Rocky Mountain Bird Observatory’s Annual BBQ for the Birds

Old Stone House Environmental Learning Center

14500 Lark Bunting Lane, Brighton, CO.

Schedule

7-10:30 a.m. Bird Banding Station Open
7 and 8 a.m. Bird Walks with RMBO Biologist
8 a.m.-12:30 p.m. Silent Auction Open
8 a.m.-12 p.m. Kids’ Games & Crafts
9 a.m. Family Nature Hike
9:30-11:30 a.m. Face Painting
9-10 a.m. Talk: “North Park Colonial Waterbirds”
9-10 a.m. Grassland Conservation Talk & Walk
9 a.m.-11 p.m. Live Raptors
9 a.m.-noon Exhibits
10-10:45 a.m. Talk: “Just Passing Through: A Look at Colorado’s Migrating Birds”
10-10:45 a.m. Backyard Wildlife Habitats Workshop
11 a.m. Ribbon Cutting Ceremony
11:45 a.m. Picnic Lunch & Live Music
12:30 p.m. News & Awards from RMBO
12:45 p.m. Live Auction
1 p.m. Presentation by Mark Obmascik, Author of “The Big Year”

At this year’s picnic

Governor John Hickenlooper

will cut the ribbon to officially open our new Environmental Learning Center. 

“The Big Year” author Mark Obmascik

will share colorful stories about birding, the book and the movie. Bird walks and talks, live raptors, a picnic catered by the Brighton Depot and much more will make it a fun day for all!

