Definitions

Posted: April 6, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

An ongoing project

I’m going to try and put legal definitions for the outdoor recreation and adventure travel industry online. I want to accomplish a couple of goals. The first will be to provide a place to quickly find an answer if you do not understand a term I’m using in an article. The second is to start to clarify some of the different terms that are used in our industry.

This is a work in progress and this is a very small start. Hopefully it can grow and expand to provide a benefit to all.

DEFINITIONS

A

ACCIDENT: That occurrence in a sequence of events which usually produces unintended injury, death or property damage.

ACCREDITATION: Accreditation is sought after by educational institutions to prove academic of ability to educate. Accrediting organizations are themselves subject to ranking criteria. Harvard is accredited by a different organization then a small community college. Accreditation reviews the qualifications of the instructors, physical plant, instructor/student ration, number of books in the library and numerous other criteria.
Title or paperwork given to a program or company, which states the program or company on the date of the accreditation, meets the levels of performance required by the organization, paid to supply the accreditation.
Accreditation is not a defense in and of itself. Accreditation is evidence the defendant knew and operated above the standard of care.

ACT OF GOD: Hail, Lighting, Wind, Tornadoes, Hurricanes, and in some cases floods are acts of God. If the plaintiff injury was due to an “Act of God”, the Defendant still pays, because most juries believe someone here on earth must be financially liable for the acts of God.
An act occasioned by an unanticipated grave natural disaster.

ADVENTURE TRAVEL: An activity that takes place in a distinctive, remote or exotic location, mostly outdoors, generally including a high degree of participation by those involved (Kim Swanton, Carlson Marketing Group, 1990).

ALLOCATION OF RISK: A written document that shifts the burden of damages and or insurance from one party to another party. Allocation of Risk documents includes Releases, Waivers, Covenant’s Not to Sue, etc.

APPELLATE COURTS: Courts above the trial court that only look at the record of the trial court to determine if the law was broken or that the jury’s decision was so out of line that it made absolutely no sense. (Note: New York uses a different terminology for its courts.)

ARBITRATION: The process for resolution of dispute by one or more private, unofficial (non-governmental) persons whose selection is agreed to by the parties to the dispute, or appointed by a neutral party, which is outside of the judiciary processes (the courts). As used in this book, and as typically used, the word implies the use of the rules and regulations of the American Arbitration Association (AAA).
Arbitration is similar to a court proceeding. However, the rules and requirements are not as strict and involve a shorter time. Arbitration clauses in contracts should be considered carefully. They can be an effective and inexpensive way to end litigation. Arbitration may also defer some lawsuits because the possibility of high damages is removed.

ASSUMPTION OF THE RISK: Assumption of Risk by a person shall be considered by the trier of fact in apportioning negligence pursuant to section Colorado Revised Statutes 13-21-111. A person assumes the risk of injury or damage if he voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved. In any trial to a jury in which the defense of assumption of risk is an issue for determination by the jury, the court shall instruct the jury on the elements as described in this section.
Assumption of Risk is a defense when the injured party has sufficient knowledge to understand and appreciate the risks he undertook. As such the injured party will be denied a recover for damages by the fact finder.
Defense to a charge of negligence, where the one injured is held to assume the risk of injury from a known and appreciated danger by proceeding anyway.
Assumption of Risk is the only defense that can be used against an action by a minor.
Assumptions of Risk documents are the only documents that can be used by concessionaires or permitees on National Park Service or Forest Service lands.

ATTRACTIVE NUISANCE DOCTRINE: Landowner liability to children if a child is attracted to the land, a structure or the land. Applies to lakes, playgrounds, and fun things. Liability may not attach until the landowner knows of the attractive nature of the thing, but once known the liability is there.
(1) The place where the condition is found must be on land which the owner knows or has reason to know that children are likely to trespass; (2) the condition must be one which the occupier, (landowner or tenant), should recognize as involving an unreasonable risk of harm to children; (3) the child, because of immaturity, either does not discover the condition or does not in fact appreciate the danger involved; and (4) the utility to the possessor of maintaining the condition must be slight as compared with the risk to the children involved.
Examples would be climbing walls, ropes courses or fitness courses. Because they look fun, and kids are attracted to them.

B

BREACH: An intentional or unintentional violation of an obligation, contract, or promise.
Failure to perform a duty, promises or warranty.

C

CASE LAW: Law based on decisions of the Appellate, Federal, and Supreme Courts. You often hear about cases that are frightening, however lawyers ignore them because they are not case law. A lower court or trial court made the decision and that does not hold any weight or affect by any other court. It is only after an Appellate Court or the case has been appealed once that the decision has any weight or bearing.

CERTIFICATION: Title or paperwork given to an individual, that states the individual has completed training or has skills to a level required by the organization providing the certification. “Certification” given by an organization or business without legal authority has no value in a defense of a lawsuit except as proof of education.

COMMON LAW: Law developed from customs, traditions, religion, and the king. Not laws created by legislature.

