law, a plaintiff must present specific facts establishing three elements: (1) the product was in a defective condition, unreasonably dangerous for its intended use; (2) the defect existed when the product left the manufacturer’s control; and (3) the defect proximately caused the plaintiff’s injury. Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn. Ct. App. 1991) [*7] (citing Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 624 (Minn. 1984)). Whether a product is defective is usually a question of fact; “only when reasonable minds cannot differ does the question become one of law.” Thompson v. Hirano Tecseed Co., Ltd., 456 F.3d 805, 809 (8th Cir. 2006).
For both negligence and strict liability claims, Minnesota courts use a “reasonable care” balancing test to determine whether a product is defective. Thompson, 456 F.3d at 809. Under this balancing test, a product is unreasonably dangerous, and thus defective, if the manufacturer:
fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.
What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.
Mozes v. Medtronic, Inc., 14 F. Supp. 2d 1124, 1127 (D. Minn. 1998) (citing Bilotta, 346 N.W.2d at 621).
The [*8] parties dispute whether Sanny’s bicycle was unreasonably dangerous because it had no secondary retention device. Viewed as a whole, the evidence submitted by the parties would allow reasonable minds to disagree regarding whether Trek used reasonable care in choosing not to include a secondary retention device in the design of Sanny’s bicycle. Each category of evidence presented by the parties is discussed below.
a. Feasible alterative design
While not a prima facie element of a design defect claim, an important factor in determining whether a product is unreasonably dangerous is the availability of a feasible, safer alternative design. Kallio v. Ford Motor Co., 407 N.W.2d 92, 96-97 (Minn. 1987); Young v. Pollock Eng’g Group, Inc., 428 F.3d 786, 789 (8th Cir. 2005). If, at the time the manufacturer designed the product at issue, a safer, feasible design existed, it weighs in favor of finding the contested design unreasonably dangerous. Implicit in this evaluation, however, is the balance between utility and safety. If the alternative design increases safety at the cost of performance or utility, it may warrant the conclusion that the alternative design is not feasible. See, e.g., Unrein v. Timesavers, Inc., 394 F.3d 1008, 1012 (8th Cir. 2005) [*9] (holding expert must demonstrate proposed safety modifications do not “interfere with the machine’s utility”); Sobolik v. Briggs & Stratton Power Prods. Group, LLC, No. 09-1785, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *4-5 (D. Minn. Mar. 30, 2011) (finding plaintiff had submitted sufficient evidence to create question of fact on issue of safety, despite defendants’ arguments that proposed design would harm utility).
Here, the parties agree several feasible, alternative designs exist which incorporate secondary retention devices. In bicycle design terms, “secondary retention device,” or “positive retention device,” refers to any kind of mechanism that acts as a failsafe in the event a quick release wheel loosens or detaches from a bicycle’s dropouts. One of the most common secondary retention devices found in bicycles are “tabbed tips” or “tab tips.” Normally, the dropouts to which the quick release skewer attaches are completely smooth. On a bicycle with tab tips, the dropouts are not flat but have extended, outward-curving edges. With this design, if a quick release nut and handle are not fully tightened, they may still “sit” in these tab tips and keep the wheel in place even if the front of the bicycle [*10] lifts off of the ground. In other words, tab tips act as a kind of safety railing to hold a quick release wheel that is no longer firmly attached. Another type of secondary retention device is the “peg and eyelet” device, which essentially adds two washers to either side of the quick release skewer; the washers are then attached to the bicycle fork blades using pegs or hooks that connect to holes punched into the washers.
Although Trek agrees that several feasible alternative designs exist, it disputes whether any of these designs–namely, whether any secondary retention device–actually increases bicycle safety. As discussed below, whether a secondary retention device would have increased the safety of Sanny’s bicycle is a key question of fact that a jury must resolve.
b. Trek’s record of wheel separation claims
Until his death in 1995, Robert Read served as Trek’s Director of Engineering and as the primary person tracking and evaluating the safety of Trek’s quick release bicycles. Read investigated all wheel separation claims from 1985 until 1995, and kept a record of reported claims. Haag Aff. Ex. O. In 1990, Read made the decision that Trek would incorporate secondary retention devices [*11] in all of its quick release bicycles, and Trek initially used both peg and eyelet, and tab tip designs. Id.; see also Vaughn Aff. Ex. P., at 4. By 1991, every new Trek bicycle had a secondary retention device of some kind. Vaughn Aff. Ex. P., at 4. Sanny’s bicycle, manufactured in 1990, was among the last of the bicycles manufactured by Trek without a secondary retention device.
Plaintiffs argue that Trek’s own use of tab tips, and peg and eyelet devices demonstrate the safety benefit that results from secondary retention devices. Since 1985, Trek has recorded 58 claims of wheel separation. See Vaughn Aff. Ex. X (Trek’s wheel separation claims list). A simple review of these claims indicate that the majority of wheel separations were reported from 1985 until the early 1990’s, after which the number of incidents reported per year began to decrease. See id. Plaintiffs argue that the year-over-year decrease in wheel separation incidents was the result of Trek’s decision to incorporate secondary retention devices in its bicycles starting in 1990. The correlation between decreased incident reports and use of secondary retention devices, according to Plaintiffs, is evidence that the feasible [*12] alternative designs increase the safety of Trek bicycles.
