Businesses Who Help Businesses in the Outdoor Industry: OutdoorIndustryB2B.com
Posted: November 30, 2012 Filed under: Uncategorized | Tags: Business-to-business, Marketing and Advertising, Marketplace, x, y, z Leave a comment
OutdoorIndustryB2B.com, a business-to-business website, is an inexpensive alternative for sellers who market services or supplies to outdoor industry buyers. Buyers such as manufacturers and any type of outdoor business can find the resources they need to grow their business and produce their products.
A Seller Can Be: Anybody or company who has a service or supply they want to market to buyers in the Outdoor Industry can post their profile. Sellers can also be buyers.
Discover new companies that have cutting-edge talent or hard-to-find services. View detailed information about sellers who specialize in the outdoor niche all in one place. Send RFP’s to one or more sellers simultaneously making your time spent searching and communicating with a seller more efficient. OutdoorIndustryB2B.com is a self-serve site and easy to use. OutdoorIndustryB2B.com – New Companies Ready To Do Business
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Sellers: Create robust profiles including past clients, portfolios, videos, special services etc.
SCHOLE: Call for Associate Editors
Posted: November 29, 2012 Filed under: Uncategorized | Tags: Associate Editor, education, Journal, SCHOLE Leave a commentThe editors of SCHOLE have asked me to share this announcement with you. This is a great opportunity. Please pass it along to anyone who might be interested. Also, please contact them if you have work you would like to have considered for publication.
SCHOLE: A JOURNAL OF LEISURE STUDIES & RECREATION EDUCATION
CALL FOR ASSOCIATE EDITORS
Schole: A Journal of Leisure Studies and Recreation Education is seeking Associate Editors to serve a three-year term. Schole is a refereed publication of the Education Network. Schole was established to disseminate knowledge related to park and recreation courses, curricula, and teaching. Manuscripts address a wide variety of issues concerning undergraduate and graduate education such as curriculum planning, curriculum design, future employment requirements, trends and their impacts, student and faculty profiles, course content, fieldwork and internships, leisure and the humanities, teaching methods, accreditation, community education and tenure and promotion, book reviews, and classroom learning activities.
The new Associate Editors will be selected to serve on the Editorial Board for the 2013–2015 issues of the journal.
Duties of an Associate Editor include managing the review process for one to three manuscripts annually. Associate Editors review each manuscript as well as obtain two additional reviews. Associate Editors then synthesize the reviewers’ comments and provide a recommendation for publication to the Co-Editors. Associate Editors also provide feedback to the Co-Editor’s concerning all aspects of the editorial process.
Associate Editor Applications
To be considered for an Associate Editorship of Schole, please submit a one-page letter of interest that addresses your approach toward the peer review process, the content areas you feel qualified to review (e.g., outdoor recreation, tourism, survey research), previous editorial experience (e.g.,journal manuscript reviewer), previous publication experience, and a current vita. Please send all materials electronically by December 3, 2012 to mamulvaney.
If you have questions, comments or concerns, please contact the Co-Editors, John Henry Pommier (John.Pommier) or Mike Mulvaney (mamulvaney
Sent by:
William Anderson
Director of Sales and Marketing
Sagamore Publishing LLC
1807 N. Federal Drive
Urbana, IL 61801-1051
(217) 359-5940
2012 Fall Catalog (PDF download)
http://www.sagamorepub.com/files/catalog/catalog.pdf
Electronic gadgets including video cameras interfere with Avalanche Beacons
Posted: November 28, 2012 Filed under: Avalanche | Tags: Attorney at law, avalanche, Avalanche Beacons, Avalanches, Go Pro, Jim Moss, Recco, Recco Reflector, Rock climbing, Ski Resort, Video Cameras 2 CommentsBefore you head out, find out what electronics interfere and which ones you should leave in the car or turn off.
This video popped up the other day: Transceiver / Go Pro Interference. It shows a video camera affecting an avalanche beacon. If you wear a beacon, and you should, in or out of bounds, you should know which of your electronics may affect your beacon.
Dale Atkins, an Avalanche Guru and Recco’s Training and Education Manager for North America told me:
English: Rescuer using RECCO R9 detector on training drill in Colorado.
GoPros cause grief to some transceivers (and probably to all), but this is not a surprise, and it’s not the fault of the transceiver companies. All electronic devices generate electromagnetic fields. The problem is more noticeable with GoPros (and likely with other movie cameras, too) than with our cell phones or radios because communication devices have shielding. GoPros, iPods, power lines, ski lift motors, thunderstorms, etc. do not.
These electronic devices (and phenomena) rarely cause problems for a sending transceiver, and typically only a few centimeters of separation are enough. However, receive is another story. Transceiver companies have for a number of years recommended one separate electronic gear from their receiving transceiver by 30 centimeters. However, over the years this “electronic” gear was usually shielded communication devices, so the 30 cm distance was more than sufficient. However, now with other electronic gizmos, like GoPros that are “on” (powered) all the time, I suspect we’ll see a new recommendation from the transceiver companies. It might say something to the effect that these devices be turned off and removed off the searcher. However, that’s my guess.
Reccois a non-beacon avalanche search device. The handheld device locates buried victims based on a small bar that is usually sewn into their clothing. If you are
English: Avalanche rescue search with RECCO detector
looking for ski or mountaineering clothing, I would suggest you look for something that has the Recco Reflector sewn in and a Recco hangtag.
So?
If you ski wearing a beacon, you should pay attention to what is going on with all the battery operating devices you carry.
If you are an Avalanche Beacon manufacturer, you should probably put a notice or warning in your instructions to let people know of the risks.
What do you think? Leave a comment.
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Copyright 2012 Recreation Law (720) Edit Law
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Journal of Leisure Research Vol. 44 No. 4
Posted: November 27, 2012 Filed under: Youth Camps, Zip Line | Tags: University of Illinois, x, y, z Leave a comment
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Utah Rental Release void because the product was subject to recall
Posted: November 26, 2012 Filed under: Skiing / Snow Boarding, Utah | Tags: Consumer Product Safety Commission, CPSC, GGT Enterprises, Llc; K2 Corporation; Jarden Corporation, Product Recall, Public Policy, Release, Rental Fleet, Rental shop, Ski Bindings, Ski Rentals, U.S. Consumer Product Safety Commission, Utah Leave a commentJozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
The public policy exception allows the release to be void when the recalled product was not pulled from the rental fleet.
This is a Utah ski rental case. The plaintiff rented skis from the defendant. While skiing, the plaintiff fell injuring her neck. She claimed she fell because the bindings prematurely released. The bindings were manufactured by K2 a subsidiary of the Jarden Corporation.
Prior to the plaintiff’s injury, K2 had notified the Consumer Product Safety Commission and issued a recall for the bindings the plaintiff was using. The recall was based due to a tendency for the bindings to unexpectedly release. The recall was issued by the CPSC and K2 had sent notice of the recall to retail and rental shops.
The plaintiff filed this suit in federal court against the defendant rental shop and the binding manufacture K2. The defendant rental shop filed this motion to dismiss because the plaintiff had signed a release when she rented the recalled skis and bindings.
Summary of the case
The defendant rental shop filed a motion for summary judgment because the plaintiff had signed a release upon renting the skis and bindings. The court first looked at releases and Utah’s law and found Utah allows people to “contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” Under Utah’s law, there are three exceptions that can void a release when:
(1) the release offends public policy,
(2) the release is for activities that fit within the public interest exception, or
(3) the release is unclear or ambiguous.
The court found that the second and third exceptions were not at issue here. The first issue, that releases must be compatible with public policy under Utah’s law. The court looked at the public policy exception to the rule slightly different in Utah than in most other states that allow a release to be voided due to public policy issues.
The court looked at the federal law that created the Consumer Products Safety Commission and created the requirement that products be recalled.
Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.”
The court then stated: “The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.” Finding this requirement puts an extreme burden on shops, retail or rental when dealing with recalled products.
The rental shop argued that the federal law cannot preempt state law, and state law allows releases. The court agreed, however, the court stated the law did not conflict or preempt the Utah law.
The court went on to say.
The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor allowing a party to insulate itself from harms caused to others arising from unlawful acts.
The said that if a release relieved the retailer of the duty to recall products, then the effect of the law would be nullified and would violate the value of the law. Public policy issues should encourage compliance with laws designed to make products safer not void them.
The court held the rental companies arguments were not valid and denied the motion for summary judgment.
So Now What?
If you get a recall notice, and you are in a retail store, rental shop, or distributor, remove the product from the shelves and/or the rental fleet. Period. The judge in his final sentence stated: “GGT’s preinjury release is unenforceable and invalid as a matter of public policy.” There is no leeway in that statement.
This may create disaster in a small rental shop. Most times the shop has one binding on all of its skis. It makes setting the bindings easier and makes training the employees on setting the bindings much easier also.
It can be a scary situation when you open an email and find you have no rental fleet. You should contact the company immediately and tell them that you are out of business effectively unless they respond and assist you in correcting the entire recalled product or replacing it.
This may be an issue you want to discuss with someone when you are negotiating bindings for your rental fleet.
Product recalls are not minor matter. Any product you have in your store that is subject to a recall is no longer available for sale until after the product has been fixed according to the manufacture’s requirements.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and
Outdoor Recreation Insurance, Risk Management, and Law
Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
Posted: November 26, 2012 Filed under: Legal Case, Skiing / Snow Boarding, Utah | Tags: Alta Ski Area, CPSC, GGT, Indemnity, Jarden, Jarden Corporation, K2, Park City Utah, Product liability, Product Recal, Salt Lake City, Ski binding, Utah Supreme Court Leave a commentTo Read an Analysis of this decision see: Utah Rental Release void because the product was subject to recall
Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
Laura Jozewicz, Plaintiff, vs. GGT Enterprises, Llc; K2 Corporation; and Jarden Corporation, Defendants.
Case No. 2:09-cv-00215-CW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
2010 U.S. Dist. LEXIS 53937
June 2, 2010, Decided
June 2, 2010, Filed
CORE TERMS: public policy concern, preinjury, binding, alert, distributor, rental, consumer products, consumer, retailer, citation omitted, ski, risks of injury, skiing, sports, skis, serious injury, manufacturer, recreational, invalidated, safety standards, public policy, unreasonable risk, manufacture, notice, hazard, release agreement, unenforceable, collectively, inventory, rented
COUNSEL: [*1] For Laura Jozewicz, an individual, Plaintiff: Jordan P. Kendell, Robert G. Gilchrist, LEAD ATTORNEYS, EISENBERG & GILCHRIST, SALT LAKE CITY, UT.
For K2, a Delaware corporation, Defendant: Cobie W. Spevak, Gainer M. Waldbillig, LEAD ATTORNEYS, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.
For Jarden, a Delaware corporation, Defendant: Gainer M. Waldbillig, LEAD ATTORNEY, Cobie W. Spevak, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.
For GGT Enterprises, a Utah corporation, Defendant: Adam Strachan, LEAD ATTORNEY, STRACHAN STRACHAN & SIMON, LITIGATION, PARK CITY, UT.
JUDGES: Clark Waddoups, United States District Judge.