No refunds after August 22

Silent auction proceeds benefit RMBO education programs

Merten v. Nathan, 108 Wis. 2d 205; 321 N.W.2d 173; 1982 Wisc. LEXIS 2740

Merten v. Nathan, 108 Wis. 2d 205; 321 N.W.2d 173; 1982 Wisc. LEXIS 2740
Bonnie Merten, Plaintiff-Appellant-Petitioner, v. Kerry Nathan, Peter Nathan, Burgundy Ridge Farms, Inc., and Illinois Employers Insurance of Wausau, Defendants-Respondents
No. 80-1663
Supreme Court of Wisconsin
108 Wis. 2d 205; 321 N.W.2d 173; 1982 Wisc. LEXIS 2740
April 27, 1982, Argued
July 2, 1982, Decided
PRIOR HISTORY: [***1] Review of a decision of the Court of Appeals. Reversing and remanding 103 Wis. 2d 693, 310 N.W.2d 653.
DISPOSITION: By the Court. — Decision of the court of appeals reversed; judgment of the circuit court reversed and cause remanded to the circuit court for further proceedings not inconsistent with this opinion.
COUNSEL: For the plaintiff-petitioner there was a brief (in court of appeals) and a reply brief (in this court) by Robert C. Angermeier and Angermeier & Rogers of Milwaukee, and oral argument by Robert C. Angermeier.
For the defendants-respondents there was a brief (in this court) by Hamilton T. Hoyt, James P. Samster and Hoyt, Greene & Meissner, S.C., of Milwaukee, and oral argument by Hamilton T. Hoyt.
JUDGES: Shirley S. Abrahamson, J. William G. Callow, J. (dissenting).
OPINION BY: ABRAHAMSON
OPINION
[*206] [**174] This is a review of an unpublished decision of the court of appeals filed on July 8, 1981, affirming a judgment of the circuit court for Ozaukee county, Charles L. Larson, reserve Circuit Judge. Bonnie Merten, the plaintiff, brought an action for personal injuries suffered while taking a horseback-riding lesson at Burgundy Ridge Farms. [***2] The circuit court granted summary judgment to all defendants, holding that the exculpatory contract signed by the plaintiff relieved the defendants from liability arising from injuries [**175] incurred by the plaintiff during a riding [*207] lesson. The court of appeals affirmed the judgment of the circuit court. We reverse.
In this court, as in the circuit court and the court of appeals, the plaintiff attacks the validity of the exculpatory contract. Although many facts relating to the incident causing the injury are contested, the facts relevant to our determination of the validity of the exculpatory contract are undisputed.
The plaintiff, Bonnie Merten, had never ridden a horse before communicating with the defendant Kerry Nathan, an instructor at Burgundy Ridge Farms (also a defendant), to arrange for riding lessons. After the first lesson, a private one largely for evaluation purposes, the plaintiff signed a five-paragraph exculpatory contract titled “EQUESTRIAN RELEASE OF ALL CLAIMS.” ¹ While there appears to be some dispute as [*208] to when the exculpatory contract was signed, it is undisputed that the contract was executed prior to the incident in which [***3] the injury occurred.
1 The full text of the Exculpatory contract is as follows:
EQUESTRIAN RELEASE OF ALL CLAIMS
KNOW ALL MEN BY THESE PRESENTS:
The undersigned, being of lawful age, desires to participate in equestrian activities on property at the Burgundy Ridge Farms, Inc. The undersigned acknowledges that there are dangers and risks of injury inherent in these equestrian activities, but still desires to participate in these activities.
THEREFORE, the undersigned, for and in consideration of the opportunity to participate in these equestrian activities and for other good and valuable consideration, does hereby forever release, acquit and forever discharge Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton, their employees, agents and all other persons, corporations, associations, or partnerships from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever which the undersigned may hereinafter incur on account of, or in any way growing out of, any and all known or unknown, foreseen or unforeseen bodily and personal injuries and/or property damage or the consequences thereof resulting from any accident, casualty or event involving the undersigned and arising out of equestrian activities.
IT IS EXPRESSLY UNDERSTOOD by the undersigned that Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton, have no insurance covering equestrian activities and that the undersigned would not be permitted to engage in equestrian activities without this release whereby the undersigned irregardless of fault, agrees to fully release Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton and their employees and agents from any and all responsibility as a result of accident or injury.
FURTHER AND BY WAY OF INDEMNITY the undersigned hereby expressly understands and agrees to indemnify and save harmless Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton, their employees and agents, against any and all further claims or damages, costs or expenses incurred by Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton, their employees and agents, as a result of any accident or injury which might occur while the undersigned is engaging in equestrian activities and which may result from the negligence of the undersigned, Peter W. Nathan, Joseph and Kathleen Patton, Burgundy Ridge Farms, Inc., their employees or agents, third parties or any combination thereof.
The undersigned further declares and represents that no promise, inducement or agreement not herein expressed has been made to the undersigned and that this release contains the entire agreement between the parties hereto and that the terms of this release are contractual and not a mere recital.
THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT. (Emphasis added.)
[***4] The third paragraph of the exculpatory contract, and the key provision for purposes of this review, reads as follows:
“IT IS EXPRESSLY UNDERSTOOD by the undersigned that Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton, have no insurance covering equestrian activities and that the undersigned would not be permitted to engage in equestrian activities without this release whereby the undersigned irregardless of fault, agrees to fully release Burgundy Ridge [*209] Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton and their employees and agents from any and all responsibility as a result of accident or injury.”
[**176] After the injury, the plaintiff learned that, contrary to the representation set forth in the exculpatory contract quoted above, Burgundy Ridge Farms did have a liability insurance policy which covers injuries plaintiff received during her equestrian activities.
The defendant Burgundy Ridge had begun using the “equestrian release of all claims” at a time when it was uninsured. Prior to the execution of the instant exculpatory contract, Burgundy Ridge purchased a liability policy with limits of $ 300,000 per occurrence which apparently [***5] covers risks from which defendants sought release under the exculpatory contract. Nevertheless the defendants continued to use the exculpatory contract. Defendant Peter Nathan, president of Burgundy Ridge, testified that the premium ($ 3,120) was paid from the general receipts of the business which included fees from riding lessons.
In their answer to the complaint, the defendants, including the insurer, Illinois Employers Insurance of Wausau, raised the exculpatory contract as an affirmative defense and moved for summary judgment. The circuit court granted defendant’s motion for summary judgment, and the court of appeals affirmed. The court of appeals concluded that the exculpatory contract in this case did not fall within any of the categories of exculpatory contracts void on grounds of public policy and that the elements of fraudulent misrepresentation were not proved. ² [*210] Moreover the court of appeals refused to hold that instructors of dangerous sports cannot shift the risk to the participant unless the exculpatory contract particularizes the risks to be shifted.
2 The elements of fraudulent misrepresentation rendering a contract voidable are: (1) there must be a statement of fact which is untrue; (2) the false statement must be made with intent to defraud and for the purpose of inducing the other party to act upon it; and (3) the other party must rely on the false statement and must be induced thereby to act to his injury or damage. The court of appeals held on a motion for summary judgment that there was no indication in the pleadings, the affidavits or the depositions that the plaintiff relied on the false statement and that she had been induced to act on the basis of the false statement.