Trek disputes the necessity of secondary retention devices. Trek argues that although it has received claims of wheel separation in quick release bicycles, the number of reported incidents is extremely low compared to the total number of Trek bicycles sold. In particular, Trek argues that it was only aware of nine instances of wheel separation by 1990. See Haag Aff. Ex. Y (“Read Dep.”), at 152-53. 2 By that time, Trek had sold over a million bicycles, resulting in a wheel separation rate of about 0.0009%. See id. at 80. Trek also argues that four of these nine recorded incidents involved bicycles equipped with peg and eyelet style retention devices. As a result, Trek, through Read, decided bicycles without secondary retention devices had substantially the same level of safety as bicycles equipped with secondary retention devices. Id. at 82-84. Trek claims that it nevertheless adopted secondary retention devices to avoid litigation.
2 Although Read testified that Trek was only aware of nine claims of wheel separation by January 1990, Trek’s documents reflect 11 claims. Vaughn Aff. Ex. X. The reason for the discrepancy is unclear.
Trek [*13] also disputes Plaintiffs’ interpretation of the larger number of wheel separation claims. At oral argument, Trek stated that of the 58 total claims of wheel separation it recorded, about 32 of the bicycles involved had secondary retention devices, further demonstrating these devices’ failure to increase safety. By way of explanation, Trek notes that secondary retention devices are cumbersome, and increase the risk of user error in properly securing a quick release wheel. Trek argues that the decrease in wheel separation claims in the 1990’s did not result from any design change; on the contrary, Trek argues the decrease resulted from Trek’s campaign to educate riders on the proper use of quick release devices. Plaintiffs respond that although some wheel detachments may have occurred in bicycles designed to hold secondary retention devices, many of the 32 bicycles in question were not actually equipped with such devices at the time of the accidents. Plaintiffs also complain that Trek destroyed most of its files associated with older wheel separation claims, preventing Plaintiffs from further investigating the particular circumstances of each claim. See Pls.’ Opp. 37.
As an initial matter, [*14] it is necessary to address whether evidence of other wheel separation claims will be admissible at trial, as only facts based on admissible evidence may be considered at the summary judgment stage. See JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734, 737 (8th Cir. 1995). In the area of product liability litigation, evidence of similar injuries or incidents “may be relevant to prove a product’s lack of safety or a party’s notice of defects.” J.B. Hunt Transport, Inc. v. Gen. Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001). Similar incident evidence also risks raising “extraneous controversial issues,” confusing the issues, and being more prejudicial than probative. Id. (citation omitted). As a result, the offering party has the burden of demonstrating that the past incidents are substantially similar to the incident at issue. Id. at 445. Ultimately, the admission of such evidence is in the trial court’s discretion. Arabian Agric. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479, 485 (8th Cir. 2002); Hammes v. Yamaha Motor Corp. U.S.A., Inc., No. 03-6456, 2006 U.S. Dist. LEXIS 26526, 2006 WL 1195907, at *12, n.2 (D. Minn. May 4, 2006).
Here, Trek’s prior wheel separation incidents bear relevant similarities to Sanny’s accident. [*15] Every prior incident involved a bicycle with a quick release device, and it is logical to assume the bicycle wheel detached during foreseeable use. See, e.g., Schaffner v. Chicago & N.W. Transp. Co., 129 Ill. 2d 1, 541 N.E.2d 643, 660, 133 Ill. Dec. 432 (Ill. 1989) (reaching same conclusion in similar circumstances). Whether the wheel detached due to user error is immaterial, as Trek concedes user error of the quick release device is a foreseeable cause of injury. Def.’s Mem. Supp. Summ. J. [Docket No. 81] (“Def.’s Mem.”) 15. In this case, the parties agree that wheel separation incidents may be grouped together to demonstrate comparative safety and overall incident trends. See, e.g., id. at 14. In addition, the offered evidence is summary in nature and thus avoids the risk of unfair prejudicial effect. As a result, the evidence of Trek’s past wheel separation incidents is likely to be admitted in some form at trial.
Arguing against this conclusion, Trek cites Magistrate Judge Rau’s holding that Plaintiffs failed to demonstrate how Sanny’s injuries compare to the majority of injuries suffered in other wheel detachment accidents. See Order, Jan. 2, 2013 [Docket No. 69] 8. Before Judge Rau, Plaintiffs argued for the appropriateness [*16] of punitive damages in part by describing several specific examples of injuries suffered by Trek bicycle riders. Judge Rau properly held that Plaintiffs had failed to demonstrate that injuries as serious as Sanny’s had occurred in the majority of wheel detachment claims. Id. As a result, Judge Rau held Plaintiffs had not demonstrated injuries rising to the level of seriousness required by Minnesota’s punitive damages statute. Id. Here, the evidence at issue is not of past injuries, but of the wheel detachments themselves. As discussed above, this more limited evidence is probative of the design’s safety and Trek’s notice of prior accidents. See, e.g., Broun, Kenneth, McCormick on Evidence § 200 (7th ed. 2013) (when evidence of other accidents used to show manufacturer’s notice, similarity to accident at issue “can be considerably less” than for other purposes). As such, evidence of past wheel separation claims may be relevant at trial for a purpose other than that argued in the punitive damages context.