OPINION BY: Clark Waddoups
OPINION
MEMORANDUM DECISION AND ORDER
INTRODUCTION
While skiing at Alta ski area, Plaintiff Laura Jozewicz (“Jozewicz”) fell and injured her neck. Jozewicz contends she fell because the binding on her skis unexpectedly released due to a product defect. Jozewicz rented the skis from Defendant GGT Enterprises, LLC (“GGT”). At the time of rental, a recall notice was in effect for the binding, but GGT did not remove the product from its rental inventory. Nevertheless, GGT seeks dismissal of Jozewicz’s negligence claim on the basis that she signed a release from liability at the time she rented [*2] the skis. For the reasons discussed below, the court denies GGT’s motion to dismiss.
FACTUAL BACKGROUND
On March 17, 2008, GGT rented skis to Jozewicz. On March 18, 2008, Jozewicz fell and injured her neck while skiing at Alta ski area. Jozewicz claims her fall occurred when the Marker MI Demo binding on her rental ski released unexpectedly. Jozewicz alleges that Defendants K2 Corporation and Jarden Corporation (collectively “K2/Jarden”) manufactured the ski binding. Prior to Jozewicz’s fall, K2/Jarden notified the United States Consumer Product Safety Commission (“Commission”) regarding the binding, and the Commission subsequently issued a recall alert on May 30, 2007, due to “Unexpected Release, Fall Hazard.” 1 The recall alert stated that “[s]ki shops with these bindings in their rental inventory should not rent this equipment to consumers until it has been upgraded.” 2 The recall further stated that “[s]kiers can unitentionally displace a lever at the rear of the binding,” which “[i]f it is fully displaced, . . . can result in the unexpected release of the binding and possibly cause the user to fall.” 3
1 Recall Alert (May 30, 2007) (Docket No. 29, Ex. A).
2 Id.
3 Id.
Prior to renting her [*3] skis from GGT, Jozewicz signed an “Equipment Rental and Liability Release Agreement,” which states in relevant part:
I understand that the binding system cannot guarantee the user’s safety. In downhill skiing, the binding systems will not release at all times or under all circumstances where release may prevent injury or death, nor is it possible to predict every situation in which it will release. . . .
I understand that the sports of skiing, snowboarding, skiboarding, snowshoeing and other sports (collectively “RECREATIONAL SNOW SPORTS”) involve inherent risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment. . . .
I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, owner, affiliates, agents, officers, directors and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or [*4] which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.
I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment. 4
GGT claims the release agreement bars Jozewicz’s negligence claim.
4 Equipment Rental & Liability Release Agreement (Docket No. 13, Ex. 2) (emphasis in original).
ANALYSIS
I. STANDARD FOR REVIEW
Defendant GGT brings this motion under Federal Rule of Civil Procedure 12(b)(6). When considering a 12(b)(6) motion, “a court must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the nonmoving party.” 5 The complaint must include “enough facts to state a claim to relief that is plausible on its face.” 6 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim [*5] for which relief may be granted.” 7 Consequently, a court does not look at evidence outside of a pleading to determine such motions. 8 If a court does rely “on material from outside the pleadings, the court converts the motion to dismiss into a motion for summary judgment.” 9 Because the court relies on material outside of the pleadings in this case, the court converts this motion into a motion for summary judgment.
5 Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (citation omitted).
6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
7 Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (citation omitted).
8 Dobsen v. Anderson, No. 08-7018, 2008 U.S. App. LEXIS 22820, at *8-9 (10th Cir. Nov. 4, 2008).
9 Id. at *9 (quotations and citation omitted).
II. PREINJURY RELEASES
A. Limitations on Preinjury Releases
Without question, individuals “may contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” 10 The Utah Supreme Court has recognized, however, “that preinjury releases are not unlimited in power and can be invalidated in certain circumstances,” including when (1) the release offends public policy, (2) the release is for activities [*6] that fit within the public interest exception, or (3) the release is unclear or ambiguous. 11 The second limitation is not at issue here because “preinjury releases for recreational activities,” such as skiing, “cannot be invalidated under the public interest exception.” 12 Likewise, the third limitation is not at issue because Jozewicz conceded during oral argument that the release is not unclear or ambiguous. Thus, the prevailing issue in this case is whether a public policy concern overwhelms the effect of the preinjury release that Jozewicz signed.
10 Pearce v. Utah Athletic Found., 2008 UT 13, P 14, 179 P.3d 760, 765 (citations omitted).
11 Id. (citations omitted).
12 Id. P 18.
B. Public Policy Considerations
Preinjury releases must be compatible with public policy to be enforceable. 13 Previously, the Utah Supreme Court has invalidated preinjury releases when they were contrary to public policy set forth in statutory provisions. The court has recognized that “[w]hen . . . the Legislature clearly articulates public policy, and the implications of that public policy are unmistakable, we have the duty to honor those expressions of policy in our rulings.” 14 Thus, in Hawkins v. Peart, the [*7] Utah Supreme Court held that public policy invalidated a preinjury release signed by a parent on behalf of a minor child. 15 The court looked to Utah statute and found that it “provides various checks on parental authority to ensure a child’s interests are protected.” 16 In particular, it found that when a child is injured, statutory law precludes a parent from settling a claim, unless the parent is appointed as conservator for the child. 17 Based on this clear legislative intent to protect a minor’s interest post injury, the court concluded that a preinjury release for a minor child likewise was unenforceable. 18
13 Id. P 15 (citing Rothstein v. Snowbird Corp., 2007 UT 96, P 7, 175 P.3d 560).
14 Rothstein v. Snowbird Corp., 2007 UT 96, P 20, 175 P.3d 560.
15 Hawkins v. Peart, 2001 UT 94, PP 12-13, 37 P.3d 1062.
16 Id. P 11.
17 Id. (citing Utah Code Ann. § 75-5-404 (1993)).
18 Id. PP 12-13.
As applicable to this case, Congress has expressed its concern about product defects that pose a significant risk of injury or death. In an effort to protect the public from such defects, it enacted the Consumer Product Safety Act (the “Act”). The stated purpose of the Act is:
(1) to protect the public against unreasonable [*8] risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries. 19
Through this legislation, Congress has stated its intent to create laws that protect the public from unreasonable risk of harm from defective products and to provide a uniform regulatory scheme to promote product safety.
19 15 U.S.C. § 2051(b) (2010).
Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.” 20 Recall alerts arising from such notices are specifically designed to prevent serious [*9] injuries. Under 15 U.S.C. § 2068, manufacturers and distributors are charged with honoring the recall alerts issued by the Commission. The law in effect at the time of Jozewicz’s accident stated:
It shall be unlawful for any person to —
(1) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which is not in conformity with an applicable consumer product safety standard under this chapter;
(2) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which has been declared a banned hazardous product by a rule under this chapter. 21
20 Id. § 2064(b).
21 Id. § 2068(a)(1)-(2) (2006). This Section was amended on August 14, 2008, after Jozewicz’s injury occurred. Section 2068(a) now prohibits the sale, manufacture for sale, distribution, or importation of any product (1) “that is not in conformity with an applicable consumer product safety rule,” (2) that is subject to a voluntary corrective action, (3) that is an imminent hazard and subject to a Commission’s order, or (4) that is a banned hazardous substance. Id. § 2068(a)(1)-(2) (2010).
Congress enacted the statute to ensure [*10] safe products are provided to the public and to limit the risk of injury. Once a manufacturer, distributor, or retailer reports a defect to the Commission and a recall alert is published, the alert would have no effect if other retailers were not required to take action to correct the defect or remove the product from their inventory. The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.
Jozewicz argues that Congress’s public policy concern to prevent unreasonable risk of serious injury or death to the public meets the public policy standard set forth by the Utah Supreme Court, and therefore invalidates her release of GGT’s negligence. GGT contends, however, that Congress did not intend for the Consumer Product Safety Act to preempt state law, and no private cause of action exists under 15 U.S.C. § 2064(b). While this is true, this does not nullify the stated public policy concerns that override the right of parties to contract away tort liability. The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor [*11] allowing a party to insulate itself from harms caused to others arising from unlawful acts. Moreover, a decision that public policy causes a preinjury release to be invalid in this case does not cause GGT to be held liable under the Act, nor does it preempt state law. It merely recognizes Congress’s concern to minimize unreasonable risk to the public of serious injury or death. Such a concern is particularly relevant when a latent defect exists of which distributors and retailers are or should be aware, but not a consumer.
The implication of allowing distributors and retailers to contract away liability for noncompliance with established safety standards would increase the risk of injury and would be contrary to Congress’s express public policy concerns. Furthermore, validating the release of liability for noncompliance with Federal law would effectively reduce or eliminate the responsibility that distributors and retailers have to make sure the products they sell or rent are safe. Public policy should encourage compliance with safety laws, not disregard for such laws. Due to a strong public interest in ensuring adherence to recall alerts, the court concludes that GGT’s release is unenforceable [*12] as a matter of public policy.
CONCLUSION
GGT’s preinjury release is unenforceable and invalid as a matter of public policy. For this reason, GGT’s motion is DENIED. 22
22 Docket No. 12.
DATED this 2nd day of June, 2010.
BY THE COURT:
/s/ Clark Waddoups
Clark Waddoups
United States District Judge
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Colorado Ski Mountaineering Cup Race Schedule Announced
Posted: November 23, 2012 Filed under: Racing, Ski Area, Skiing / Snow Boarding | Tags: ArapahoeBasin, CAMP USA, Colorado, Cosmic, Cosmic Cup, la sportiva, Ski Mountaineering, Ski Resort, Ski Trab, skiing, Sports, winter sports, Wolf Creek Leave a comment
Want to be exhausted just watching a race, these men and women can do it.
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12/04/2012 |
COSMIC |
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12/08/2012 |
COSMIC |
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12/14/2012 |
Chapman Hill, Durango CO |
COSMIC |
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Wolf Creek Ski Mountaineering Race presented by Pine Needle Mountaineering |
12/15/2012 |
COSMIC |
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12/18/2012 |
COSMIC |
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01/12/2013 |
COSMIC |
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01/13/2013 |
COSMIC |
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01/26/2013 |
COSMIC Race |
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Race The Divide at Monarch Mt. Presented by Salida Mt. Sports |
01/27/2013 |
COSMIC |
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02/04/2013 |
COSMIC Race |
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02/09/2013 |
COSMIC Race |
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03/02/2013 |
COSMIC Race |
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03/23/2013 |
COSMIC Race |
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04/06/2013 |
COSMIC Race |
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04/20/2013 |
COSMIC |
To see the race schedule go here. Or go to COSMIC Cuplearn more about the races and ski mountaineering.
Get out and watch an amazing sport with amazing atheletes!
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Truer words were never spoken!
Posted: November 23, 2012 Filed under: Release (pre-injury contract not to sue) | Tags: AdventureTravel, Attorney at law, Frazz, Jef Mallett, Jim Moss, Rock climbing, Ropes course Leave a comment
Thanks Jef Mallett
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You are not supposed to know about this….25% Discount on Sierra Designs Stuff
Posted: November 22, 2012 Filed under: Uncategorized | Tags: 25%, Discount, Holiday, Sierra Designs Leave a comment
Here is the Link
Happy Thanksgiving
Posted: November 22, 2012 Filed under: Uncategorized Leave a commentIf you’re not with your friends and family, I hope you are at least having fun!