We have recognized that even honest misrepresentation is grounds for rescission of a contract because “‘it would be unjust to allow one who has made false representations, even innocently, to retain the fruits of a bargain induced by such representation.'” Whipp v. Iverson, 43 Wis. 2d 166, 171, 168 N.W.2d 201 (1969), quoting Williston on Contracts sec. 1500, p. 4189 (1937). See also, First National Bank & Trust Co. v. Notte, 97 Wis. 2d 207, 293 N.W.2d 530 (1980); Restatement (Second) of Contracts sec. 164 (1979).
Because we hold the exculpatory contract invalid on other grounds, we need not reach the question of whether either innocent or fraudulent misrepresentation or mutual mistake of fact exists and whether the issue of the plaintiff’s reliance can be decided in this case on a motion for summary judgment.
[***6] The sole issue before this court is whether the exculpatory contract bars plaintiff’s recovery. The plaintiff urges us to hold that exculpatory contracts, that is, contracts which relieve a party from liability for harm caused by his or her own negligence, are void as contrary to public policy. ³ In the alternative the plaintiff asks us to declare the exculpatory contract in the instant case unenforceable. Because we conclude that the instant contract is unenforceable, we do not reach the broader question of the validity of exculpatory contracts in general.
3 Plaintiff, citing Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 638, 284 N.W.2d 318 (1979), asserts that this court has never directly ruled on the validity of exculpatory contracts. In Ruppa this court expressly stated it would not reach the question of whether a release relieving defendants of liability is void as being contrary to public policy.
Although many jurisdictions have held exculpatory contracts valid, it is well accepted that [***7] such contracts [*211] are not favored by the law, that such contracts are to be construed strictly against the party seeking to rely on them, 6A Corbin on Contracts sec. 1472, p. 602 (1962), 15 Williston on Contracts sec. 1705A (3d ed. Jaeger, 1972), and that courts examine the facts and circumstances of each exculpatory contract with special care to determine whether enforcement of the exculpatory contract in the individual case contravenes public policy, College Mobile Home Park & Sales v. [**177] Hoffmann, 72 Wis. 2d 514, 519, 520, 241 N.W.2d 174 (1976). ⁴ This view toward exculpatory contracts reflects the courts’ accommodation between principles of contract law and tort law.
4 For previous cases dealing with exculpatory contracts, see, e.g., Queen Ins. Co. of America v. Kaiser, 27 Wis. 2d 571, 575, 135 N.W.2d 247 (1965) (exculpatory clause in a lease); College Mobile Home Park & Sales v. Hoffmann, 72 Wis. 2d 514, 516, 241 N.W.2d 174 (1976) (exculpatory clause in a lease); State Farm Fire & Casualty Co. v. Home Ins. Co., 88 Wis. 2d 124, 128, 276 N.W.2d 349 (Ct. App. 1979) (exculpatory clause in a lease); Arnold v. Shawano County Agr. Society, 106 Wis. 2d 464, 317 N.W.2d 161 (Ct. App. 1982), petition for review granted May 3, 1982 (exculpatory contract dealing with participation in an automobile race). See also, Dykstra v. McKee & Co., 100 Wis. 2d 120, 301 N.W.2d 201 (1981), and cases cited therein, holding an indemnity contract indemnifying a party against its own negligence is not void as against public policy.
[***8] The law of contracts is based on the principle of freedom of contract, on the principle that individuals should have the power to govern their own affairs without governmental interference. The courts protect each party to a contract by ensuring that the promises will be performed. The law protects justifiable expectations and the security of transactions.
The law of torts is directed toward compensation of individuals for injuries sustained as the result of the unreasonable conduct of another. Tort law also serves the “prophylactic” purpose of preventing future harm; payment [*212] of damages provides a strong incentive to prevent the occurrence of harm.
Adherence to principles of contract law would generally lead a court to enforce an exculpatory agreement without passing on the substance of the agreement. ⁵ Adherence to principles of tort law would tend to make a court reluctant to allow parties to shift by contract the burden of negligent conduct from the actor to the victim who has no actual control or responsibility for the conduct causing the injury. The rules governing exculpatory contracts reflect the uneasy balance between these principles of contract and tort [***9] law.
5 “[I]f there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice.” Baltimore & Ohio Sw. R. Co. v. Voight, 176 U.S. 498, 505 (1900). See Pound, Liberty of Contract, 18 Yale L.J. 454 (1909).
The court of appeals described four situations in which exculpatory contracts have been declared void on public policy grounds: a contract arises out of a business generally thought suitable for public regulation; the party seeking exculpation is engaged in performing a service of great importance to the public; the party seeking exculpation holds itself out as willing to give reasonable public service to all who apply; and the party invoking exculpation possesses a decisive advantage of bargaining strength.
The Restatement (Second) of Contracts sets forth the following [***10] situations in which exculpatory contracts are unenforceable on grounds of public policy:
“(1) A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.
“(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if
[*213] (a) the term exempts an employer from liability to an employee for injury in the course of his employment;
(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or
(c) the other party is similarly a member of a class protected against the class to which the first party belongs.
“(3) A term exempting a seller of a product from his special tort liability for physical harm to a user or consumer is unenforceable on grounds of public policy unless the term is fairly bargained for and is consistent with the policy underlying [**178] that liability.” Sec. 195, Restatement (Second) of Contracts (1979).
The exculpatory contract in the instant case does not fall within any of the categories of exculpatory contracts violating [***11] public policy set forth in the decision of the court of appeals or in the Restatement (Second) of Contracts. These categories, however, are not intended as an exhaustive list of situations in which exculpatory contracts are unenforceable on the grounds of public policy. Comments a and b, sec. 195, Restatement (Second) of Contracts, p. 66 (1979). Public policy is a broad, not easily defined concept. It embodies the community common sense and common conscience. Public policy is “that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.” Higgins v. McFarland, 196 Va 889, 86 S.E.2d 168, 172 (1955).
We are presented in this case with an exculpatory contract which includes a misstatement of fact by the party seeking the release. The fact misstated goes to the essence of the contract, that is, how and why the risks of loss are to be shifted from the prospective negligent actor to the victim. The language of the exculpatory contract in the instant case clearly ties the nonexistence of insurance to the requirement that persons who wish to [*214] ride release the defendants from liability. The message [***12] conveyed to any reasonable reader by the statement that the defendants “have no insurance covering equestrian activities” is clear. The defendants were explaining why a prospective student would have to bear the risk of any injury. The defendants were telling the prospective student: “We do not have insurance to cover your injuries. If you want to ride, you must exempt us from liability so that we do not face possible financial ruin.” But the explanation was false. A truthful statement would be that the defendants have insurance coverage and that there would be no or limited effect on the defendants if they bore the risk of loss. There can be no question that a statement that the defendants have no insurance protection is highly relevant to a reasonable student’s decision to sign a contract which allocates to the student the losses arising out of equestrian activities.