The admissible evidence of Trek’s prior wheel separation claims supports a finding that genuine issues of material fact exist. Among other things, evidence of prior accidents may demonstrate: [*17] (1) a design defect; or (2) the manufacturer’s knowledge that prior accidents had occurred. See Lovett v. Union Pac. R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000). Regarding the former purpose, evidence of similar accidents may indicate that the product at issue is unsafe and thus defective. See id. Even accidents occurring after the accident in question may be probative of safety. 4 See Indep. Sch. Dist. No. 181, Brainerd v. Celotex Corp., 309 Minn. 310, 244 N.W.2d 264, 266 (Minn. 1976); Steenson, Michael K., et al., 27 Minn. Practice Series § 12.9 (2012 ed.). Regarding the latter purpose, a manufacturer’s notice of other accidents addresses whether a manufacturer exercised sufficient care to eliminate any unreasonable risk of harm from foreseeable uses of its product at the time of design. See, e.g., Hammond v. Compaq Computer Corp., No. 06-1670, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4-5 (D. Minn. Sept. 29, 2009) (potential foreseeability of harm addressed in part whether manufacturer used reasonable degree of care in design).
4 In this case, evidence of accidents occurring after Sanny’s injuries may be relevant because, as Trek concedes, bicycles have a long useful life. As a result, bicycles manufactured at the same [*18] time as or before Sanny’s bicycle may have had wheel detachments after Sanny’s accident.
Trek’s history of wheel separation claims creates a question of fact regarding whether Trek exercised reasonable care in its failure to include a secondary retention device in its 1990 design of the bicycle Sanny later purchased. First, the parties dispute the significance of what these prior incidents demonstrate concerning the effectiveness of secondary retention devices. Plaintiffs argue Trek’s wheel separation claims decreased in the early 1990’s because of Trek’s use of secondary retention devices; Trek argues proper education in the use of quick release devices increased safety despite the presence of secondary retention devices. The parties’ differing but reasonable views of the same evidence demonstrates a question of fact. See, e.g., Riedl v. Gen. Am. Life Ins. Co., 248 F. 3d 753, 756 (8th Cir. 2001) (citation omitted). Second, the pre-1991 incidents of wheel separation are evidence that Trek had some notice of the risks associated with quick release devices, which creates a question of fact regarding the reasonableness of its decision to forgo secondary retention devices until 1990-91.
In [*19] addition, the parties’ disagreement over the specifics of the wheel separation evidence itself also precludes summary judgment. The parties simply disagree about how many of the pre-1991 wheel separations involved bicycles that had actually been equipped with secondary retention devices. Neither party has provided any evidence that conclusively resolves the discrepancy; instead, the parties rely on the contradictory recollections of deponents. See Read Dep. 152-53; Vaughn Aff. Ex. QQ (“Bretting Dep.”) 81-91. Further, Trek has no evidence showing that any of the bicycles involved in the recorded wheel detachments were actually equipped with secondary retention devices at the time of detachment. 5 A direct, factual conflict over Trek’s wheel separation data exists, and at summary judgment this conflict must be resolved in favor of Plaintiffs.
5 Trek also argues Plaintiffs have failed to present statistical evidence, such as through a study using epidemiological methods, that secondary retention devices have resulted in statistically significant increases in safety. However, such an analysis is not necessary to establish a question of fact in a design defect case. See, e.g., Sobolik, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *3 [*20] (holding even a single prior accident could establish question of fact); see also Hammond, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4 (finding question of fact although product had been manufactured 1.5 million times and used without incident).
c. Industry standards
i. Industry publications
Industry standards at the time the manufacturer chose the design at issue is one factor in determining the manufacturer’s exercise of reasonable care. See, e.g., Buchanna v. Diehl Mach, Inc., 98 F.3d 366, 371 (8th Cir. 1996) (interpreting comparable Arkansas law and holding evidence of compliance with industry standards not conclusive proof of safety, but rather “competing evidence from which to choose”). Plaintiffs submit excerpts from patents, publications, books, and other materials indicating bicycle manufacturers and consumers had discussed the safety of quick release devices well before 1990. See, e.g., Vaughn Aff. Ex. J (excerpt from 1984 edition of American Bicyclist and Motorcyclist magazine noting availability of secondary retention devices). Trek does not dispute the veracity of these documents, nor does it offer any reason why Plaintiffs’ submitted evidence on this topic should be disregarded. Thus, this evidence [*21] further establishes a genuine question of material fact, as it suggests Trek knew or should have known that others in the bicycle industry had acknowledged the risk of harm resulting from quick release wheel separation, and that other manufacturers had already begun implementing secondary retention devices.
ii. Schwinn Bicycles
Plaintiffs also cite the actions of Schwinn Bicycles (“Schwinn”), another bicycle manufacturer, as evidence of the industry standard. In particular, Plaintiffs describe the development of the “Brilando clip” by Frank Brilando, a retired Schwinn employee. Testifying in a deposition for previous product liability litigation against Trek, Brilando stated that in the late 1960’s and early 1970’s Schwinn became concerned about the number of occurrences of quick release wheel separations. Vaughn Aff. Ex. D (“Brilando Dep.”), at 25-27 (testimony from Thurston v. Trek Bicycle Corp., No. PI-96-013351 (Hennepin Dist. Ct. 1998)). As a result, Schwinn halted sales of a particular bicycle model that used a quick release device. Id. at 88-89. Brilando then designed and patented the “Brilando clip,” two of which affix to the quick release skewer. When attaching a quick release [*22] wheel, the rider then manually clips the other ends of the Brilando clips to specially-mounted pegs extruding from the fork blades. Id. at 37-40.
Plaintiffs argue Brilando’s testimony demonstrates the safety conferred by secondary retention devices in general. Schwinn began incorporating Brilando clips into its quick release designs in 1976. From 1968 to 1985, Schwinn received 131 reports of wheel detachments in quick release bicycles without secondary retention devices. Vaughn Aff. Ex. E (Schaffner Stipulation). To Brilando’s knowledge, Schwinn did not receive a single report of wheel detachment in bicycles equipped with these secondary retention devices from 1976 to 1992, when Brilando retired. Id. at 55-56. From this evidence, Plaintiffs argue a jury could reasonably conclude secondary retention devices feasibly increase the safety of quick release bicycles.