Outside!
Life you either live it or the Warranty Expires
Posted: November 21, 2012 Filed under: Uncategorized | Tags: Don't let the Warranty Expire, Life Leave a comment
Thanks Mr. Mallett http://rec-law.us/PM8ZTN
Rocky Mountain Field Institute is the recipient of TWO Forest Service Chief Awards
Posted: November 20, 2012 Filed under: Uncategorized | Tags: Crestone Needle, Crestone Peak, Forest Service, Humboldt Peak, National Forest Foundation, RMFI, Rocky Mountain Field Institute, US Forest Service, USFS Leave a commentCongratulations RMFI!
Not one, but TWO Forest Service Chief Awards
RMFI is the recipient of TWO US Forest Service Chief Awards this year, the highest award recognition within the US Forest Service. WOW! One is in the Promoting Recreation category recognizing our decades-long effort to create a sustainable recreation framework on 14ers in the Sangre Cristo Mountain Range, including Crestone Needle, Crestone Peak, Humboldt Peak, and Blanca Peak.
The second category is for “Meeting America’s Needs” and recognizes the Rocky Mountain Watershed Protection Partnership and its work restoring the Hayman Burn. This partnership includes myriad partners including Forest Service, National Forest Foundation, Coalition for the Upper South Platte, RMFI, Denver Water, Aurora Water, Vail Associates, Mile High Youth Corps, and others.
RMFI executive director Rebecca Jewett will be traveling to Washington DC in December to accept the awards and promote the importance of land conservation and volunteer stewardship.
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It is that time of year, release stops lawsuit against ski club
Posted: November 19, 2012 Filed under: Illinois, Skiing / Snow Boarding | Tags: AdventureTravel, Attorney at law, Chicago Metropolitan Ski Council, Indianhead Mountain, Jim Moss, RecreationLaw, Release, Ski Racing, skiing Leave a commentMasciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
Illinois’s decision holds that the release in question covered the issue complained of by the plaintiff who caused his injuries.
The plaintiff in this case was a member of the Chicago Metropolitan Ski Council, a ski club. The plaintiff entered a race put on by the defendant ski council at Indianhead Mountain, Michigan. To enter the race the plaintiff had to sign a release.
While racing the plaintiff hit a compression area in the race course which caused him to be thrown into telephone poles that marked the finish line. The plaintiff’s injuries were never specified in the decision.
The plaintiff alleged the unsafe conditions of the race course were not contemplated by the release, and the parties were acting under a mutual mistake of fact.
Summary of the case
A mutual mistake of fact is usually a way to void a contract. Remember a contract, which a release is, requires a meeting of the minds. Normally, with a release, you write the release so the meeting of the minds is agreed to when the guest signs the agreement.
If the parties do not agree on the specific issues of a contract, the reasons for a contract, then a contract is void. An example would be party A wants to sell his beat up second car. Party A tells party B that his car is for sale. Party B has never seen the second car and assumes party A is selling his good car; the only one party B, thinks party A, owns.
The contract between party A and party B would be void because of mistake of fact. Party A and Party B never had a meeting of the minds on what was being bought/sold so there was no contract.
Under Illinois’s law, like in most states, releases are disfavored, but upheld if there is no fraud, willful and wanton conduct [on the part of the defendant] or legislation prohibiting releases. If those requirements are met the court next looks at the position of the parties to make sure there is no disparity in the bargaining power between the parties. Here because skiing and ski racing is recreational and the plaintiff did not have to race, there was no disparity.
The next requirement is different.
…the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause.
The risk which caused the injury must not be set out specifically in the release; the release must just show that the risk was contemplated by the parties to the release. The court found the release covered the problems the plaintiff claimed injured him.
So Now What?
Simply put make sure your release has a broad description of the risk intended to be covered by the release. First start with the life-changing events, death, quadriplegia, and work your way done to those things that although not of high severity do occur with high frequency.
If you do keep accident reports (see Why accident reports can come back to haunt you.) go through the reports to identify the risks that should be in your release. Always include the loss of property. Dropped phones while riding a ski lift and lost sunglasses whitewater rafting are probably the number one issue that irritates guests. Cover those issues, other minor issues and major problems in your release.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Masciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
Posted: November 19, 2012 Filed under: Illinois, Legal Case, Racing, Skiing / Snow Boarding | Tags: Chicago Metropolitan Ski Council, Indianhead Mountain, Ski Club, Ski Council, Ski Racing, skiing Leave a commentMasciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
An analysis of this case can be found at It is that time of year, release stops lawsuit against ski club
David R. Masciola, Plaintiff-Appellant, v. Chicago Metropolitan Ski Council, an Illinois not-for-profit corporation, Defendant-Appellee.
No. 1-91-3909
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603
December 29, 1993, Decided
SUBSEQUENT HISTORY: [***1] Released for Publication March 9, 1994. As Corrected August 2, 1994.
PRIOR HISTORY: APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PADDY H. McNAMARA, JUDGE PRESIDING.
DISPOSITION: AFFIRMED.
COUNSEL: John Thomas Moran, Jr., of Chicago, for appellant.
Pretzel & Stouffer, Chartered, of Chicago (Edward H. Nielsen, Robert Marc Chemers, and Ann S. Johnson, of counsel), for appellee.
JUDGES: RIZZI, TULLY, CERDA
OPINION BY: RIZZI
OPINION
[*314] [**1068] JUSTICE RIZZI delivered the opinion of the court:
Plaintiff, David R. Masciola, filed a complaint against defendant, the Chicago Metropolitan Ski Council (Ski Council) and others. Plaintiff sought damages for personal injuries allegedly sustained by him while he was participating in a ski race sponsored by defendant. Counts I and II of the complaint alleged negligence and willful and wanton conduct, respectively. The trial court dismissed [**1069] count II of the complaint and granted summary judgment to defendant on count I. Plaintiff appeals the trial court’s award of summary judgment. We affirm.
Plaintiff alleges that trial court’s grant of summary judgment was erroneous (1) with respect to both counts of the complaint, on the basis of its finding that an exculpatory clause was enforceable and barred to the complaint, because the unsafe conditions of the racecourse [***2] exceeded the scope of the contemplated risks encompassed by the exculpatory clause which demonstrates that the parties were acting under a mutual mistake of material fact as to the safety of the racecourse; and (2) with respect to count II of the complaint because exculpatory clauses are void and against public policy when applied to willful and wanton conduct.
On December 21, 1985, plaintiff participated in a ski race sponsored by defendant at the ski resort of Indianhead Mountain in Wakefield, Gogebic County, Michigan. As a sponsor of the race, defendant required each participant to sign a “waiver of liability” prior to participating in the race. Plaintiff signed the waiver. The waiver form provided as follows:
The undersigned hereby acknowledges that ski racing is a dangerous sport which can lead to serious injury, or even death. The undersigned hereby understands and agrees to personally assume any and all of the liability and risks of alpine racing.
Further, the undersigned hereby agrees to hold harmless the CHICAGO METROPOLITAN SKI COUNCIL, its officers and the Senior Alpine Racing Committee from any responsibility or liability for any and all personal injuries or death which [***3] may occur during the 1985-86 CMSC Racing Series.
On March 16, 1988, plaintiff filed a 10-count complaint against Ski Council and other defendants who are no longer a part of this action, for damages for personal injuries sustained while participating in the ski race sponsored by defendant. Plaintiff alleged that his injuries are the result of a fall from a compression area in the ski racecourse which caused him to be thrown into the poles marking the finish line. Counts I and II of the complaint alleged negligence and willful and wanton conduct respectively, on the part of defendant.
[*315] Defendant filed a motion to dismiss count II of plaintiff’s complaint on the basis that he failed to comply with section 2-604.1 of the Code of Civil Procedure (Code). Ill Rev. Stat. 1987, ch. 110, par. 2-604.1. On May 19, 1988, the court entered an order granting defendant’s motion to dismiss count II without prejudice. Count II was dismissed on the ground that willful and wanton misconduct constitutes negligence for purposes of claiming punitive damages and a hearing was necessary under section 2-604.1 and absent a hearing, dismissal was required.
Defendant then filed a motion for summary judgment [***4] with respect to count I. Plaintiff in his complaint alleged that defendant owed him a duty of reasonable care in supervising, inspecting, setting up and maintaining the racecourse and its attendant markers, gates and poles. In its motion, defendant argued, and the trial court agreed, that the release form signed by plaintiff barred plaintiff’s action. The motion was granted pursuant to an order entered on April 25, 1991. Plaintiff now appeals the grant of summary judgment.
First, plaintiff contends that trial court’s grant of summary judgment was erroneous (1) with respect to both counts of the complaint against defendant on the basis of its finding that an exculpatory clause was enforceable and therefore barred to the complaint, because the unsafe conditions of the racecourse exceeded the scope of the contemplated risks encompassed by the exculpatory clause which demonstrates that the parties were acting under a mutual mistake of material fact as to the implicit material term of their agreement, which was that the racecourse was presumptively safe; and (2) that the judgment was erroneous with respect to count II of the complaint alleging willful and wanton misconduct on the part [***5] of defendant because exculpatory clauses are void and against public policy when applied to willful and wanton conduct.
In addition to arguing that the trial court erred in granting defendant summary judgment [**1070] as to count I of the complaint, plaintiff now argues for the first time that the grant of summary judgment as to count II of his complaint was improper in that it alleged willful and wanton misconduct. The record shows that pursuant to an order entered on May 19, 1988, count II of plaintiff’s complaint alleging willful and wanton misconduct was dismissed for failure to comply with section 2-604.1 of the Code.
[HN1] Section 2-604.1 of the Code provides that no complaint based upon bodily injury shall contain a prayer for punitive damages. The section further provides that a plaintiff may move for a pretrial hearing thereby seeking leave to amend the complaint to include a prayer for punitive damages within 30 days after the close of discovery. Ill Rev. Stat. 1987, ch. 110, par. 2-604.1.
[*316] In the present case, the order dismissing count II of plaintiff’s complaint was without prejudice, therefore, plaintiff could have sought leave to amend the complaint to include the prayer for punitive [***6] damages. Plaintiff, however, failed to do so. At no point during the trial court proceeding did plaintiff argue that a grant of summary judgment would be improper in light of the complaint alleging willful and wanton misconduct.
Furthermore, in support of his allegation that the trial court’s grant of summary judgment was erroneous with respect to count II, plaintiff now asks us to review the deposition testimony of himself and Ardwell Kidwell as well as the International Ski Competition Rules. Each of these deposition transcripts are attached to plaintiff’s motion for reconsideration of the summary judgment order, but neither of the transcripts was before the trial court when it initially ruled on the summary judgment. At the hearing on the motion for reconsideration of summary judgment, the trial court refused to consider these items on the basis that they were not properly before the court.