[HN1] When the party seeking an exculpatory contract includes in the contract a false statement about a fact which is relevant to a reasonable person’s decision whether to execute a release allocating losses, the principles of contract law do not weigh heavily in favor of enforcement of the exculpatory contract, and [***13] the goals of tort law weigh against enforcement of the exculpatory contract. Freedom of contract is premised on a bargain freely and voluntarily made through a process of bargaining which has integrity. If we were to enforce an exculpatory contract based on a false statement of fact relevant to a reasonable person’s decision whether to execute the release, we would open the door to sharp practice. Misstatements by the party seeking the release raise the strong suspicion of inequitable motive and overreaching and of lack of good faith or fair dealing on the part of the party seeking the release and of oppression of the party executing the release. Even though all the elements of misrepresentation or mistake cannot be proved in a [*215] case involving an exculpatory contract (and in this case more specifically, defendants assert that the plaintiff cannot prove she relied on their misrepresentation), relief should be granted from an exculpatory contract when the probability of unfairness exists. In view of the public policies of protecting free and voluntary bargaining and of imposing liability on persons whose conduct creates an unreasonable risk of harm, we conclude that it [***14] would be contrary to public policy to enforce an exculpatory contract when the bargaining process involves a mistake or deception which is relevant to a reasonable person’s decision to execute a release allocating losses. Accordingly we hold that the exculpatory contract in the instant case is unenforceable.
We reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings not inconsistent with this opinion.
By the Court. — [**179] Decision of the court of appeals reversed; judgment of the circuit court reversed and cause remanded to the circuit court for further proceedings not inconsistent with this opinion.
DISSENT BY: CALLOW
DISSENT
WILLIAM G. CALLOW, J. (dissenting).
The majority concludes: (1) The inclusion of the words “IT IS EXPRESSLY UNDERSTOOD . . . [that the defendants] have no insurance covering equestrian activities” is a misstatement of fact going to the essence of the exculpatory contract in the instant case, supra, at 207, and that (2) public policy renders such an exculpatory contract unenforceable. Supra, at 215. I disagree that the above-referenced words go to the essence of the contract. Further, [***15] I do not believe that the exculpatory contract in the instant case is violative of public policy as I understand the law in this area. Accordingly, I dissent.
Turning to the majority’s first conclusion, for which it cites no authority — that the defendants’ misstatement [*216] concerning insurance coverage was highly relevant and went to the essence of the bargain between the parties — I find, following a thorough review of the record and the release agreement, that the misstatement had little, if any, effect upon Bonnie Merten. It certainly was not, as the majority appears to characterize it, a condition precedent to the signing of the contract.
In the first paragraph of the release it states: “The undersigned acknowledges that there are dangers and risks of injury inherent in these equestrian activities, but still desires to participate in these activities.” The immediately succeeding “THEREFORE” clause states: “THEREFORE, the undersigned, . . . does hereby forever release . . . [the defendants] from any accident . . . arising out of equestrian activities.” Clearly, as I read the contract, the release of liability was in response to the nature of the activity the plaintiff [***16] desired to pursue.
I agree with the following conclusion reached by the court of appeals:
“There is no indication, either in the pleadings or the affidavits and depositions, that the [insurance] recital was a material fact upon which Merten relied. She admitted reading the release before signing it; she understood it and even questioned Kerry Nathan about it. Kerry Nathan said the release meant the stable was not legally responsible for any negligence. Merten said she understood that she was ‘releasing Burgundy Ridge Farms from any responsibility.’ With respect to the recital that the stable had no insurance, she said that when she first read this, ‘it bothered me, but I signed it anyway.’ There is no allegation that she signed the release because of or in reliance on the recital.” (Emphasis added.)
The majority concludes that “[e]ven though all the elements of misrepresentation . . . cannot be proved in a case involving an exculpatory contract . . . , relief should be granted from an exculpatory contract when the probability of unfairness exists.” Supra, at 215. [*217] This broad statement takes great license with the law, and the majority has not shown [***17] any evidence of unfairness in the instant case.
“The elements of fraudulent misrepresentation are well established in the case law: First, there must be a false representation; second, it must be made with intent to defraud and for the purpose of inducing another to act upon it; and third, such other person must rely on it and be induced to act, to his injury or damage.”
Goerke v. Vojvodich, 67 Wis. 2d 102, 107, 226 N.W.2d 211, 214 (1975). In my review of this case, Bonnie Merten has not proven elements two and three of this tort. The majority apparently believes that she does not have to prove these elements if an exculpatory contract is involved and the concomitant probability of unfairness exists. The majority opines that enforcing an exculpatory contract which contains a false statement of fact “open[s] the door to sharp practice.” I submit this is the very reason the tort of misrepresentation evolved. Simply because the plaintiff cannot meet its well-established elements is no reason for [**180] this court to carve out an exception in the case of exculpatory contracts. ¹
1 The majority states it would grant relief in cases where “the probability of unfairness exists.” Supra, at 215. Where there is is no evidence that the insurance statement was made with any intent to induce the signing of the contract and where the plaintiff did not rely upon the disclaimer in so contracting, I question whether unfairness exists. The majority apparently believes Bonnie Merten would not have signed the contract had she known of the existence of the insurance. Supra at 214. However, I know of no duty to disclose the existence of an insurance policy, and in fact, I doubt such disclosure is customary practice with any contract — particularly an exculpatory contract. While the majority may see disclosure as desirable to a potential plaintiff, it is not the law.
As I read the majority opinion, had the contract been silent regarding the issue of insurance, it would have been upheld. But because the defendants had the misfortune to use their standard form, drafted prior to the acquisition of insurance, which the plaintiff did not rely upon, the majority has imposed liability. I submit the defendants’ actions should be scrutinized under the well-established tort of misrepresentation, not the new variety designed by the majority under facts it finds unfair.
An exculpatory contract exempting a landlord from liability resulting from a condition on the premises does not apply if the damage is attributable to the landlord’s active negligence. Queen Insurance Company of America v. Kaiser, 27 Wis. 2d 571, 576, 135 N.W.2d 247 (1965). In the instant case, I see the defendants’ actions as passive negligence. They inadvertently omitted removing the six words regarding insurance in the exculpatory clause in a contract. By way of analogy, I note that passive negligence is insufficient to nullify an otherwise valid exculpatory clause in a lease. Id. at 577.