Trek responds that Brilando’s testimony is both hearsay and irrelevant. In terms of admissibility, Trek argues Brilando’s deposition transcript is hearsay, and that Plaintiffs never noticed Brilando as an expert witness or submitted an expert report by him. Even if his testimony was admissible, Trek argues neither Brilando nor [*23] Schwinn considered quick release bicycles without secondary retention devices to be defective in the early 1990’s. See Schaffner v. Chicago & N.W. Transp. Co., 161 Ill. App. 3d 742, 515 N.E.2d 298, 113 Ill. Dec. 489 (Ill. Ct. App. 1987) (affirming jury verdict that a 1973 Schwinn bicycle was not unreasonably dangerous because it lacked secondary retention device), aff’d, 129 Ill. 2d 1, 541 N.E.2d 643, 133 Ill. Dec. 432; Brilando Dep. 149-50.
Based on the current record, at least some of Brilando’s deposition testimony from Thurston is likely to be admissible at trial. Plaintiffs’ counsel submitted an affidavit stating Brilando was unavailable as a witness in this case due to his age, physical condition, and deteriorating memory. Vaughn Aff. ¶ 4. Also, Brilando’s prior deposition was taken in a product liability lawsuit against Trek, in which Trek’s previous counsel had the “opportunity and similar motive to develop [the testimony] by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1)(B). As a result, Brilando’s testimony appears to qualify for an exception to the rule against hearsay. However, Trek is correct that Plaintiffs did not disclose Brilando as an expert witness. As a result, Brilando’s opinions are inadmissible; only his factual knowledge [*24] of Schwinn’s bicycle designs and safety record will be received in evidence.
Brilando’s testimony is an additional factor leading to the conclusion that there is a genuine question of fact for jury consideration. Brilando testified that Schwinn received zero claims of quick release wheel separations in bicycles equipped with the Brilando clips, which may lead a jury to conclude Schwinn’s secondary retention device increased the safety of quick release bicycles. Also, although Brilando’s knowledge was limited in some respects, his testimony is some evidence of the bicycle industry standards at the time Trek chose the design for Sanny’s bicycle.
iii. CPSC rules and ASTM standards
The parties argue at length regarding the significance of rules promulgated by the Consumer Product Safety Commission (CPSC) for bicycle safety. The CPSC is tasked with protecting the public against injury resulting from consumer products, and performs education, research, and rule-making functions. The history of how bicycle safety came under the CPSC’s purview is stated in Forester v. Consumer Prod. Safety Comm’n, 559 F.2d 774, 182 U.S. App. D.C. 153 (D.C. Cir. 1977), and a detailed summary is not necessary here. Of relevance, however, [*25] is the CPSC’s decision in 1978 to promulgate a rule addressing bicycle wheel hubs. See 16 C.F.R. § 1512.12. In § 1512.12, the CPSC required front wheel hubs to have positive retention devices but specifically exempted quick release bicycles. Id. § 1512.12(c).
The parties offer very different views of how the CPSC’s position on quick release bicycles evolved. Plaintiffs argue that bicycle manufacturers had previously only marketed quick release devices to bicycle racers, and that Schwinn, leading the industry, had only just begun marketing quick release devices to casual riders by 1978. Plaintiffs cite evidence that by 2004, the CPSC had begun urging ASTM International (formerly known as the American Society for Testing and Materials), an organization that adopts voluntary manufacturing standards, to take the position that all quick release devices should have secondary retention devices. See, e.g., Vaughn Aff. Ex. M. Trek responds that ASTM standards are entirely voluntary and that if the CPSC had truly determined quick release devices to be unsafe, the agency would have taken regulatory action. In addition, Trek cites a CPSC bicycle safety study from 1994 in which the agency concluded [*26] no revisions to its bicycle regulations were required. Haag Aff. Ex. N.
The evidence offered by the parties regarding the CPSC is of limited value. Although Plaintiffs credibly argue the CPSC had begun advocating for voluntary standards adopting the use of secondary retention devices, all of the cited evidence dates from 2004 or later: well after Trek designed Sanny’s bicycle. Conversely, Trek’s cited study from 1994 does reflect the CPSC’s determination that it did not need to revise its safety standards; however, the CPSC’s report did not specifically address quick release devices or secondary retention devices. Plaintiffs’ evidence also indicates that the CPSC may have chosen to pursue non-regulatory safety standards for quick release devices, and that bicycle companies had failed to report wheel detachments to the CPSC. In short, much of the CPSC evidence does not reflect industry standards in 1990; to the extent any of the evidence is relevant, it is conflicting and further raises questions of fact.
d. Summary
Ultimately, reasonable minds could disagree as to whether Trek used reasonable care in evaluating the balance between safety and utility at the time of the manufacture of Sanny’s [*27] bicycle. As Trek concedes, bicycle accidents often result in serious injury, and occasionally in death. Def.’s Mem. 5-7. However, Trek argues that the wheel detachment rate is so small that although serious injury or death is possible, the design at issue cannot be unreasonably dangerous, even if several feasible alternative designs exist. In 1990, Trek considered much of the same evidence now before the Court and decided to forgo secondary retention devices. In Trek’s view, these retention devices did not tangibly increase safety and also decreased the utility of the quick release device. Weighing the reasonableness of that decision, and the risk of harm against its seriousness, is a question of fact best decided by a jury. See Thompson, 456 F.3d at 809.