[HN2] The scope of an appellate court’s review of a grant of summary judgment is limited to the matters considered by the trial court in ruling on the motion for summary judgment. Certified Mechanical Contractors, Inc. v. Wight & Co., Inc. (1987), 162 Ill. App. 3d 391, 397, 515 N.E.2d 1047, 1051. [***7] Upon review of a summary judgment ruling, an appellate court may only refer to the record as it existed at the time the trial court ruled, outline the arguments made at that time and explain why the trial court erred in granting summary judgment. Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co. (1992), 226 Ill. App. 3d 507, 509-10, 589 N.E.2d 1034, 1036.
In the present case, the allegations in count II were not before the trial court at the time of its ruling upon defendant’s motion for summary judgment because count II had been dismissed and thus they may not be considered by this court.
We will, however, address plaintiff’s allegation that the trial court’s grant of summary judgment was erroneous with respect to count I of the complaint. Plaintiff argues that the exculpatory clause was not enforceable because the existence of compression bumps at the end of a racecourse and the use of telephone poles as a finish line marker are not within the scope of possible dangers accompanying an alpine ski race. Plaintiff further contends that defendant was not entitled to summary judgment because the parties were acting under a mutual [***8] mistake of material fact as to whether the racecourse was “safe” because the definition of “safe” arguably did not include compression bumps on the course and telephone poles as finish line markers.
[*317] [HN3] Although exculpatory agreements are not favored and will be strictly construed against the benefitting party ( Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 395, 493 N.E.2d 1022, 1029), parties may allocate the risk of negligence as they see fit and exculpatory clauses are not violative of public policy as a matter of law. Reuben H. Donnelley Corp. v. Krasny Supply Co., Inc. (1991), 227 Ill. App. 3d 414, 419, 592 N.E.2d 8, 11.
Under certain circumstances, exculpatory clauses may bar a plaintiff’s negligence claim. Harris v. Walker (1988), 119 Ill. 2d 542, 548, 519 [**1071] N.E.2d 917, 919. [HN4] Exculpatory clauses will be upheld in the absence of fraud; willful and wanton conduct; legislation to the contrary; where the exculpatory clause is not contrary to the settled public policy of this State; where there is no substantial disparity in the [***9] bargaining position of the parties; and where there is nothing in the social relationship of the parties which militates against upholding the agreement. Harris, 119 Ill. 2d at 548, 519 N.E.2d at 919; Reuben H. Donnelley Corp., 227 Ill. App. 3d at 419, 592 N.E.2d at 11; Garrison v. Combined Fitness Centre, Ltd. (1990), 201 Ill. App. 3d 581, 584, 559 N.E.2d 187, 189-90.
Absent any of the above factors, [HN5] the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause. See Larsen v. Vic Tanny, International (1984), 130 Ill. App. 3d 574, 577, 474 N.E.2d 729, 731; see also Simpson v. Byron Dragway, Inc. (1991), 210 Ill. App. 3d 639, 647, 569 N.E.2d 579, 584. The precise occurrence which results in injury need not have been contemplated by the parties at the time the agreement was entered [***10] into. Garrison, 201 Ill. App. 3d at 585, 559 N.E.2d at 190.
In the present case, plaintiff’s injury is a type that was intended to fall in the scope of the exculpatory clause thereby entitling defendant to summary judgment. The exculpatory provision provides as follows:
The undersigned hereby acknowledges that ski racing is a dangerous sport which can lead to serious injury, or even death. The undersigned hereby understands and agrees to personally assume any and all of the liability and risks of alpine racing.
Further, the undersigned hereby agrees to hold harmless [defendants] * * * from any responsibility or liability for any and all personal injuries or death which may occur during the 1985-86 CMSC Racing Series. (Emphasis added.)
While the parties may not have contemplated that plaintiff would be injured by skiing over a compression area in the ski racecourse, they [*318] could and did contemplate a broad range of accidents which occur during skiing, including problems with the surface of the ski racecourse.
The present case is analogous to Schlessman v. Henson (1980), 83 Ill. 2d 82, 86, 413 N.E.2d 1252, 1254, [***11] wherein this court held that a problem with an automobile race track surface was the type of risk which the exculpatory agreement was intended to cover. Although the parties may not have contemplated that a section of the race track would collapse during the race, they did contemplate a “broad range of accidents which occur in auto racing.” See also Garrison v. Combined Fitness Centre (1990), 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 190 (exculpatory clause contained in health club membership agreement relieved club from liability for injury caused by allegedly defective equipment, where clause stated that each member bore the “sole risk” of injury that might result from use of weights, equipment or other apparatus provided); Neumann v. Gloria Marshall Figure Salon (1986), 149 Ill. App. 3d 824, 827, 500 N.E.2d 1011, 1014 (exculpatory clause which expressly covered all risks of injury “while using any equipment” at the salon was enforceable because an injury to plaintiff resulting from the use of the machines was encompassed in the release).
Cases in which this court has found an exculpatory [***12] clause to be insufficient to release a defendant from liability for personal injuries to plaintiff are distinguishable from the present case. One line of cases wherein an exculpatory clause has been found ineffective have involved injuries or fatalities which clearly do not ordinarily accompany the activity which is the subject of the release. See Simpson v. Byron Dragway, Inc. (1991), 210 Ill. App. 3d 639, 649-50, 569 N.E.2d 579, 585-86 (a question of fact existed as to whether or not striking a deer while operating a race car on a drag strip was the type of risk which ordinarily accompanies the sport of racing); Larsen v. Vic Tanny, International (1984), 130 Ill. App. 3d 574, 578, 474 [**1072] N.E.2d 729, 732 (exposure to noxious fumes which injured plaintiff’s respiratory system was not a foreseeable risk related to the use of a health club). In the present case, however, the injuries to plaintiff resulting from a fall from a compression area in the ski course is a risk inherent in ski racing and as such falls within the scope of the exculpatory clause.
Another line of cases has held that the language of [***13] an exculpatory clause did not shield a defendant from liability that the language of the exculpatory clause was ambiguous with respect to which activities were covered. See Macek v. Schooner’s, Inc. (1991), 224 Ill. App. 3d 103, 106, 586 N.E.2d 442, 444-45 (genuine [*319] issue of material fact precluded summary judgment for sponsors of arm wrestling contest in personal injury action brought against it by a participant who was injured in the contest, existed as to whether the intent of the clause was to release the promoter of liability when injury resulted from the participant’s physical condition, or when injury resulted from the promoter’s negligence); Calarco v. YMCA of Greater Metropolitan Chicago (1986), 149 Ill. App. 3d 1037, 1043, 501 N.E.2d 268, 272 (statement that “participation in any of the activities of the YMCA” was ambiguous in that it could be read to mean that the exculpatory clause only pertained to participating in activities at the YMCA but not to liability from the use of equipment at the YMCA). The language of the exculpatory clause at issue in the present case is [***14] explicit and unambiguous and is thus sufficient as a matter of law to relieve defendant from liability.
Accordingly, the trial court’s grant of summary judgment to defendant was proper as there was no genuine issue of material fact as to whether the exculpatory agreement encompassed plaintiff’s injuries.
For the above reasons, we affirm the trial court’s grant of summary judgment.
AFFIRMED.
TULLY, P.J. and CERDA, J., concur.
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Kachina Peaks Avalanche Center Fundraiser Orpheum Theater November 16
Posted: November 16, 2012 Filed under: Avalanche | Tags: #AZ, avalanche, Avlanche Kachina Peaks Avlanche Center, Derik, Flagstaff, Flagstaff Arizona, Kachina, Orpheum Theater, Teton Gravity Research, United States Leave a comment
The Mission Of Kachina Peaks Avalanche Center, Inc. Is To Provide Support For And To Engage In Avalanche Education, Safety Training And Information Exchange Specific To The San Francisco Peaks In Northern Arizona.
Dear KPAC Friends,
Hope you are all well and enjoying a lovely fall. It’s almost time for our 7th annual fundraiser at the Orpheum Theater, 15 West Aspen St., Friday November 16. Two showings of the new Teton Gravity Research movie ‘The Dream Factory’, 7 and 9 p.m. This is an amazing movie event and we are fortunate to host it here in Flagstaff!
Tickets are $10 at the door. Doors open 30 minutes before each showing. Get there early to take advantage of our gear raffle and silent auction.
KPAC is offering a free ‘Introduction to Avalanches’ seminar December 12th, 6 pm, at the Leaf Auditorium, Coconino County Sheriff’s Office, 911 Sawmill Rd (behind New Frontiers off Butler). Check the website, www.kachinapeaks.org, for our other offerings: ‘Introduction to Avalanche’ seminars in January and February, a free Field Session on the Peaks and Level I Avalanche courses, available for college credit through NAU Outdoors.
We are a local 501c3 non-profit and depend upon your help for our continued success. This event is our main source of funding and we hope to see you there.
Thank you very much. Please contact me with questions, comments, concerns…we’re always interested in new help and ideas. Snow is in the air…safe travels!
Sincerely,
Derik Spice
Kachina Peaks Avalanche Center www.kachinapeaks.org
derik.spice
Updated Opening Days at Colorado ski Resorts
Posted: November 16, 2012 Filed under: Skiing / Snow Boarding | Tags: ArapahoeBasin, Aspen Highlands, Colorado, Copper Mountain, Crested Butte, Monarch Mountain, Ski Cooper, Ski Resort Leave a commentRecent Snow has everyone amped!
Mount Crested Butte located at 38.884° -106.944° in Crested Butte, Colorado, United States. (Photo credit: Wikipedia)
Arapahoe Basin: Open
Aspen Highlands: December 8, 2012
Aspen Mountain: November 22, 2012
Buttermilk: December 15, 2012
Copper Mountain: Open
Crested Butte: November 21, 2012
Eldora: November 16, 2012
Howelsen: December 1, 2012
Loveland: Open
Monarch Mountain: November 21, 2012
Powderhorn: December 13, 2012
Purgatory: November 23, 2012
Silverton Mountain: December 1, 2012
Logo of Ski Cooper (Photo credit: Wikipedia)
Ski Cooper: November 22
Ski Granby Ranch: December 12, 2012
Snowmass: November 22, 2012
Steamboat: November 21, 2012
Sunlight: December 7, 2012
Telluride: November 22, 2012
Winter Park: November 14, 2012
All the lifts at aspen are chairlifts. This one is going up 11,800 feet on Aspen Highlands Mountain, highest ski area at Aspen. (Photo credit: Wikipedia)
Wolf Creek: TBD, 2012
Was those skis and boards and get ready to go!
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2013 Mugs Stump Award
Posted: November 16, 2012 Filed under: Climbing, Mountaineering | Tags: Mugs Stump, Mugs Stump Award Leave a commentDeadline for applications for the Mugs Stump Award is December 14, 2012
This award is to further great climbs in the honor and memory of Mugs Stump. The award is giving to small climbing
teams with fast and light alpine objectives. Special attention is giving to applicants and teams that leaving no trace of their passage. For more information go to Mugs Stump Award. Past winners and more information on the award can be found here.
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2012 National Outdoor Book Award Winners
Posted: November 15, 2012 Filed under: Uncategorized | Tags: Ballantine Books, Beacon Press, Camp Muir, Idaho State University, ISU, Jim Davidson, Mount Rainier, National Outdoor Book Awards, NOBA, Thomas Dale, University of Nebraska Press Leave a commentGreat Reading!