[***18] [*218] I would stress that, absent a statute to the contrary, the generally accepted rule is that contracts against liability for negligence are valid except in those cases where a public interest is involved. 57 Am. Jur. 2d Negligence sec. 23, 366 (1971); W. Prosser, Handbook of The Law of Torts, sec. 68, 442 (4th ed. Hornbook Series 1971); 2 Restatement (Second) of Contracts sec. 195, 65 (1981); Restatement of The Law of Contracts sec. 575, 1080-81 (1932); 15 Williston on Contracts sec. 1750A, 141-46 (3d ed. Jaeger, 1972). See also Abel Holding Co., Inc. v. American District Telegraph Co., 138 N.J. Super. 137, 153-54, 350 A2d 292 (1975). “The justification for upholding the validity of such clauses stems from the concept of freedom of contract, grounded in state and federal constitutional provisions.” College Mobile Home Park & Sales, Inc. v. Hoffmann, 72 Wis. 2d 514, 516-17, 241 N.W.2d 174 (1976). See Queen Insurance Company of America v. Kaiser, 27 Wis. 2d 571, 575, 135 N.W.2d 247 (1965) (exculpatory clauses are not uncommon and are a proper subject of the bargain of the parties). While the majority is correct in stating that exculpatory [***19] clauses should be strictly construed against the drafter in cases of ambiguity, the contract in the instant case is not ambiguous, [*219] and the strict construction rule is inapplicable because the intent of the parties is clear. See Johnson v. Prange-Geussenhainer Co., 240 Wis. 363, 375, 2 N.W.2d 723 (1942) (rule of strict construction should not be invoked to defeat clear intent of the parties). Exculpatory contracts have not been statutorily prohibited in this state, and I believe this court should endeavor to uphold them when they result in a bargained for exchange and do not violate public policy. “The mere fact that a contract is somewhat harsh or unfair in its operation does not excuse performance, and the court cannot create contractual obligations which are not based on the expressed intention of the parties.” Abel Holding Co., Inc. v. American District Telegraph Co., 138 N.J. at 155.
The court of appeals reached the following conclusions in holding that the exculpatory contract in the instant case is readily distinguishable from the following types of contracts which are violative of public policy:
“(1) The contract arises out of a business generally thought [***20] suitable for public regulation, e.g., a common carrier or a public utility. See Western Union Telegraph Co. v. Nester, 309 U.S. 582 (1940); Fox, 138 Wis. at 653, 120 N.W. at 401. Cf. Duszynski, 32 Wis. 2d at 468, 145 N.W.2d at 738.
” [**181] (2) The party seeking exculpation is engaged in performing a service of great importance to the public, e.g., places of public accommodation, such as retail stores, restaurants and the like. When such public accommodation is a matter of practical necessity for some members of the public, these businesses become subject to a public interest. New York Central Railroad Co. v. Lockwood, 84 U.S. (17 Wall.) 357, 378-82 (1873);
“(3) The party seeking exculpation holds itself out as willing to give reasonable public service to all who apply, e.g., public warehousemen, common carriers and innkeepers. See Lombard v. Louisiana, 373 U.S. 267 (1963) (Douglas, J., concurring), and
“(4) As a result of the essential nature of the service in the economic setting of the transaction, the party invoking [*220] exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks [***21] the services and confronts the public with a standard contract. As a result, the person is placed under the control of the seller subject to the risk of carelessness, e.g., hospital-patient contracts where a member of the public, despite his or her economic inability to do so, faces the prospect of a compulsory assumption of the risk of another’s negligence. See Tunkl, 60 Cal.2d at 102, 383 P.2d at 447, 32 Cal. Rptr. at 39.” (Emphasis in original.)
See also W. Prosser, supra at sec 68, 442-44; Restatement (Second) of Contracts, supra at sec. 195 comment a; supra, at 213.
The majority, acknowledging that the instant case does not fall within these four well-recognized policy ambits denying enforceability, seemingly dismisses the legal parameters to unenforceability by advocating that courts define public policy using “community common sense and common conscience.” Supra, at 213. The majority proceeds to shift the emphasis of its opinion to the false statement concerning the insurance policy in the exculpatory clause, holding that such a misstatement vitiates the integrity of the bargaining process, smacks of over-reaching and lack of good faith, [***22] and of oppression to the party executing the release. Supra, at 214, 215.
I question what the majority’s position would be if an exculpatory contract contained a misstatement that a defendant had no insurance when the agreement was signed but where the policy had lapsed at the time of the accident. Furthermore, the majority declares that, because of the existence of an insurance coverage misstatement in the contract, a defendant is not relieved from the liability excused by the terms of the contract. The liability thus imposed is not limited to the face value of the insurance policy, and accordingly a defendant would be obliged to pay that portion of a judgment which [*221] exceeded the insurance coverage. Imposing this burden on a defendant is clearly a result contrary to the express terms of such an exculpatory contract.
Even though I believe that the misstatement in the instant case did not have a determinative effect on the parties bargained for exchange (i.e., I believe the record clearly reveals that Bonnie Merten would have signed the release with or without the disclaimer of insurance), the majority’s interpretation of the misrepresentation should be analyzed [***23] under the tort of misrepresentation, not expansion of the policy limitations on the enforceability of exculpatory contracts because the plaintiff fails to satisfy the requisites of the applicable tort.
I would note that exculpatory clauses are routinely inserted in contracts dealing with recreational activities, such as horseback riding.
“Sports or recreational events, whether there be actual participation or vicarious enjoyment have not as yet in any court or by any legal authority been recognized as a business or facility having a public-service character. . . . All of the above events are leisure pursuits, many of which naturally involve a certain amount of risk. In Riding Academy v. Miller, [**182] (1934) 127 Ohio 545, 189 N.E. 647, the court noted that a person who hires a riding horse must be prepared for the ordinary risks involved.”
Duszynski v. B & T Riding Academy, Inc., 32 Wis. 2d 464, 468, 145 N.W.2d 736 (1966). In the instant case Bonnie Merten desired to take riding lessons, and I believe she intended to contract away her rights and remedies for future negligence on the part of the defendants in exchange for the lessons. See State Farm Fire [***24] & Casualty Co. v. Home Insurance Co., 88 Wis. 2d 124, 129, 276 N.W.2d 349 (Ct. App 1979) (lessee not in a position of either signing a contract or having no place to go). “Freedom of contract is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.” Rawlings v. Layne [*222] & Bowler Pump Company, 93 Idaho 496, 499, 465 P2d 107, (1970). There is nothing in the facts of the case “to suggest that the parties were not on equal footing or that they did not deal at arm’s length. ‘There is no rule of public policy which denies effect to their expressed intention, but on the contrary, as the matter lies within the range of permissible agreement, the highest public policy is found in the enforcement of the contract which was actually made.'” Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U.S. 291, 294 (1932) (emphasis added).
The majority correctly notes that “courts [must] examine the facts and circumstances of each exculpatory contract with special care to determine whether enforcement of the exculpatory contract in the individual case contravenes public policy.” Supra, at 211 (emphasis added). The majority [***25] concludes that a proper judicial inquiry focuses on whether a misstatement in an exculpatory contract would be relevant to a reasonable person (an objective standard). I believe that, where the plaintiff in the individual case declares that the misstatement was not of consequence to him, then the reasonable person test is not applicable. I would only apply a reasonable person test when the record does not reveal the effect of the misstatement upon the individual plaintiff. Accordingly, because Bonnie Merten declared that she signed the release regardless of the insurance disclaimer, I do not believe that the exculpatory contract in the instant case was unfair or violative of public policy, and I would uphold it. See College Mobile Home Park & Sales, Inc. v. Hoffman, 72 Wis. 2d at 519 (courts must examine the actual effect of the particular release clause upon the parties).
I believe the majority errs in concluding that the misstated insurance disclaimer went to the essence of the contract and under notions of community common sense changed the bargain between the parties. I believe the [*223] plaintiff has failed to prove a case of misrepresentation, principally [***26] because she did not rely upon the misstated insurance disclaimer in signing the contract. I, unlike the majority, would refuse to expand previously well-established public policy principles to preclude enforceability of this agreement. Accordingly, I dissent.