COMPARATIVE NEGLIGENCE: The negligence of all of the parties is apportioned to all parties. If the Plaintiff is 40% liable and the Defendant is 60% liable and the Plaintiff is awarded $100,000.00 in damages. The damages are reduced by 40% to $60,000.00.
If the Plaintiff is 75% liable and the Defendant is 25% liable, the Defendant wins the trial.
The risk assumed by the Plaintiff is a major factor in determining the Plaintiff’s degree of negligence and reward.

COMPARATIVE RISK: An expression of the risks associated with two (or more) actions leading to the same goal; may be expressed quantitatively (a ratio of 1.5) or qualitatively (one risk greater than another risk).
Any comparison among the risks of two or more hazards with respect to a common scale. [S. L. Brown]

CONSENT: Informed consent of an adult is required before any medical care can be performed. Informed consent means the patient is advised of the problem and the proposed treatment, possibly what to expect if no treatment is given. Implied consent is recognized in emergency situations where the patient if conscious and sensible would have given their consent. Informed consent is presumed from the parent if the patient is a minor and the parent is unavailable.

CONSIDERATION: Any benefit given to one by another as an inducement to enter into a contract. Consideration does not have to be money, but money is the consideration in most contracts.

CONTRACT: An agreement between two or more parties involving a promise or promises, which the law will enforce. Requires consideration and a meeting of the minds.
 
CORPORATION: An artificial entity created or recognized by a state, acknowledging an association of one or more people, which is separate and distinct from those people. Generally, individual shareholders enjoy the protection of limited liability in that each is liable and “at risk” only to the extent of his investment to purchase the stock of the corporation.

D

DAMAGE: Damage is the severity of injury or the physical, functional, or monetary loss that could result if control of a hazard is lost.

DAMAGES: Monetary compensation paid to a person who has suffered loss, detriment, or injury to his person, property, or rights through an act or omission of another.
A dollar amount assigned to the injury of the Plaintiff.
Compensation for loss or injury suffered.
The common denominator that has been deemed the solution to all problems.

DANGER: Expresses a relative exposure to a hazard. A hazard may be present, but there may be little danger because of the precautions taken.

DE MINIMIS RISK: From the legal maxim “de minimis non curat lex” or “the law is not concerned with trifles.”

DEATH FROM ACCIDENT: A death which occurs within one year of the accident.

DECEDENT: A dead person.

DEFENDANTS: You.

DEPONENT: A person who gives testimony under oath, which is then, typically, put in writing. (See also Affiant).

DEPOSITION: The laying down or precipitation of mineral matter that may eventually form rocks or that creates secondary land forms such as deltas and sand dunes.
The transfer of substances in air to surfaces, including soil, vegetation, surface water, or indoor surfaces, by dry or wet processes. [S. L. Brown]

DISABLING INJURY: An injury causing death, permanent disability, or any degree of temporary total disability beyond the day of the accident.

DONEE: A person who receives a gift from another.

DONOR: A person who makes a gift to another.

DUE CARE: Prudent course that should be taken by a reasonable individual or business to avoid the chance of injury to another.

DUTY OF CARE: A legal duty you owe to someone. In most states, you owe a duty to the public to clean your sidewalk of snow. You breach that duty if you do not clean your sidewalks of snow.
In most states, there is no duty of care to rescue another person unless you are the reason the person is in peril. Once you respond or start to give care you cannot stop.
Persons in your care or paying you a fee for care creates a Duty of Care in you.

DUTY: A Moral obligation, action or conduct that required by one’s profession or position to do or not do something or some act.

E

ECOTOURISM: Purposeful travel to natural areas to understand the cultural and natural history of the environment taking care not to alter the integrity of the ecosystem, while producing economic opportunities that make the conservation of natural resources beneficial to local peoples (The Ecotourism Society, 1990).

ENCUMBRANCE: A claim, charge, lien or interest in property, especially real estate.
The connected set of environmental media through which a potentially harmful substance travels from source to receptor. [S. L. Brown]

ESTOPPEL: A legal doctrine which holds that one should be stopped from denying, disavowing or repudiating one’s own statements or acts.

EXEMPLARY DAMAGES: Damages assessed to punish the defendant, to make an example of them so others will not follow his example. Same as Punitive Damages

EXPECTED LOSS: The quantity obtained by multiplying the magnitude of health or environmental effect loss by the probability (or risk) of that loss and adding the products. The expected loss is the average loss over a large number of trials; one must reflect on the appropriateness of its use in cases for which there will be only one, or a few, trials.

EXPOSURE: The time integral of the concentration of a toxicant which is in the immediate vicinity of various ports of entry (such as lung, GI tract and skin).
Qualitatively, contact between a potentially harmful agent and a receptor (e.g., a human or other organism) that could be affected. [S. L. Brown]

EXPRESS WARRANTY: Arises from written or oral statements asserting the quality of goods is for a particular purpose

F

FACT FINDER: In a jury trial, the jury is the fact finder. In a trial to the court, the judge is the fact finder. The fact finder determines who is telling the truth, who is lying, what evidence to believe and what to ignore, after it has been allowed in by law.

FORCE MAJEURE: A force, event or occurrence, which is beyond the control of the parties to a contract, such as a fire or strike.