Outdoor Literature |
![clip_image001[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0014.jpg "clip_image001[4]")
Winner. Almost Somewhere: Twenty-Eight Days on the John Muir Trail. By Suzanne Roberts. University of Nebraska Press. ISBN 9780803240124.
In the summer of 1993, author Suzanne Roberts and two other women set out on a month-long backpack trip in California’s Sierra Mountains. Almost Somewhere is Robert’s introspective and no-holds-barred account of that journey and the interactions between the three women. What emerges is a revealing and insightful coming-of-age portrait of women of the post baby boom generation. Roberts obsesses with her weight, competes openly with other women for men, and grapples with conflicted views of sex and relationships. One of the other women struggles with bulimia. This is life in an outdoor setting from a feminine perspective: anxiety over strange men met along the way and the challenges of long days on the trail—can Robert’s weakening knees and the health of her bulimic friend hold up to the end? The dialog, the imagery, and the story are so well done and so absorbing that men and women of all generations will find it a satisfying and fulfilling literary treat.
![clip_image002[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0024.jpg "clip_image002[4]")
Winner. The Ledge: An Adventure Story of Friendship and Survival on Mount Rainier. By Jim Davidson and Kevin Vaughan. Ballantine Books.
ISBN 9780345523198.
The Ledge is story telling at its finest. Jim Davidson is descending from a climb of Mount Rainier when he plunges into a crevasse, pulling his partner in with him. Davidson survives the fall, but unknown to him at the time, his pack has stopped him, wedging between two walls of ice. Below him is an abyss. Shortly after he stops, a small avalanche of snow covers him completely. Then his partner hurtles down and lands on top. Somehow Davidson must dig himself out of the snow, provide aid to his critically injured partner, and plan a way to climb out—all the while, delicately balanced on his pack. His is a struggle that involves all of his faculties and which alternates between hope, despair, and terror. From start to finish, this is a story that will hold you spellbound.
![clip_image003[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0034.jpg "clip_image003[4]")
Honorable Mention. Before They’re Gone: A Family’s Year-Long Quest to Explore America’s Most Endangered National Parks. By Michael Lanza. Beacon Press. ISBN 9780807001196.
Michael Lanza is a skilled wordsmith and his finely fashioned handiwork is on full display in Before They’re Gone. Lanza takes his wife and two young children to some of the country’s most famous National Parks. They hike, sea kayak, climb, canoe and cross-country ski. It’s a heartwarming narrative of a family and their explorations of wild places. It’s also a cautionary story of what might happen, and is happening, to those spectacular places that they visit as the earth continues to warm.
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Natural History Literature |
![clip_image005[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0054.jpg "clip_image005[4]")
Winner. The Forest Unseen: A Year’s Watch in Nature. By David George Haskell. Viking. ISBN 9780670023370.
One square meter. That’s what Forest Unseen is about: one square meter of a Tennessee forest. But in George Haskell’s able hands, that’s all that is needed to reveal a world of wonder and magic. An engaging and poetic writer, Haskell takes us on a journey through the seasons, documenting the changes in an old growth forest and describing the many ecological processes occurring there. Through Haskell’s words, the forest comes alive and seeps gently and unobtrusively into our conscience. Haskell has done it masterfully—writing with a quiet humility and a deceptive simplicity that mirrors the life in his small patch of the natural world.
![clip_image004[21]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image00421.gif "clip_image004[21]"){kind=small}
History/Biography |
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![clip_image006[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0064.jpg "clip_image006[4]")
Winner. Buried in the Sky: The Extraordinary Story of the Sherpa Climbers on K2’s Deadliest Day. By Peter Zuckerman and Amanda Padoan. W. W. Norton. ISBN 9780393079883.
Buried in the Sky is a significant departure for mountaineer literature. In a reversal of perspective, the book chronicles the story of climbing K2 from the Sherpas’ point of view. What happened on K2 in 2008 shocked the mountaineering world. Eleven climbers died and three others were seriously injured. It’s through the eyes of Sherpas that Peter Zuckerman and Amanda Padoan tell the story of those fateful hours on the mountain. Impeccably researched, the two authors travelled to Nepal and Pakistan where they conducted interviews with Sherpa climbers, their families, relatives and friends. They deal with the worries of Sherpa wives and the yearly tragedies weathered by their close-knit families. It’s a book that finally humanizes the unsung heroes of the mountaineering world and their hopes and dreams for a better life.
![clip_image007[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0074.jpg "clip_image007[4]")
Winner. Anything Worth Doing: A True Story of Friendship and Tragedy on the Last of the West’s Great Rivers. By Jo Deurbrouck. Sundog Book Publishing. ISBN 9780985257804.
Jo Deurbrouck brings to life the story of two men who launch a small wooden dory in the roiling waters of Idaho’s Salmon River. Their plan was to float all night and all the next day in an attempt to set a 24-hour speed record. In this highly creative and exceptionally well written account, Deurbrouck traces the lives of these two men: one an aging, bear of a man, a Viet Nam era veteran and sometimes recluse river guide whose past includes boxing and ballet dancing; and the other a fit, young man, a rising star among river runners, full of ideas and ambitions. They put on the river in peak flood and are flung downstream, maneuvering their small boat through churning rapids, dodging boiling holes, and fending off massive logs caught in the current with them. You’ll find yourself glued to the pages as Deurbrouch deftly steers the narrative to a building climax. This is an impressive piece of work and a welcomed addition to river literature and lore.
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Design and Artistic Merit |
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Winner. Design and Artistic Merit. Winner. Beneath the Cold Seas: The Underwater Wilderness of the Pacific Northwest. By David Hall. University of Washington Press and Greystone Books. ISBN 978022295991160.
This book is a work of art from every possible angle—from the exquisite photographs, to the book’s design, to its flawless printing and production process. There’s no other way to describe it: David Hall has created a masterpiece. It’s not something that came easy. His underwater photographic technique had been painstakingly developed and refined over years of work. And what a difficult environment in which to work: diving in bitter cold waters, working in a neutrally buoyant state without a tripod, not having the ability to use telephoto lenses (because of the turbidity of the water), and dealing with a limited amount of time (due to air and nitrogen concerns). Hall has everything right in this book. There is nothing extraneous, and nothing missing. This is a complete and moving immersion in the breathtaking underwater world of the Pacific Northwest.
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Children’s Category |
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![clip_image009[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0094.jpg "clip_image009[4]")
Winner. For the Birds: The Life of Roger Tory Peterson. By Peggy Thomas. Illustrated by Laura Jacques. Calkins Creek. ISBN 9781590787649.
For the Birds is a delightful biography for children from 7 to 11 years of age. Who is it about?
Why . . . none other than “Professor Nuts Peterson.” Professor Nuts, who might carry a snake in his pocket or a bird’s egg in his hat, is the American artist and passionate bird lover who created the Peterson Field Guides. His guides weren’t designed for scientists and specialists. Rather, they were for everyone, making it easier for adults—and kids of all stripes and ages—to identifying birds, animals and plants. Author Peggy Thomas quite handedly describes Peterson’s life from his childhood, to his success as an illustrator, and to his work as a conservationist. Fitting winningly with the text are bright and cheery illustrations by Laura Jacques.
![clip_image004[24]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image00424.gif "clip_image004[24]"){kind=small}
Nature and the Environment |
![clip_image010[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0104.jpg "clip_image010[4]")
Winner. The Melting Edge: Alaska at the Frontier of Climate Change. By Michael Collier. Alaska Geographic Association. ISBN 9780982576519.
There is no better place in the United States to observe the effects of climate change than Alaska: Glaciers are retreating, permafrost is thawing, and coastal areas are eroding. While much has been written about the subject, author Michael Collier takes things a step further and shows us the consequences of global warming by the use of colorful and instructive photographs. It’s a complex subject, but Collier provides concrete examples and boils it down to the essentials. In the process, he takes us to the far corners of Alaska to learn from the scientists studying the effects of a changing climate and from the people living it day to day.
![clip_image011[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0114.jpg "clip_image011[4]")
Honorable Mention. Spring Wildflowers of the Northeast: A Natural History. By Carol Gracie. Princeton University Press. ISBN 9780691144665.
Spring Wildflowers is as elegant as the flowers found within its pages. That’s due to the multi-talented Carol Gracie who is a writer, a botanist and a photographer. In the book, she describes a host of Northeastern plants, but she doesn’t stop at the usual botanical boundaries. Unique among plant guides, she goes on to include what species pollinate each plant. She further firmly places each plant into the context of its habitat, what animals consume it, how it has been used as a medicinal plant. Gracie’s book is a noteworthy achievement and quite effectively broadens our thinking about plants to include their many-sided relationship with all aspects of the ecosystem.
![clip_image012[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0124.jpg "clip_image012[4]")
Honorable Mention. Polar Bears: A Complete Guide to Their Biology and Behavior. By Andrew E. Derocher. Photographs by Wayne Lynch. The John Hopkins University Press. ISBN 9781421403052.
There’s a certain attraction to polar bears, and Andrew Derocher’s book adds to that attraction by deepening our understanding of these animals and the impact that human activity is having upon them. Derocher lays out for us a comprehensive review of work done on these great mammals including their biology, ecology and behavior. The text is supplemented by stunning photographs by Wayne Lynch who has spent decades following the bears. It all works excellently together—photos and text—and the reader comes away with a renewed appreciation for one of nature’s most charismatic carnivores.
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Instructional Category |
![clip_image013[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0134.jpg "clip_image013[4]")
Winner. AMC Guide to Outdoor Digital Photography: Creating Great Nature and Adventure Photos. By Jerry Monkman. Appalachian Mountain Club. ISBN 9781934028506.
If you’ve been prospecting for just the right book on outdoor digital photography, look no further. You’ll strike pay dirt with this new Appalachian Mountain Club guide. Accomplished photographer Jerry Monkman who has worked for a variety of national outdoor and wildlife magazines, nicely elaborates on the subject in one easily readable and visually instructive book. The book covers equipment, lenses, lighting, composition, exposure, and processing software. The text is supplemented with case studies and expert advice. This is outdoor photography after all, and Monkman doesn’t leave out suggestions on taking photos in adverse weather. You’ll find plenty to be mined from this fine reference, and you won’t even need a pick and shovel.
![clip_image014[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0144.jpg "clip_image014[4]")
Winner. Backpacker Magazine’s Complete Guide to Outdoor Gear Maintenance and Repair: Step by Step Techniques to Maximize Performance and Save Money. By Kristin Hostetter. Falcon Guides. ISBN 9780762778317.
If you were to search the outdoor world for someone to write about repairing gear, you wouldn’t find anyone better suited for the job than Kristin Hostetter. Hostetter has been Backpacker Magazine’s gear editor since 1994, and she knows a thing or two about the subject. In the Complete Guide, Hostetter has consolidated her wide ranging knowledge into one comprehensive volume covering the repair of all sorts of equipment: boots, packs, sleeping bags, clothing, stoves—and oh, how could we forget? —she also includes a special chapter on what can be done with a roll of duct tape. The information from her book is particularly useful when you’re out in the field. Stuff happens out there, and with Hostetter’s clear and helpful instructions you’ll be back on the trail in no time. Add it all up, throw in the book’s classy and intelligent design, and this guide scores right at the top of its class.