Moss Quote 7/1/11

Spend the time training and being trained and then spend more time practicing that training and less time worrying about the training and what will probably never happen.

A Church wants to apologize and the insurance company for the church panics. What else would you expect a church to do?

The basic reason why we have lawsuits is attorneys won’t let you do what is right? We are trained that way.

This is a great article Church abuse cases and lawyers an uneasy mix, published in USA Today. The basic issue is the church had an employee sexually molest members of the church. The church wanted to apologize. The attorney for the church’s insurance company wrote the church a letter stating they church should not do that. Actually, it was a pretty sternly written warning.

Do not make any statements, orally, in writing or in any manner, to acknowledge, admit to or apologize for anything that may be evidence of or interpreted as (a suggestion that) the actions of Vienna Presbyterian Church … caused or contributed to any damages arising from the intentional acts/abuse/misconduct
The next day the church sent a letter to its members and that Sunday the minister spoke of the issues during the service.

However, it was this quote in the article from an “expert” in church abuse cases that sent me cringing/laughing/yelling at the paper.

“The church is in the business of forgiveness, of being forthright and open and truthful, but that often creates liability in a world that’s adversarial, in the judicial world,” McCalmon says.

I have one thing to say to Mr. McCalmon. Prove it! Most states have a statute that says if you apologize for your actions it can’t be used in court to prove you are liable. Colorado’s statute C.R.S. § 13-25-135. Evidence of admissions – civil proceedings – unanticipated outcomes – medical care is limited to medical care, but it is a great statute that allows physicians to say they were sorry about the outcome without having to worry about the legal ramifications.

13-25-135. Evidence of admissions – civil proceedings – unanticipated outcomes – medical care

(1) In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim and which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

(2) For purposes of this section, unless the context otherwise requires:
(a) “Health care provider” means any person licensed or certified by the state of Colorado to deliver health care and any clinic, health dispensary, or health facility licensed by the state of Colorado. The term includes any professional corporation or other professional entity comprised of such health care providers as permitted by the laws of this state.
(b) “Relative” means a victim’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister, or spouse’s parents. The term includes said relationships that are created as a result of adoption. In addition, “relative” includes any person who has a family-type relationship with a victim.
(c) “Representative” means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient’s agent.
(d) “Unanticipated outcome” means the outcome of a medical treatment or procedure that differs from an expected result.

What does it prove?

It only proves people are sorry, not that they are liable and not that they owe someone any money. The apology in this case was because the church let people down and did not do its job as a church.
You should read the article it is well written and information. Post a comment on how you would have acted?

Follow the church?
Follow the insurance company’s lawyer?

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To Celebrate Park and Recreation month NRPA is having a flash mob contest.

Park Rangers dancing in a group……….

Park and Recreation Month is Here.  Let’s Get the Party Started!

Today is the official start of Park and Recreation Month—are you ready to “Rock Your Park?”  One way to kick off the month is to demonstrate the power of parks and recreation through NRPA’s “Rock Your Park” Flash Mob Contest!
It’s simple… any group (minimum of 10 participants) can visit a park or recreation facility and demonstrate the “power of parks” through an activity including music, physical activity, exercise, dance, chanting, etc. Then, post your Flash Mob video on YouTube and complete NRPA’s official entry form.  NRPA will choose one park and recreation agency and one non-agency group as winners, and announce the results on August 12, 2011!
So polish off your dancing feet and get your park dance on—enter the NRPA “Rock Your Park” Flash Mob Contest today!

Click Here for Official Flash Mob Contest Rules

What do you think? Leave a comment.
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Happy July 4th

Petzl Recall for Replacement: GRIGRI 2

Concerns all GRIGRI 2’s (D14 2O, D14 2G, D14 2B) with the first five digits of the serial number between 10326 and 11136

Background

Petzl has discovered that exerting excessive force on the fully extended handle of the GRIGRI 2 can cause internal damage, such that the GRIGRI 2 handle may become stuck in the open position, as pictured in Figure 1 below.

Petzl Response

Because the safety of our users is our primary concern, as a precautionary measure Petzl has decided to take the following actions:

-Ask users to immediately stop using all GRIGRI 2’s with the first five digits of the serial number between 10326 and 11136.
–Recall all affected GRIGRI 2’s and replace with new, revised versions. Petzl will pay for all shipping costs to complete this replacement.
-Increase the mechanical strength of the handle on all GRIGRI 2’s from serial number 11137 onward.
-Begin shipping replacement GRIGRI 2’s immediately. Users will receive replacements in the same order they return their old units to Petzl. 

Every one of us here at Petzl is committed to resolving this issue as quickly and efficiently as possible. Thank you for your cooperation and support.

Visit http://www.petzl.com for complete and updated information.

When the handle is stuck in the position shown in Figure 1, the assisted braking function is disabled. A damaged GRIGRI 2 in this configuration will function similarly to a manual belay device (e.g. tube-style device).

When using a damaged GRIGRI 2 with the handle stuck in the open position, failure to control the braking side of the rope will dramatically increase the risk of an uncontrolled descent, possibly resulting in injury or death. A GRIGRI 2 with a damaged handle must be immediately retired from service.

Please note that failure to control the braking side of the rope is a misuse of the GRIGRI 2 under any circumstance (See the GRIGRI 2 Technical Notice).
 
As of June 20, 2011, seven damaged GRIGRI 2 units have been returned to Petzl through our worldwide distribution network. Petzl has no knowledge of any accidents resulting from a damaged GRIGRI 2 handle.

If you have a GRIGRI 2 (D14 2O, D14 2G, D14 2B) with the first five digits of the serial number between 10326 and 11136, stop use immediately and contact Petzl America to initiate an exchange.