3. Failure to Warn
In addition to their design defect claim, Plaintiffs allege Trek failed to properly warn Sanny about the danger of riding a quick release bicycle not equipped with a secondary retention device. Under Minnesota law, a plaintiff claiming a failure to warn must show: “(1) the defendant[] had reason to know of the dangers of using the product; (2) the warnings fell short of those reasonably required, breaching the duty [*28] of care; and (3) the lack of an adequate warning caused plaintiff’s injuries.” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 924 (8th Cir. 2004) (quotation omitted). To establish causation, a plaintiff must demonstrate that a warning would have caused him or her to act in a way that would have avoided the injury. See Ramstad v. Lear Siegler Diversified Holdings Corp., 836 F. Supp. 1511, 1516 (D. Minn. 1993).
Plaintiffs claim must fail for two reasons. First, Plaintiffs allege Trek failed to warn Sanny that his bicycle lacked a secondary retention device. However, a product warning need only warn about the inherent dangers and proper use of the product; there is no requirement that a product warning instruct the user as to other possible designs or products. See Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 582 (Minn. 2012).
Second, Plaintiffs cannot establish the element of causation. Sanny testified he had owned quick release bicycles since the late 1970’s and had at least a passing familiarity with quick release devices since that time. Sanny Dep. at 11-15. Sanny had owned this Trek bicycle for about 16 years before his accident. See id. at 14. During the year before his accident, [*29] Sanny testified he installed and removed his quick release wheel every 2 to 4 weeks and agreed that he was “perfectly competent” to do so. Id. at 14-15. In addition, Sanny also testified he knew he could crash if he did not properly secure his quick release device. 6 Sanny Dep. 46-51. Although causation is usually a question of fact, Sanny’s own testimony precludes Plaintiffs’ failure to warn claim in this case. Plaintiffs cannot show how warning Sanny as to the potential dangers and proper use of a quick release device would have caused him to act differently, because Sanny admits he already possessed all of the information that would be included in a legally adequate warning. See Ramstad, 836 F. Supp. at 1516.
6 At his deposition, Sanny initially disputed knowing how sudden the accident resulting from a wheel detachment could be, testifying, “I don’t think anybody has an idea they’re going to go crashing to the ground.” Sanny Dep. 48. Trek’s counsel then asked: “So you think you needed someone to tell you beforehand that if the front wheel became detached from the fork that you should have been warned there could be a catastrophic – you could fall off the bike?” Sanny answered, “No, [*30] sir.” Trek’s counsel confirmed, “You knew that?” Sanny responded, “Yes.” Id. at 48-49.
4. Post-Sale Failure to Warn
Plaintiffs also allege Trek had a duty to contact Sanny after his purchase of the bicycle to warn him about the risks of using a quick release device without a secondary retention mechanism. Minnesota has recognized a manufacturer’s post-sale duty to warn “only in special cases.” Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988). No specific test for establishing a post-sale duty to warn exists, but Hodder noted several factors warranting the recognition of a duty in that case, including:
(1) the defendant’s knowledge of problems with the product since the late 1950’s, including the knowledge that the product might explode with little provocation; (2) the hidden nature of the danger; (3) the fact that when explosions did occur, serious injury or death usually resulted; (4) defendant remained in that line of business, continued to sell parts for use with the product and had advertised the product within five years of the plaintiff’s injury; and (5) defendant had undertaken a duty to warn of product dangers.
Ramstad, 836 F. Supp. at 1517 (analyzing Hodder). [*31] Several decisions have indicated that “continued service, communication with purchasers, or the assumption of the duty to update purchasers, is a necessary element” for a post-sale duty to warn. McDaniel v. Bieffe USA, Inc., 35 F. Supp. 2d 735, 741 (D. Minn. 1999) (collecting cases).
As an initial matter, Trek argues Plaintiffs have not properly pled a claim for post-sale failure to warn. Trek argues that nowhere in the Complaint did Plaintiffs allege sufficient facts to state a claim under the basic notice pleading standards of Rule 8 of the Federal Rules of Civil Procedure and the fair notice requirements of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Plaintiff responds that the following allegations put Trek on notice of this claim:
The separation of the front wheel from the front fork of the subject Trek 930 Single Track bicycle and the resulting injuries to Plaintiff John Sanny were caused and contributed by the negligent conduct of Defendant. Said negligence includes, by way of example, but is not limited to, the following:
1. Negligent failure to incorporate a backup safety retention system into the design of the front wheel attaching mechanism to prevent the front wheel [*32] from detaching from the frame in the event the primary attaching mechanism came loose;
2. Negligent failure to advise customers of alternative designs employing such safety retention systems;
3. Negligent failure to advise consumers of the importance of such safety retention systems, and that unintentional misapplication of the primary attaching mechanisms was a known and recurring danger.
Compl. 2. In addition, Plaintiffs rely on a letter their counsel sent to Trek’s counsel before filing the Complaint, in which Plaintiffs cited Hodder and discussed post-sale failures to warn. Pls.’ Opp. 46.