![clip_image004[26]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image00426.gif "clip_image004[26]"){kind=small}
Outdoor Adventure Guidebook Category |
![clip_image015[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0154.jpg "clip_image015[4]")
Winner. Grand Canyoneering: Exploring the Rugged Gorges and Secret Slots of the Grand Canyon. By Todd Martin. Todd’s Desert Hiking Guide. ISBN 9780978961435.
If you’re into canyoneeering, Grand Canyoneering is a must-have. Handsomely illustrated with color photographs throughout, this outstanding guide includes thorough explanations of over 100 different trips into the tributary drainages and ravines of the Grand Canyon. Trip descriptions are supplemented with topographic maps, key GPS coordinates, and information on water sources, specialized equipment and natural history. Todd Martin writes in a comfortable, conversational style which makes the guide a pleasure to read; yet, at the same time, he is exacting when it comes to describing canyon routes. The sheer volume of material alone is impressive, and combined with the photos, maps, and text, it’s decidedly a tour de force of outdoor guidebooks.
![clip_image004[27]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image00427.gif "clip_image004[27]"){kind=small}
Nature Guidebook Category |
![clip_image016[4]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image0164.jpg "clip_image016[4]")
Winner. A Field Guide to the Southeast Coast & Gulf of Mexico. By Noble S. Proctor and Patrick J. Lynch. Yale University Press. ISBN 9780300113280.
Tired of hauling around a library of guidebooks? Here’s the alternative: A Field Guide to the Southeast Coast. It’s not just a guidebook. It is several guidebooks rolled into one. It is a bird guide. It is a plant guide. It is a fish guide. It is a marine mammal guide. This comprehensive work by Noble Proctor and Patrick Lynch includes over 600 species of flora and fauna of the Southeastern coastal regions and Gulf of Mexico. All of this is in one compact and easy-to-navigate guide, perfect for beach goers, hikers, boaters, birders, fishers, snorkelers—and anyone who wants to leave the library at home.
![clip_image004[28]](https://recreation-law.com/wp-content/uploads/2012/11/clip_image00428.gif "clip_image004[28]"){kind=small}
Official NOBA reviews prepared by Ron Watters. Reviews are based on comments and insights provided by members of the judging panels. A special thanks to Katherine Daly for her editorial work.
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Judges Natalie Bartley, Boise, ID Val Cunningham, St. Paul, MN Dave Devoe, Walhalla, SC Laura Erickson, Duluth, MN Liam Guilar, Queensland, Australia Steve Guthrie, Lock Haven, PA Jim & Sara Fullerton, St. Simons Island, GA Dale Harrington, Boone, NC Paul Kallmes, Berkeley, CA Rodney Ley, Fort Collins, CO John Miles, Bellingham, WA Susanne Dubrouillet Morais, Raleigh, NC James Moss, Littleton, CO Tom Mullin, Unity ME Sophie Osborn, Laramie, WY Tammie L. Stenger-Ramsey, Bowling Green, KY Ron Watters, Pocatello, ID Melanie Wulf, St. Charles, IL |
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Newsletter has good ideas, but also misses the mark a little
Posted: November 14, 2012 Filed under: Insurance | Tags: AdventureTravel, Insurance, Jim Moss, Recreation-Law.com, Risk Management Leave a commentChurch Mutual newsletter needs a little clarification about allowing groups into your facilities.
The article was a newsletter to insured’s and interested parties to help them reduce their exposure to risk. The issue was a question and answer about how you deal with
English: Charles Simms, March 17, 1796, Fire Insurance Policy (Photo credit: Wikipedia)
groups that want to use your facility. There were three issues that I think need clarified.
The first was all groups that want to borrow, rent or use your space should provide the owner with a certificate of insurance. The quote was:
Once approved, all groups must provide a certificate of insurance from either a local or national organization as a condition of using our facility.
1. The Certificate of Insurance should be from a National Insurance Company.
2. The certificate of Insurance should name your facility or the owner of the facility as an additional insured on the certificate.
3. The certificate of insurance should also include a copy of the insurance policy. There are a lot of “fake” certificates of insurance and a copy of a policy allows you to call the issuing company and verify the insurance is in force.
The second issue was:
Small groups without insurance are required to sign a waiver stating that the group and individuals will not hold Presbyterian Church of the Master responsible for any injuries or other losses they might incur while on our property.
1. When a group signs an agreement that says the group will protect the owner of the property from claims, it is called a hold harmless or an indemnification agreement.
2. A waiver is a release signed by an individual before an accident releasing the other person from any liability.
3. A hold harmless or indemnification agreement without an insurance policy behind it is worthless. How many groups of “people” have enough money to reimburse you for a claim?
A better approach would be to have each person coming to the event at the facility to sign a release. Yes, it is a pain in the butt, but it is the only real protection you if cannot get a certificate of insurance and a copy of an insurance policy.
The best thing to do is make sure your facility is as safe as you can make it, any non-safe areas or not accessible and the place is clean. Better to not have an accident then it is to try to defend one. In a building situation, it should be fairly easy to have your facility inspected to make sure it is up to code, standards and the latest and greatest for your guests and others.
The final issue was the group using to facility had to abide by the “standards of use.” Have rules that the group agrees to abide by. Make sure the rules are understood. Do not use acronyms, explain everything. If necessary do a walk-through of the property and make sure the renters understand the rules.
Don’t expect the rules to be followed.
See Risk Reporter talks with Woody Burge about facility rental
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Colorado Resorts Offering a Flurry of Early Season Ski Deals
Posted: November 13, 2012 Filed under: Ski Area | Tags: Arapahoe Basin, Aspen Mountain, Colorado, Copper Mountain, Crested Butte Mountain Resort, Deals, Durango Mountain Resort, Ski, Ski Areas, Ski Cooper, Ski Country USA, skiing, Snowboard Leave a comment
Colorado Resorts Offering a Flurry of Early Season Ski Deals
Skiers can save with special offers on multi-day lift tickets, lessons, rentals, lodging, and a snow guarantee
DENVER, Colo. – November 9, 2012 – As the 2012/13 ski season gets underway in Colorado, Colorado Ski Country USA (CSCUSA) resorts are rolling out early season deals and incentives that underscore Colorado as a very attainable and affordable winter ski destination.
With the variety of discounted products recently released, savvy skiers will find that doing a little research can pay big dividends. “Guests have learned that by taking advantage of early season deals and booking their ski vacation early, they will yield the biggest savings and end up with a ski trip that fits their budget and needs,” explained Melanie Mills, president and CEO, Colorado Ski Country USA. “Resorts are able to leverage their partners in lodging, ski school and equipment rentals and put together some very creative and attractive packages.”
A sampling of resort early season deals is below and more can be found on www.ColoradoSki.com/deals.
Passes & Lift Tickets
East Wall at Arapahoe Basin (Photo credit: Wikipedia)
Arapahoe Basin offers The Legend’s 4 Pass which is valid for four days of skiing or riding at Arapahoe Basin. The cost is $158 and the pass is non-transferable (this is a hard-card product that requires a photo) and available for purchase until December 14, 2012. Valid all season with no blackout dates, guests can purchase The Legend’s 4 online at Arapahoebasin.com or via phone by calling 888-ARAPAHOE.
Colorado Gems Card
The Colorado Gems Card is a discount card for use at the eight Colorado Gem resorts (Arapahoe Basin, Eldora, Loveland, Monarch, Powderhorn, Ski cooper, Ski Granby Ranch, and Sunlight). It offers deals and discounts that appeal to skiers and riders of all ages and abilities. In addition to the resorts’ upgraded season-long deals, there is a new component to this year’s Gems Card: Flash Deals. Flash Deals are special promotions and ways to save that are unique to each Gem resort and will be announced last minute throughout the season. CSCUSA will announce Flash Deals in the Gems newsletter, on social media, and on the Gems website www.ColoradoSki.com/gems. Only Colorado Gems Card holders will be able to take advantage of Flash Deals.
Powderhorn
The Powderhorn P-Card is neither a season pass nor a lift ticket, but still offers flexibility and savings. The P-Card is a $69 product that allows the purchaser one free day of skiing or snowboarding and additional days at 20 percent off a regular single day adult lift ticket for the rest of the season. Complementary to the P-Card is the Deca Card. The Deca Card can be used for gifts, families, groups, and friends. The Deca Card is $170 and allows the holder to purchase 10 half-price lift tickets, one at a time, all in one day, or any combination in between. It is transferable with no blackout dates. Details and more information can be found at www.Powderhorn.com.
New this season is Ski Cooper’s XP 4 Day Pass for $99. Providing direct-to-lift access (pass will be scanned at the lift), no blackout dates or restrictions, and the flexibility to not be used on consecutive days, this deal breaks down to skiing or riding for less than $25 a day. The XP 4 Pass is non-transferable. The $99 purchase price is good until opening day (November 22 as conditions permit) and then the pass can be purchased for $119 while supplies last. For details and more information please visit www.SkiCooper.com.
Steamboat
Guests are invited to spend the early season in Ski Town USA with the Boat Launch pass that offers three days of skiing and riding from November 22 – December 14. The pass is $129, but with snow in the forecast, Steamboat is offering discounted passes for the next week. For details and more information please visit www.steamboat.com/boatlaunch.
Sunlight
Sunlight offers a free lift ticket to Powderhorn passholders until December 20, 2012. Skiers and riders need to show their Powderhorn season pass at the Sunlight ticket window to receive a lift ticket for the day. This offer is valid for all ages and available from opening day at Sunlight (scheduled for Dec. 7) until December 20, 2012. For details and more information please visit www.Sunlightmtn.com.
Lift & Lodging Packages
Aerial view of Ski Cooper. (Photo credit: Wikipedia)
Aspen/Snowmass
This year the Limelight Hotel in Aspen, where dogs are welcome, offers deals such as its Ski Free package* where guests can receive up to two lift tickets per day with a three night minimum stay, based on availability, and some blackout dates apply. Details and more information can be found at www.limelighthotel.com.
*Lift tickets do not have a dollar value and are non-refundable. Lift tickets are good at all four Aspen/Snowmass ski areas, including Aspen Mountain, Aspen Highlands, Buttermilk and Snowmass.
Copper Mountain
Copper Mountain’s Powder to the Pillow deal gives guests overnight stays in their back pocket to use at any point in time. Guests can pre-purchase three to six nights of lodging and reserve the rooms throughout the season. Visit www.CopperColorado.com for more information.
Crested Butte
A destination known for their past ski free promotions, Crested Butte Mountain Resort offers free skiing for everyone on Opening Day of the 2012-2013 winter season. On November 21, 2012, everyone skis for free, no strings attached. If guests want to stay longer and still receive free skiing, they can book the Ski Free with Lodging package with Crested Butte Vacations at www.skicb.com or call 800-600-2803. Stay one night and receive a free day of skiing for each person on the reservation. This package is available November 21 – December 19, 2012.