 
What do you think? Leave a comment.
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Eldorado Climbing Walls is hiring!

Eldorado Climbing Walls is Hiring again- this time for Trublue Auto Belays. We are looking for 3 positions:

-Manufacturing Manager/Industrial Designer

-Mechanical Engineer

-Customer Service

Descriptions can be viewed at: http://eldowalls.com/contact-us-2/careers/

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There is a test to determine if you are a thrill seeker.

I have an easier test. Have you ever said “Watch this!”

The Zuckerman-Kuhlman Personality Questionnaire was created to determine if you are a sensation seeker.
The test questions are:

I like to have new and exciting experiences and sensations even if they are a little frightening.
I like doing things just for the thrill of it.
I sometimes do “crazy” things just for fun.
I sometimes like to do things that are a little frightening.
I enjoy getting into new situations where you can’t predict how things will turn out. 
I’ll try anything once.
I prefer friends who are excitingly unpredictable.
I like “wild” uninhibited parties.
I would like the kind of life where one is on the move and traveling a lot, with lots of change and excitement.
I am an impulsive person.
I like to explore a strange city or section of town by myself, even if it means getting lost.
I would like to take off on a trip with no preplanned or definite routes or timetables. 
Before I begin a complicated job, I make careful plans.
I very seldom spend much time on the details of planning ahead.
I tend to begin a new job without much advance planning on how I will do it.
I usually think about what I am going to do before doing it.
I often do things on impulse.
I often get so carried away by new and exciting things and ideas that I never think of possible complications.
I tend to change interests frequently.

Go Here to take the test and see if you area sensation seeker.

What do you think? Leave a comment.

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Woman suing because rocks fell on her….in the woods.

Suit claims City of Boulder knew that rocks fall.

Really.

See Lawsuit: City knew of Boulder Falls danger before woman was injured

What do you think? Leave a comment.

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California case holds the Federal Government is not liable for the acts of wildlife

Rubenstein, v. United States of America, 488 F.2d 1071; 1973 U.S. App. LEXIS 6958

Hay, Utah, have you read this case?

In a very short and simple opinion the Ninth Circuit Court of Appeals held that the National Park Service (NPS) and the United States are not liable for injuries caused by attacks by wild animals.

The plaintiff had attempted to stay in a lodge at Yellowstone National Park. Unsuccessful in that, he decided to camp in a partially lighted area near the lodge. During the night he realized that his “tent had been invaded by a grizzly bear.” He suffered bites on both legs as he tried to get away.

The lower court dismissed his case and he appealed.

So? Summary of the case

The plaintiff sued under the theory that the attack by a bear was foreseeable by the government and not foreseeable by him; therefore because the government had failed to adequately warn him of the dangers, the government was liable. The lower court dismissed because his claim did not prove a negligent act on the part of the government.

The Federal Appellate Court agreed with the lower court and dismissed the case. The plaintiff had failed to make a claim under the Federal Tort Claim Act. When suing the Federal Government, the owner of the National Parks, the claim must fit within the requirements of the Federal Tort Claims Act.

This means that the Federal Government, like many state and county governments cannot be sued except for specific instances that fit within exact parameters allowed by the law. Here, the Federal Tort Claim Act did not support, consequently allow, the suit by the plaintiff.

The court also found that the plaintiff

…had been fully warned, in writing, of the dangers he might encounter from the presence of animals, including bears, in the park. Furthermore, Rubenstein himself testified that he had read certain government brochures and that he recalled their warning that the park was populated by wild, dangerous, unpredictable animals.

The appellate court also found the cost to the Government of maintaining the parks would be increased if you could sue for injuries from animals. More likely the United States would be extremely reluctant to establish parks knowing they could be sued every time an animal attacked.

[There would be no parks in Minnesota, mosquito based lawsuits would overcome the legal system.]

So Now What?

This case differs from the recent Utah case were the judge awarded almost $2 million dollars for the death of a child from a bear because of the information the plaintiff had received in advance and because the plaintiff knew bears were wild, dangerous and unpredictable. In Utah, the child and his parents claimed they did not understand bears were dangerous or that there was a dangerous bear in the area. (Both seem to be stupid arguments to me. All bears are dangerous, that is why we don’t keep them as pets.)

The issue then becomes once you know there are dangerous wild animals around, you must warn people of the dangers. We cannot post a sign every place where wild animals interact with the human population. There would be signs on every street corner in Boulder and Golden Colorado warning of every animal. (Minnesota would be closed because of mosquitoes!)

We have to establish the knowledge in our population and in our courts the idea that wildlife is called that for a reason.

What do you think? Leave a comment.

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Rubenstein, v. United States of America, 488 F.2d 1071; 1973 U.S. App. LEXIS 6958