Plaintiffs failed to state a claim for post-sale duty to warn in the Complaint. Under the pleading standards of Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), plaintiffs must state more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Plaintiffs have not even crossed this minimal threshold of stating a claim for post-sale duty to warn. Nothing in the above-quoted language would put Trek on notice that Plaintiffs had alleged a post-sale duty to warn claim, a claim that arises “only in special cases.” Plaintiffs did not allege [*33] Trek had a post-sale duty of any kind, nor did the Complaint even allude to Trek’s knowledge of a “hidden danger” or the existence of other Hodder factors. Although Plaintiffs explicitly discussed a post-sale duty to warn in their letter to Trek’s counsel, pre-litigation communications may not supplement legal pleadings. See, e.g., Garth v. White, No. 4:06-CV-1112 CAS, 2007 U.S. Dist. LEXIS 53062, 2007 WL 2128361, at *1 (E.D. Mo. July 23, 2007). Allowing such supplementation would defeat the purpose of pleading requirements, and allow plaintiffs to scatter hidden claims among their unfiled, unserved communications.
Even if Plaintiffs had stated a claim for a post-sale duty to warn, they have not demonstrated material questions of fact on that claim. Plaintiffs attempt to portray the potential risks associated with quick release devices as hidden by Trek from its own employees, making the risk more pernicious in nature and warranting a continuing duty to warn. But as Judge Rau observed, Plaintiffs’ own efforts to demonstrate the widely-known risks associated with quick release devices defeats this argument. Order, Jan. 2, 2013 at 6-7. In addition, Plaintiffs have not demonstrated whether Trek undertook a duty to [*34] warn consumers, or whether Trek engaged customers in ongoing relationships in a way that would give rise to a post-sale duty to warn. See McDaniel, 35 F. Supp. 2d at 741. Finally, while the potential for serious harm exists as a result of quick release devices, Plaintiffs have not demonstrated that serious harm “usually” results from use of such devices. Ramstad, 836 F. Supp. at 1517. Although no one factor is necessarily determinative under Hodder, Plaintiffs have not demonstrated the necessary “critical mass” to establish a post-sale duty to warn in this case.
B. Motion to Strike Errata Sheet
Trek’s second motion asks the Court to strike Plaintiffs’ expert David Hallman’s errata sheet from the record. Hallman is a materials/mechanical engineer with Crane Engineering, a company based in Plymouth, Minnesota. See Hallman Report. Hallman possesses degrees in mechanical engineering, and in materials science and engineering. He has also conducted limited research in the area of automobile accidents, and has attended conferences and seminars about vehicle accidents. Hallman has never professionally studied or worked on bicycles or bicycle design. Plaintiffs consulted Hallman for his opinions [*35] not only on the nature of Sanny’s accident, but also regarding Trek’s design choices and the safety of quick release devices.
Trek deposed Hallman on November 14, 2012. At the end of the deposition, neither Hallman nor Plaintiffs’ counsel requested the right to review and make corrections to Hallman’s testimony. Nevertheless, exactly 30 days later Hallman submitted an errata sheet indicating 57 edits to his deposition testimony. Many of his changes completely reverse or substantively amend Hallman’s original answers to Trek’s deposition questions. For example, Trek’s counsel asked Hallman about the kind of wheel hub Sanny’s bicycle had, and Hallman originally answered, “I don’t remember.” Haag Aff., Jan. 29, 2013 [Docket No. 73] Ex. Q (“Hallman Dep.”), at 50. On the errata sheet, Hallman changed this answer to “Sanny’s bicycle had a Sansin hub on the front wheel.” Id. at Ex. FF (“Errata Sheet”). In another instance, counsel asked Hallman if he knew of any engineering standards that might require a bicycle manufacturer to recall older designs, and Hallman answered, “No.” Hallman Dep. 104. On the errata sheet, Hallman changed this to: “Engineering standards, no. Engineering ethics (NSPE [*36] or ABET) would require it. An engineer’s primary responsibility is to protect the public. A recall would have done that.” Errata Sheet at 2. Several of Hallman’s edits actually include page and line citations to other depositions. Hallman did not provide any explanation for his changes.
Trek argues Hallman’s errata sheet not only fails to meet the technical requirements of the federal rules, it also abuses the purpose of the rules, making it impossible to fairly depose a witness. Plaintiffs respond that Hallman’s changes reflect clarifications or corrections consistent with Hallman’s reported opinions, and that some reflect information with which Hallman later became familiar.
The process for submitting an errata sheet is straightforward. Under Rule 30(e) of the Federal Rules of Civil Procedure allows a deponent or party, before the deposition is completed, to request the option to review the deposition transcript or recording and sign a statement listing changes “in form or substance” and “the reasons for making them.” Once the transcript or recording is available, the deponent or party making the request has 30 days to review and submit corrections. See Fed. R. Civ. P. 30(e).
Although [*37] the procedural requirements are clear, Courts have divided on the use of errata sheets to make changes beyond basic corrections. Several courts have followed the reasoning in Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981), in which a deponent made 69 substantive changes to his deposition. The court held that the phrase “changes in form or substance” plainly allowed any changes, even when those changes contradicted original answers or were otherwise unconvincing. Id. at 641. However, the court required the original deposition testimony to remain a part of the record, and held opposing counsel could read the original deposition to the jury at trial. Id. The court also allowed opposing counsel to conduct an additional deposition if the errata sheet made the original deposition “incomplete or useless.” Id. at 642. These measures, the court held, would check abuse. Id.