Purgatory
Skiers and riders can escape to the scenic Colorado Rocky Mountains for $95 per person/per night with Purgatory’s Rocky Mountain Getaway. The package includes two days of lift tickets and two nights lodging at Durango Mountain Resort. For more information and to book, guests can call 800-525-0892 and mention the “Rocky Mountain Getaway.” Details and more information can be found at www.DurangoMountainResort.com.
*Price is per person, per night, based on double occupancy, minimum two-night stay. Packages may be further customized. Not valid 12/24/2012 – 1/4/2013. Other restrictions may apply.
Steamboat
Steamboat believes that the early bird gets the worm through early rewards package. Travelers can save 20 percent on lifts and lodging for four nights and three days, as low as $394 per adult. A minimum four nights’ lodging and three day lift ticket is required for all guests. Additional savings can be found with Steamboat’s Airfare Sale, with flights as low as $150 into Steamboat’s Hayden Airport. United, Delta and American Airlines have deals from locations including Atlanta, New York, Chicago, Los Angeles, Orlando and more. Travelers need to book by November 30, 2012 for the best savings. For details and more information please visit http://www.steamboat.com/plan-your-trip/deals-and-packages/early-rewards.aspx.
Winter Park
Guest can book five flexible nights of lodging for $169 per night at The Vintage Hotel and they will receive a free Winter Park Season Pass. The season pass allows unrestricted access to Winter Park’s cruisers and Mary Jane’s famous mogul runs all season long. Lodging must book buy December 12, 2012.
New this year, Winter Park is offering a Snow Guarantee. With the guarantee, previously booked vacations can be rescheduled for later in the season if snow conditions are not up to guest’s standards. Trips must be booked for arrival/departure between November 14 – December, 20 2012. Notification of rescheduling must be made 48 hours prior to arrival (by 4 p.m., two days prior to arrival) and will be on a space available basis. Rescheduled trip must be used by April 21, 2013. The cost of the early season vacation will be applied to the later dates and any difference in cost will be paid by the guest and no refund will be offered.
This season Winter Park is offering 25 percent off nightly lodging at the resort. The discount applies to Winter Park Resort properties including Zephyr Mountain Lodge, Fraser Crossing, Founders Point, and Vintage Hotel. Offer is not valid December 26 – 31, 2012 and March 10 – 14, 2013 and must be booked by December 12, 2012. Details and more information can be found at www.WinterParkResort.com.
Lift/Lessons
Aspen/Snowmass
Aspen/Snowmass invites guest who are new to the sports of skiing and snowboarding to take advantage of a lift and lesson package and get on the slopes in the early season. Right now, guests can buy 2, get 3 on lift tickets, equipment rentals, and group lessons (all kids group lessons ages 5 – 17 and adult group lessons level 4 and up). Packages must be booked by November 19, 2012 and are valid November 22 – December 20, 2012. To book this package and get more information please visit www.stayaspensnowmass.com.
Loveland
Loveland has a deal for those who have never tried skiing or riding before but always wanted to. With Loveland’s 3-Class Pass, guests can learn a new sport and receive an Unrestricted Loveland Season Pass to enjoy and practice turns all season long. Guests can simply sign up for three ski or snowboard full lesson packages, which include lesson, all day lift ticket and equipment rental. Once they complete the third lesson, they will receive a season pass. Additional charges apply for novice and low intermediate adults. Prices and more information can be found at http://www.skiloveland.com/skischool/3_class_pass.aspx
Ski Granby Ranch
Ski Granby Ranch (formerly SolVista Basin) offers the Get On the Snow (GOTS) program for never-ever-before skiers or riders. With Ski Granby Ranch’s GOTS Program, guests can learn a new sport and receive a season pass to practice everything they learned. The program includes two full days of lessons and equipment rentals. Once the second lesson has been completed, guests will receive a season pass. For more information, please visit http://www.granbyranch.com/colorado-skiing-snowboarding-ski-resorts-ski-and-ride-school.html.
Wolf Creek
The Beginner Package at Wolf Creek Ski Area offers never-ever skiers and snowboarders a combination lift and group lesson ticket to keep it easy on the first day. The $56 price includes four hours in a group ski lesson and access to the beginner Nova double chairlift. For $66 the same deal can be used for snowboarders. This package is offered to adult skiers/boarders, as well as children ages nine and up. For details and more information please visit www.WolfCreekSki.com
Anniversary Deals
Copper Mountain
Copper Mountain welcomes its 40th season in the skiing business December 7 – 9 with throwback deals. All weekend long, Copper is offering anniversary themed specials; $40 lift tickets, $.72 beer at Endo’s, $40 equipment rental for two and $40 Ski & Ride School and Woodward at Copper packages and much more. Retro snow suits are requested but not required; visit www.CopperColorado.com for more details.
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If you really are bad, a judge will figure out a way to void your release
Posted: November 12, 2012 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Kentucky, Release (pre-injury contract not to sue) | Tags: Appeal, Bull, Bull Riding, Charles, Defendant, Gross negligence, Kentucky, Negligence, Plaintiff, Release, Ring of Fear, Rodeo, United States, Waiver Leave a commentDavis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423
Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.
I guess I knew that these contests happened. I grew up in a rural community where we had greased pig contests, but nothing like this. The plaintiff entered a contest where he went into a rodeo and stood in a white circle. There were other participants also standing in circles. A bull was released into the ring. The last person standing in a white circle won. Prize money was $50.00. The contest was called the “Ring of Fear.” The bull struck the deceased bursting his liver.
$50.00?
The plaintiff’s spouse sued. The deceased prior to entering the ring signed a release. The release was comprehensive but apparently had all participant signatures on one form. Allegedly, the deceased was not given any time to read the release.
Prior to the bull being released into the ring, the bull was allegedly provoked by jabbing him with a wooden object and beating sticks against the bull’s cage. (I’m guessing PETA is not big in this part of Kentucky…….)
The trial court dismissed the complaint based on the release signed by the deceased. The plaintiff appealed.
Summary of the case
The appellate court first looked at the Kentucky Farm Animals Activities Act (FAAA) KRS 247.401 through KRS 247.4029. The court found the statute was applicable to the facts in this case. The court also found that the warnings found in the act provided immunity to defendants who posted the warnings. Failure to post the warnings did not create a claim of negligence per se or strict liability as the plaintiff argued. Failing to post the warnings simply failed to provide the immunity under the statute.
The court also found that the FAAA allowed farm animal event sponsors to sue the act if they posted the warning signs.
The court found that the FAAA had no duty to reduce or eliminate the inherent risks found in farm animal activities. The court also found that act did not protect sponsors that intentionally mistreat or aggravate a farm animal. That would be the antithesis of the purpose of the act.
The court then looked at the issue of the release and stated,
While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. [Emphasize added]
Although not a definitive statement on the issue, it appears that under Kentucky law, a release will protect a defendant against a claim of gross negligence.
Releases in Kentucky will be upheld if they meet the following tests if:
(1) it explicitly expresses an intention to exonerate by using the word “negligence;” or
(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or
(3) protection against negligence is the only reasonable construction of the contract language; or
(4) the hazard experienced was clearly within the contemplation of the provision.
From a legal point, this is an extremely broad language about how a release will be interpreted by the courts.
The court then examined the release and found no language the court could interpret that could be used to say the release was going to stop a gross negligence claim. The court also found that intentionally mistreating the bull would “at the very least constitute gross negligence.”
The court followed up by stating that infuriating a bull would constitute willful of wanton conduct which “a party may not contract away any liability through a release.”
Finally, the court looked at a laundry list of additional issues raised by the plaintiff:
..that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it.
The court stated that those were all factual issues to be resolved by a trier of fact.
So Now What?
Although the issue that a release in Kentucky may protect against gross negligence is great as well as the broad language that can be used in a release in Kentucky, the last two issues mentioned by the court allow numerous ways to void releases in Kentucky and place a burden upon the business or program operating in Kentucky and using a release.
That is requiring an outfitter to see if a guest has the sufficient skills, ability and desire to undertake the activities and making sure the person signing a release has sufficient time to read the release.
Solving the problems of the Defendant
First, I would have raised an assumption of risk argument, although I am not sure of the status of A/R in Kentucky. However, I believe that it is pretty obvious that you can get gored by a bull in a ring. The deceased and the plaintiff were going to the event for a rodeo so it had to have been obvious, to some extent.
Second by having separate releases rather than one sign-up sheet, the argument that the deceased did not have time to read the release could have been diffused if not eliminated. If each person has a sheet of paper, then there is no rush to get all the signatures on one sheet of paper.
Still to be resolved
The issue that the defendant did not enquire as to the ability of the participant to participate in the Ring of Fire is an open-ended opportunity for every lawsuit in Kentucky to go to trial.
How are you going to determine the requirements for a participant to undertake an activity? No matter what system, test or determination you make, you did not do a good job if someone is hurt or injured on your trip. Nor can you use medical information to determine if someone can participate because unless you are a physician, that would require diagnosis which you cannot do.
The only solution you can come up with to create a system so the participants can self-determine if they are able to participate. Show a video or create a checklist. Make sure your release states that the person has watched the video, seen your website and reviewed the checklist and understands it is their responsibility to determine if they are able to participate in the activity.
This could be a nightmare in Kentucky.
What do you think? Leave a comment.
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James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
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Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423
Posted: November 12, 2012 Filed under: Kentucky, Legal Case, Release (pre-injury contract not to sue) | Tags: Bull Riding, Kentucky, Release, Ring of Fear, Rodeo, Summary judgment Leave a commentTo Read an Analysis of this decision see
If you really are bad, a judge will figure out a way to void your release
Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423
Susan Davis, Individually and as Administratrix of the Estate of Charles A. Davis, Deceased, Appellants v. 3 Bar F Rodeo; Marcus Fannin; Bobby Ray Fannin; Grant County Fair, Inc., Appellees
NO. 2006-CA-002212-MR
2007 Ky. App. LEXIS 423
November 2, 2007, Rendered
NOTICE:
PLEASE REFER TO THE KENTUCKY RULES REGARDING FINALITY OF OPINIONS. TO BE PUBLISHED. [UNLESS OTHERWISE ORDERED BY THE KENTUCKY SUPREME COURT, OPINIONS DESIGNATED “TO BE PUBLISHED” BY THE COURT OF APPEALS ARE NOT TO BE PUBLISHED IF DISCRETIONARY REVIEW IS PENDING, IF DISCRETIONARY REVIEW IS GRANTED, OR IF ORDERED NOT TO BE PUBLISHED BY THE COURT WHEN DENYING THE MOTION FOR DISCRETIONARY REVIEW OR GRANTING WITHDRAWAL OF THE MOTION.]
SUBSEQUENT HISTORY: As Modified May 2, 2008.
Rehearing denied by Davis v. 3 Bar F. Rodeo, 2008 Ky. App. LEXIS 266 (Ky. Ct. App., May 2, 2008)
Review denied and ordered not published by Grant County Fair, Inc. v. Davis, 2008 Ky. LEXIS 249 (Ky., Oct. 15, 2008)
PRIOR HISTORY: [*1]
APPEAL FROM GRANT CIRCUIT COURT. HONORABLE STEPHEN L. BATES, JUDGE. ACTION NO. 05-CI-00427.