Rubenstein, v. United States of America, 488 F.2d 1071; 1973 U.S. App. LEXIS 6958
Burrel Rubenstein, Appellant, v. United States of America, Appellee
No. 72-2022
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
488 F.2d 1071; 1973 U.S. App. LEXIS 6958
November 19, 1973
PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of California.
JUDGES: Aldrich, ^* Ely, and Wallace, Circuit Judges.
* Honorable Bailey Aldrich, Senior United States Circuit Judge, Boston, Massachusetts, sitting by designation.
OPINION BY: PER CURIAM
OPINION
[*1072] This appeal is from a judgment, in favor of the Government, in a suit brought by Rubenstein under the Federal Tort Claims Act. 28 U.S.C. §§ 1346, 1402, 2671-2680.
Rubenstein and his son, along with a friend of the latter, made a visit to the Yellowstone National Park. Upon arriving there, they found no room accommodations available and decided to camp for the night in a partially lighted area near the lodge wherein they had unsuccessfully sought accommodations. The youths slept in the open, and Rubenstein at first alone, slept in a tent. During the night, Rubenstein was awakened by a disturbance and, fully aroused, determined that his tent had been invaded by a grizzly bear. In attempting to flee, Rubenstein was bitten by the bear on both of his legs, and his suit for damages for his personal injuries eventually followed.
Here, Rubenstein makes two contentions [**2] which, in effect, may be briefly summarized as follows: (1) That the unprovoked attack by the bear at the place in question was not reasonably foreseeable by him, was foreseeable by the Government, and that the Government failed to give him adequate warning, and (2) that the District Court applied an improper standard in reaching its dispositive conclusion. ¹
1 The court concluded “that actionable negligence is not shown on the part of the defendant . . . .” This constituted, in effect, a finding that Rubenstein had failed to prove, by a preponderance of the evidence, that the Government was negligent.
Rubenstein’s second argument is based upon the fact that the District Court, in its opinion, generally remarked that if the Government should be held liable in suits such as that brought by Rubenstein, the cost to the Government of maintaining national parks would be greatly increased and, moreover, would promote a reluctance on the part of the Government to establish and maintain recreational areas. Rubenstein’s [**3] argument has no merit. The challenged remarks made by the court do not establish that it applied improper legal standards relating to negligence. In fact, the court’s opinion, considered as a whole, clearly reflects that the court was knowledgeable as to the issues involved and the law to be applied in resolving them. We interpret the remarks of [*1073] which Rubenstein complains as merely the observations of the court as to what could happen should the court impose a higher standard than that existing under established law.
As to Rubenstein’s first contention, there was evidence that, before entering the park, Rubenstein had been fully warned, in writing, of the dangers he might encounter from the presence of animals, including bears, in the park. Furthermore, Rubenstein himself testified that he had read certain government brochures and that he recalled their warning that the park was populated by wild, dangerous, unpredictable animals. The District Court’s critical determinations are supported by substantial evidence, and its judgment is therefore AFFIRMED.

Rick Cables accepts job as head of new Colorado Division of Parks and Wildlife.

Wow, this is very good for Colorado!!

STATE OF COLORADO
John W. Hickenlooper Governor
Mike King Executive Director

Department of Natural Resources
1313 Sherman Street, Room 718
Denver, Colorado 80203
Phone: (303) 866-3311
Fax: (303) 866-2115
www.dnr.state.co.us

Monday, June 13, 2011

Rick Cables named director of new Colorado Division of Parks and Wildlife Rick Cables, Regional Forester for the U.S. Forest Service’s Rocky Mountain Region, has been named the director of the newly created Colorado Division of Parks and Wildlife.

Cables will oversee the new division and its 880 employees beginning in July. The new division unites the existing Colorado Division of Wildlife and Colorado State Parks, a merger approved by state lawmakers and signed into law June 6 by Governor John Hickenlooper.

“Rick Cables brings an accomplished career of conservation success, much of it in the West, to this critical role leading our new Parks and Wildlife division,” said Mike King, executive director of the Colorado Department of Natural Resources. “We are fortunate to have a person with his conservation values, management talent and wealth of experience with western landscapes taking the helm of this new agency.”

“I feel privileged to be joining the remarkable professionals of the newly created Colorado Division of Parks and Wildlife,” Cables said. “Their passion, professionalism and dedication to Colorado’s wildlife and state parks make our wonderful state even more special. I’m very excited to pursue this new challenge. To my friends in the U.S. Forest Service, an agency that I love, I thank you for the experience and look forward to advancing Colorado’s conservation heritage.”

Cables has been the Regional Forester of the Rocky Mountain Region since 2001. As Regional Forester he has been responsible for the administration of over 22 million acres in 17 national forests and 7 national grasslands, and cooperative efforts with state and private landowners in Colorado, Kansas, Nebraska, South Dakota and eastern Wyoming.

A Pueblo native, Cables graduated from Northern Arizona University Forestry School in 1976. After serving on several National Forests in New Mexico and Arizona, he served two years in the Washington Office before he was selected to attend the U.S. Army War College in Carlisle, Pennsylvania in 1989-1990.

In 1990 Cables was promoted to Forest Supervisor of the White Mountain National Forest in New Hampshire and Maine. In 1995 he became the Forest Supervisor of the Pike and San Isabel National Forests and Comanche and Cimarron National Grasslands in Colorado and Kansas.

Before becoming Regional Forester of the Rocky Mountain Region, Cables was Regional Forester of the Alaska Region, covering the Tongass and Chugach National Forests.

Rick and wife, Cindy, have three children; Stewart, Wesley and Natalie.

Does being safe make us stupid? Studies say yes.

If we think we are safe, we ignore the obvious dangers around us.

In an interesting article, Bike Helmets Might not be so Good at Saving Lives a blogger has looked at several articles written about bicycle helmets and what has occurred.

Generally, the studies he quotes show that helmet use has gone up, and ridership has gone down. Head injuries or cycling fatalities have not decreased to the same percentage. Consequently, it is easy to see that wearing a helmet does not mean you are safer with cycling.

However, it is this quote that made me think.

Individual cases do not prove anything. Statistics do.

He’s right. Whenever I quote statistics someone argues that they know of a case where…….. Two things generally happen. If you track down the case you find it either did not happen the way it was described, or it was not near as bad as described.

The world is not a first aid practical exam. Unless you are working on a ski patrol, the chances of you using your wilderness first aid knowledge are slim nil and none. Yet we justify those one in a million situations to prove we need helmets, EMT’s in the wilderness, and padded trees.

We also have the media, of which I hopefully am included, that is making the information much more available to all of us. I post disaster and fatality information on Facebook. So now that I think about it, I’m contributing to the problem.

Think

We need to engage our heads first when thinking safety and not just react. We need to engage our heads when we talk statistics and not fall back on wildly inflated third hand stories. We need to use our heads to protect our heads rather than rely on a factory in china.

What makes this really stupid is it comes from the land of no one wears a hockey helmet.

What do you think? Leave a comment.

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Remember the Vail Hit and Run?

Remember the story about the hit and run which almost killed a cyclist in Vail? See  Vail Hit and Run Post 1 and Bob Roll is Boycotting Vail Colorado. Well the defendant in that case who got off without really receiving a penalty for this actions was terminated a few weeks ago by his employer.
Thanks anonymous source.