Plaintiffs cite three decisions from this district to support its argument of allowing substantive changes. See ADT Sec. Servs., Inc. v. Swenson, No. 07-2983, 2010 U.S. Dist. LEXIS 3456, 2010 WL 276234, at *7-8 (D. Minn. Jan. 15, 2010), overruled on other grounds, 2010 U.S. Dist. LEXIS 74987, 2010 WL 2954545; Morse v. Walgreens Co., No. 10-2865, 2011 U.S. Dist. LEXIS 87709, 2011 WL 3468367, at *3 n.3 (D. Minn. Aug. 8, 2011); [*38] and Nw. Airlines, Inc. v. Am. Airlines, Inc., 870 F. Supp. 1504, 1508 (D. Minn. 1994). Although Hallman’s corrections far surpass the corrections made in these cases in terms of volume and substance, these decisions did indeed hold a deponent could substantially change one or more aspects of their deposition testimony.
Trek acknowledges a division among courts on the use of errata sheets, but argues that preventing depositions from becoming “take home examinations” is the better view. See Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). In Greenway, the plaintiff made 64 significant changes to his deposition via an errata sheet. Id. at 323. The court ordered deletion of the changes, holding Rule 30(e) only existed to allow a party to correct errors made by the court reporter. The rule did not allow a deponent to “alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses.” Id. at 325. Numerous courts have agreed. See, e.g., Norelus v. Denny’s, Inc., 628 F.3d 1270, 1281-82 (11th Cir. 2010) (collecting cases). The Eighth Circuit has not yet taken a position on either side [*39] of the division of authority.
Ultimately, a flexible approach, such as the one articulated by the Third Circuit Court of Appeals, best serves the interests of fairness and efficiency. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 267-68 (3d Cir. 2010). In EBC, the court noted that allowing the original deposition to be read at trial, or allowing a supplemental deposition after the submission of an errata sheet, would offer “cold comfort” to a party that might otherwise have prevailed at summary judgment. See id. at 268. Likening the situation to the court’s view of “sham affidavits,” the Third Circuit held that a “one-size-fits-all rule” would not be appropriate. 7 Id. at 270. The court thus held district courts have the discretion to strike substantive changes made in errata sheets, if the deponent fails to provide “sufficient justification.” Id. EBC’s reasoning is persuasive, in particular because the Eighth Circuit has also articulated a flexible, though cautious, approach to striking “sham affidavits.” See, e.g., City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 475-76 (8th Cir. 2006).
7 The “sham affidavit” doctrine, used in both the Third and Eighth circuits, permits courts [*40] to “ignore affidavits that contradict earlier deposition testimony without adequate explanation . . . .” EBC, 618 F.3d at 268; Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).
In this case, Hallman’s errata sheet will be stricken. Significantly, and unlike in the cases cited by Plaintiffs, neither Hallman nor Plaintiffs’ counsel exercised their right to review Hallman’s deposition transcript and submit a signed sheet of corrections. Since 1991, Rule 30(e) has required either the deponent or a party to request the right to review and sign before the conclusion of the deposition. Fed. R. Civ. P. 30(e) advisory committee’s note. Here, neither Hallman nor Plaintiffs made this request, either before or after the deposition concluded, and they have not articulated good cause for failing to do so. In addition, Hallman did not state a single explanation or justification for his numerous and substantive edits. Trek’s motion to strike could be granted on these bases alone.
Just as importantly, Hallman’s edits unquestionably reflect an attempt to bolster the substance and credibility of his testimony, and the submission of these edits occurred just after the [*41] deposition deadline had passed and shortly before the dispositive motion deadline. See Stip. to Amend Scheduling Order [Docket No. 16]. Many of Hallman’s “corrections” include citations to the record, to statutes and jury instruction models, and to engineering standards never once mentioned in the original deposition. Reading Hallman’s original deposition to the jury as a counterbalance to his edited testimony would offer “cold comfort” to Trek, which seeks to exclude his expert witness testimony at the dispositive motion stage. See EBC, 618 F.3d at 268. Similarly, allowing Trek to further depose Hallman as this stage could cause significant inefficiency and delay. Under the circumstances of this case, Hallman’s errata sheet will be stricken.
C. Motion to Exclude Expert Testimony
Finally, Trek moves to exclude Hallman’s testimony as Plaintiffs’ expert. Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The rule states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the [*42] trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Rule 702 reflects but does not codify the holding of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and the cases interpreting Daubert, including Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Fed. R. Evid. 702 advisory committee’s note.
Under Daubert, trial courts act as “gatekeepers” to ensure that: the proposed expert testimony is useful to the factfinder in deciding the ultimate fact issue; the expert witness is qualified; and the proposed testimony is “reliable or trustworthy in an evidentiary sense. . . .” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). In addition to Rule 702, trial courts may consider several factors set out by Daubert for determining reliability, including: (1) whether the theory can be (and has been) tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error; and [*43] (4) whether the theory enjoys general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593-94. Courts have also considered whether “the expertise was developed for litigation or naturally flowed from the expert’s research.” Lauzon, 270 F.3d at 687.
No single Daubert or Rule 702 factor is determinative. Instead, the trial court must evaluate reliability in a flexible manner, as the Daubert factors may not necessarily apply “to all experts or in every case.” Kumho, 526 U.S. at 141. Thus, the trial court has broad discretion not only in ultimately determining reliability, but also in how it determines reliability. Id. at 142. Finally, the trial court should generally resolve doubts about the usefulness of an expert’s testimony in favor of admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006). “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001).