DISPOSITION: REVERSING AND REMANDING.
COUNSEL: BRIEF AND ORAL ARGUMENT FOR APPELLANTS: Jerry M. Miniard, Florence, Kentucky.
BRIEF AND ORAL ARGUMENT FOR APPELLEE, GRANT COUNTY FAIR, INC.: Thomas R. Nienaber, Covington, Kentucky
BRIEFS FILED FOR APPELLEES, 3 BAR F RODEO, MARCUS FANNIN, AND BOBBY RAY FANNIN: Steven N. Howe, Dry Ridge, Kentucky.
JUDGES: BEFORE: LAMBERT, TAYLOR AND WINE, JUDGES. ALL CONCUR.
OPINION BY: WINE
OPINION
REVERSING AND REMANDING
WINE, JUDGE: Susan Davis (“Susan”), individually and as the Administratrix of the Estate of Charles A. Davis (“Charles”), deceased, appeals a summary judgment order entered by the Grant Circuit Court dismissing her claims against the Grant County Fair, Inc. (“GCF”), 3 Bar F Rodeo (“3-BFR”), Marcus Fannin (“M. Fannin”) and Bobby Ray Fannin (“B. Fannin”) (“Appellees” collectively) for the injuries and wrongful death of her husband, Charles, which occurred on September 25, 2004. Specifically, Susan argues the trial court erred by denying her motion for summary judgment based upon the Appellees’ alleged failure to give her husband the mandatory warning pursuant to KRS 247.4027, which resulted in Charles’s severe internal bodily injuries [*2] which ultimately led to his death. For the reasons stated herein, we remand this case as summary judgment was not appropriate.
Appellant, GCF, is a non-profit corporation whose primary function is to own, maintain, and operate the Grant County Fairgrounds. 3-BFR is an unincorporated association comprised of M. Fannin and B. Fannin. 3-BFR’s primary function is to conduct rodeo events for the general public. GCF entered into an agreement with 3-BFR, M. Fannin and B. Fannin whereby 3-BFR would hold a rodeo at the fairgrounds.
On September 25, 2004, Charles and Susan attended the rodeo at the Grant County Fair. The announcer for the rodeo, Aaron Platt (“Platt”), called for participants for a game called the “Ring of Fear.” This game called for audience members to participate by entering the rodeo ring and standing in marked circles on the ground. Kenny, a bull from Ohio, was then released into the ring. The last person standing, without stepping outside of the circle, won the grand prize of $ 50.00. Charles proceeded to the ring to try his luck in the Ring of Fear. Susan alleges Kenny was angered by someone jabbing him with a wooden object and beating sticks against his cage prior to his [*3] release. Once released, Kenny proceeded to drive his head into Charles’s abdomen, lifting him off the ground. Charles made his way back into the stands where his wife Susan was seated. Unknown to Charles or anyone else, Kenny’s blow to Charles’s abdomen had caused his liver to burst and he was bleeding internally. Charles faded into temporary unconsciousness next to his wife in the stands. Charles died the next morning at the University of Cincinnati’s trauma unit. The cause of death was ruled “blunt trauma to torso” and internal bleeding.
Susan then brought a wrongful death action against GCF, 3-BFR and the Fannins, alleging that their negligence had caused her husband’s death. GCF moved for summary judgment based upon a release signed by Charles prior to his participation in the Ring of Fear. 3-BFR, M. Fannin and B. Fannin filed similar motions. After completing more discovery and taking depositions, Susan filed a cross-motion for summary judgment, asserting that the Appellees failed to properly warn of the dangers of the Ring of Fear as required by KRS 247.4027. Susan alleged the Appellees’ failure to warn was a substantial factor in causing the injuries that led to her husband’s [*4] death. The trial court granted summary judgment to the Appellees, finding that the release was sufficient to exempt them from liability in light of Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). The trial court denied Susan’s cross-motion for summary judgment. This appeal followed.
[HN1] In reviewing a motion for summary judgment, a trial court must consider all the stipulations and admissions on file. CR 56.03. “[S]ummary judgment is proper only where the movant shows that the adverse party cannot prevail under any circumstances.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991), citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985). The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 43 1 Ky. L. Summary 17 (Ky.App. 1996). There is no requirement that the appellate court defer to the trial court because factual findings are not at issue. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381, 39 7 Ky. L. Summary 24 (Ky. 1992).
Susan argues the Appellees breached their duty to warn [*5] pursuant to the Farm Animals Activities Act (“FAAA”), found in KRS 247.401 through KRS 247.4029. Specifically, [HN2] the FAAA represents a statutory plan designed to outline the duties and responsibilities of both participants and sponsors conducting animal activities. Having thoroughly read the statute, we agree with Susan that the statute applies to this case. However, KRS 247.4027(2)(a) allows for a waiver of liability if the participant signs a release waiving his right to bring an action against the farm animal event sponsor.
Susan asserts that non-compliance with the warning requirements of KRS 247.401 constitutes negligence per se and/or strict liability. We disagree. KRS Chapter 247 is generally recognized throughout the country as “Equine Activity Statutes” (“EAS”). In general, these statutes are an attempt to limit liability of persons engaging in animal activities. Therefore, [HN3] if a sponsor of an animal activity does post the suggested warnings found in KRS Chapter 247, he is granted immunity from liability if someone gets hurt. If, as in this case, the warnings are not posted, the sponsor loses the immunity and may be held responsible for the injury in accordance with other applicable [*6] law. KRS 247.4013. Therefore, EAS statutes are “immunity statutes,” not negligence per se or strict liability statutes as recognized in many of our sister states. See Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. 2006); Amburgey v. Sauder, 238 Mich. App. 228, 605 N.W.2d 84 (Mich. App. 1999).
[HN4] Although KRS 247.402 requires farm animal activity sponsors to warn of the inherent risks, there is no duty to reduce or eliminate the inherent risks. However, to intentionally mistreat or aggravate a farm animal would be the antithesis of this duty.
While it is clear that the Appellees did not have warning signs posted at the ring entrance, it is undisputed that Charles signed a release just prior to his participation in the Ring of Fear. Therefore, the central issue in this case is the validity of the release Charles signed. The release Charles signed states as follows:
We the undersigned hereby request permission (1) to enter the restricted area (2) to participate as a contestant, assistant, official or otherwise rodeo events (3) to compete for money, prizes, recognition or reward.
In consideration of “permissive entry” into the restricted areas, which is the area from which admission to the [*7] general public is restricted, which includes, but is not limited to the rodeo arena, chutes, pens, adjacent walkways, concessions and other appurtenances, I undersigned, my personal representatives, heirs, next of kin, spouses and assigns to hereby:
1. I release, discharge and covenant not to sue the rodeo committee, stock contractor, sponsors, arena operators or owners and each of them, their officers, agents and employees all hereafter collectively referred to as (Releases) from any and all claims and liability arising out of strict liability or ordinary negligence of Releases or any other participant which causes the undersigned injury, death, damages or property damage. I, the undersigned, jointly, severally, and in common, covenant to hold releases from any claim, judgment or expenses that may incur arising out of my activities or presence in the restricted area.
2. Understand that entry into the restricted area and/or participation in rodeo events contains danger and risks of injury or death, that conditions of the rodeo arena change from time to time and may become more hazardous, that rodeo animals are dangerous and unpredictable, and that there inherent danger in rodeo which [*8] I appreciate and voluntarily assume because I chose to do so. Each of the undersigned has observed events of this type and that I seek to participate in. I further understand that the arena surface, access ways or lack thereof, lighting or lack thereof, and weather conditions all change and pose a danger. I further understand that other contestants and participants pose a danger, but nevertheless, I voluntarily elect to accept all risks connected with the entry into restricted areas and/or participate in any rodeo events.
3. I agree that this agreement shall apply to any incident, injury, and accident death occurring on the above date and fore (sic) a period of one (1) year thereafter. All subsequent agreement and release documents signed by any of the undersigned shall amplify, shall in no way limit the provisions of the document.
4. I the undersigned agree to indemnify the Releases and each of them from loss, liability damage or costs they may incur due to the presence or participation in the described activities whether caused by the negligence of the Releases or otherwise.
WE HAVE READ THIS DOCUMENT, WE UNDERSTAND IT IS A RELEASE OF ALL CLAIMS, WE APPRECIATE AND ASSUME ALL RISKS INHERENT IN RODEO. [*9]
Charles’s signature appears below this language along with the signatures of the other participants of the Ring of Fear on September 25, 2004.
[HN5] While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. Hargis, 168 S.W.3d at 47.
[A] preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision.
Id., citing 57A AM. JUR. 2d, Negligence § 53 (citations omitted). The trial court held that the release met the above requirements in Hargis and, absent genuine issues of fact as to the release, its enforceability warranted summary judgment in favor of Appellees.
We disagree with the trial court that the release form signed by Charles satisfies all of the [*10] factors in Hargis. The release uses the word “negligence.” The release does specifically and explicitly release the Appellees from liability for “any and all claims and liability arising out of strict liability or ordinary negligence of Releases [Appellees] . . . which causes the undersigned [Charles] injury . . . [or] death . . . .”
The language of the release is specific as to its purpose to exonerate the sponsors from ordinary negligence liability. The release specifically warns that rodeo events contain danger and risks of injury or death; that the conditions of the rodeo arena change and may become more hazardous; that rodeo animals are dangerous and unpredictable; and finally that anyone choosing to participate voluntarily assumes the inherent danger that exists in rodeo events. However, there is no language that releases Appellees from conduct that would constitute gross negligence. Susan contends that Appellees provoked Kenny by prodding him and beating on his cage prior to his release into the ring. The intentional provocation of the bull by Appellees to attack the participants is clearly not contemplated by the release. While the Appellees dispute the allegations of intentionally [*11] mistreating Kenny, if true, it would at the very least constitute gross negligence. The release contemplates getting into the ring with a bull and even mentions that rodeo animals are unpredictable. However, the release does not contemplate a bull that has been infuriated by the Appellees prior to its release into the ring. Such conduct could be construed as willful or wanton for which a party may not contract away any liability through a release. Hargis, supra. This material issue of fact as disputed by the parties can only be resolved by a trier of fact and is not appropriately resolved by summary judgment. If the jury determines that Appellees’ conduct was grossly negligent, the release would be unenforceable as to this conduct. Of course, under comparative negligence, the jury could also consider Charles’s own conduct in contributing to his death.
Susan also argues that the trial court was presented with a genuine issue of material fact as to whether the Appellees offered her husband protective chest gear. M. Fannin testified that the participants in the Ring of Fear on the date in question were given an opportunity to put on a protective vest before entering the rodeo ring. Conversely, [*12] Rob Wells (“Wells”), who participated on the same day as Charles, submitted an affidavit indicating that he was never offered a protective vest nor did he observe that there were protective vests available. Susan further submits that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it. In support of this contention, Susan relies on the affidavit of Wells wherein he indicates that he did not read the release. These are all factual issues to be resolved by a trier of fact.
Accordingly, we reverse and remand this case to the Grant Circuit Court for a jury trial.
ALL CONCUR.
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