Hallman produced two reports. In support of each, Hallman reviewed patents, Trek’s promotional and safety materials, documents produced in this and [*44] other litigation, and the Minnesota jury instruction guide. Hallman also visited stores and casually observed bicycles in use. In terms of testing, Hallman used equipment to test the strength of properly and improperly affixed quick release devices on a single Trek bicycle, and he also studied the results from Trek’s similar, internal tests. See Hallman Dep. 49-50. Hallman did not similarly test the effect of secondary retention devices, nor did he review similar testing by another party. With this background, Hallman opined that the design of Sanny’s bicycle was unreasonably dangerous, and that tab tips or a similar secondary retention device would have prevented Sanny’s accident. Hallman also evaluated Sanny’s bicycle and concluded that Sanny’s quick release became loose while it was locked to a bicycle post outside of his workplace, shortly before Sanny’s accident.
1. “Unreasonably Dangerous” Opinion
Trek asserts that Hallman reached his ultimate conclusion–that Sanny’s bicycle was unreasonably dangerous–without reliable bases and without the proper qualifications. Trek argues Hallman’s definition of “unreasonably dangerous” relies on circular logic and that his overall opinion is [*45] not based on data but on his own self-serving assertions. It also argues Hallman neither conducted tests nor conducted a statistically reliable study of data demonstrating an increase in safety from secondary retention devices. Trek also argues Hallman has no professional experience in bicycle safety or design, a prerequisite for experts in this case.
Hallman’s ultimate opinion regarding whether Sanny’s bicycle was “unreasonably dangerous” must be excluded. In his deposition, Hallman never clearly articulated his definition for “unreasonably dangerous.” Instead, Hallman circuitously defined an unreasonably dangerous product as one that was “more likely to cause injury” than a product that was not unreasonably dangerous. Hallman Dep. 5-6. As discussed above, “unreasonably dangerous” is a key legal consideration in a design defect claim. While an expert may testify as to the ultimate question before the factfinder, he may be prevented from doing so if his testimony in this regard is more likely to confuse a jury than aid it. Cf. United States v. Kelly, 679 F.2d 135, 136 (8th Cir. 1982) (allowing expert to testify as to ultimate question in part because testimony used commonly understood [*46] legal terms, thus avoiding risk of confusion).
In addition, Hallman did not conduct any testing of secondary retention devices. Hallman tested the reliability of a quick release device operating without a secondary retention mechanism, and also studied similar tests by Trek. He thus concluded that an improperly-affixed device could easily come loose. But Hallman conducted no similar analysis for bicycles equipped with secondary retention devices. On the other hand, because manufacturers have sold various secondary retention devices in the market for many years now, testing is not necessarily a requisite for an opinion about safety. See, e.g., Young, 428 F.3d at 790.
Here again, however, Hallman did not conduct any repeatable analysis in support of his opinion that a bicycle without secondary retention devices is unreasonably dangerous. Under Rule 702, the court’s primary concern is an expert’s methodology, not their conclusions. Bonner, 259 F.3d at 929. Hallman did not use a particular method to reach his ultimate conclusion. Instead, he simply reviewed deposition transcripts and Trek’s wheel detachment data and formed his opinion. See Hallman Dep. 23-25. Nothing about this opinion derives [*47] from scientifically reliable or repeatable methods; it simply affirms Plaintiffs’ view of the evidence without adding insight. A jury could, and should, draw its own conclusions about the testimony and data using common sense. Hallman’s view that Sanny’s bicycle was unreasonably dangerous would not assist the jury.
2. Failure to Warn Opinion
Because the Court grants Trek’s motion for summary judgment on Plaintiffs’ failure to warn claim, Hallman’s testimony in this area is irrelevant. Even if Plaintiffs’ failure to warn claim survived, Hallman’s testimony would not be admissible. In the failure to warn context, experts typically opine regarding a warning’s design or content, or whether a warning could have prevented the accident in question. See, e.g., Finke v. Hunter’s View, Ltd., 596 F. Supp. 2d 1254, 1263 (D. Minn. 2009). Here, Hallman opines only that Trek should have advised Sanny and other consumers of the risk in riding without secondary retention devices. See Pls.’ Mem. Opp. Mot. to Exclude [Docket No. 92] 5; Hallman Aff. Ex. 2 (“Hallman Supp. Report”), at 6. Put plainly, Hallman’s opinions address Trek’s legal duty to warn, and must thus be excluded.
3. Opinions Regarding Bicycle [*48] Mechanics and Sanny’s Accident
Although the above expert opinion testimony previously discussed will be excluded, Hallman does have admissible testimony which may aid the jury. Hallman’s analysis of how quick release devices function, and their potential for wheel detachment without secondary retention devices, are based on mechanical principles within Hallman’s expertise and derived from both Hallman’s and Trek’s own tests. Also, testimony derived from Hallman’s study of Sanny’s bicycle is based on the close analysis of metal deterioration and usage marks, and is within Hallman’s expertise as a materials and mechanics engineer. Although Hallman’s primary expertise centers on automobile accidents, many of the same reconstruction principles could arguably apply here. Because Trek offers no specific argument against these opinions, and because the opinions may aid the jury, these opinions will not be excluded at this stage. 8
8 Trek focused on the wholesale exclusion of Hallman’s testimony, and did not make specific arguments as to each of Hallman’s opinions. The admissibility of opinions not excluded here may be addressed by the parties at or before trial.
IV. CONCLUSION
Based on the foregoing, [*49] and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Trek’s Motion for Summary Judgment [Docket No. 77] is GRANTED IN PART and DENIED IN PART.
2. Trek’s Motion to Strike Changes to the Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] is GRANTED.
3. Trek’s Motion to Exclude Testimony of Plaintiffs’ Expert [Docket No. 76] is GRANTED IN PART and DENIED IN PART; the testimony of David Hallman is limited as set forth above.
BY THE COURT:
/s/ Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: May 8, 2013.
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