FORESEEABILITY: If the actions of the Plaintiff should have been or were known as something that would or could happen, the acts of the Plaintiff were foreseeable to the Defendant. The defendant is held to have knowledge of the Plaintiff’s foreseeable acts.
Foreseeability is foresight (not hindsight, which is proximate cause,)
Example: Little kids run to playgrounds. (To prove this call McDonald’s.)
A Defendant can be held liable for an injury of the thing that caused the injury was foreseeable, even thought the Defendant knew of the thing.
Insurance, third party or risk management consultants are beneficial in examining a business and identifying “foreseeable” risks.

G

GOOD SAMARITAN LAW: To encourage rescue, most states have laws that say if you stop and give assistance you can not be held liable for the assistance you provide. The protection extends to simple carelessness. There is no Good Samaritan protection for gross negligence. The care must be voluntary and performed at an emergency.
Example: Colorado Good Samaritan Law: Colorado Revised Statute 13-21-108. Persons rendering emergency assistance exempt from civil liability.
(1) Any person licensed as a physician and surgeon under the laws of the state of Colorado, or any other person, who in good faith renders emergency care or emergency assistance to a person not presently his patient without compensation at the place of an emergency or accident, including a health care institution as defined in section 13-64-202 (3), shall not be liable for any civil damages for acts or omissions made in good faith as a result of the rendering of such emergency care or emergency assistance during the emergency, unless the acts or omissions were grossly negligent or willful and wanton. This section shall not apply to any person who renders such emergency care or emergency assistance to a patient he is otherwise obligated to cover.
(2) Any person while acting as a volunteer member of a rescue unit, as defined in section 25-3.5-103 (11), Colorado Revised Statutes, notwithstanding the fact that such organization may recover actual costs incurred in the rendering of emergency care or assistance to a person, who in good faith renders emergency care or assistance without compensation at the place of an emergency or accident shall not be liable for any civil damages for acts or omissions in good faith.
(3) Any person, including a licensed physician, surgeon, or other medical personnel, while acting as a volunteer member of a ski patrol or ski area rescue unit, notwithstanding the fact that such person may receive free skiing privileges or other benefits as a result of his volunteer status, who in good faith renders emergency care or assistance without other compensation at the place of an emergency or accident shall not be liable for any civil damages for acts or omissions in good faith.

GROSS NEGLIGENCE: An act or omission purposely committed by a person knowing the conduct was dangerous and whose conduct was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights or safety of others. C.J.I. 3d, Civ. 9:32

H

HOLD HARMLESS: An agreement between two or more parties where one party agrees to cover all of the losses, damages and costs of the other party for any damages they may incur. Very similar to an insurance policy.
Example: The school district signs a hold harmless agreement with your operation so that any parent who sues you for injuries to their child will be covered by the School District. The school district covers the cost of defending the litigation and paying any damages.
See Indemnify.

I

IMPLIED WARRANTY OF FITNESS: The product will do what it was represented to do. If you create equipment, products or goods used or sold to the public you are creating this warranty.

in loco parentis: The individual stands in the shoes of the parents. The individual or agency is charged with the parent’s rights, duties, and responsibilities. The individual and or agency must act as the “reasonably prudent parent” would from dangers, self-injury, and irresponsibilities.

INCUMBRANCE: See Encumbrance.

INDEMNIFICATION: An agreement where one party agrees to pay you for any damages or losses you may incur based on the contract. Similar to insurance contracts.

INDEMNIFY: The act of holding another not responsible for loss or damage. Also, the agreement to reimburse another for loss or damage from a third person’s act or refusal to act.

INHERENTLY DANGEROUS: An activity is inherently dangerous if there is (a) an existence of a high degree of risk of some harm to the person; (2)likelihood that any harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of commons usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which value to the community is outweighed by its dangerous attributes. (Restatement, Torts 2d § 519(1))

INTENTIONAL TORT: Intentional conduct resulting injury. (Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979)
An act which proximately causes an injury, the intent to injure and an injury

IRREVOCABLE: That which cannot be withdrawn, repealed, canceled, annulled or changed.

J

JOINT AND SEVERAL LIABILITY: Each defendant, no matter what there contribution to the injury or the cause is liable for the full amount of the damages. A defendant that pays the damages may have a cause against his co-defendant for contribution. Plaintiff can recover 100% of his damages from the rich person or deep pocket.

JOINT VENTURE: A voluntary agreement between two or more people to conduct business for profit in a specific business situation and for a limited or fixed period of time. Typically, a Joint Venture is managed by a “Venture Manager” or “General Partner” who is liable for losses, and one or more other investing partners, referred to as “Limited Partners,” each of whom is liable for losses only to the extent of his respective capital contribution to the Joint Venture.

JUDGMENT: The final decision of a court, which determines the rights and claims of the parties to a lawsuit.

JURISDICTION: In the legal sense, the authority by which courts hear and decide cases and exercise their legal authority. The term also is used to refer to the sphere of territorial range of authority (usually divided along political boundaries such as towns, cities, or states).

K

L

LAST CLEAR CHANCE DOCTRINE: If the Plaintiff puts himself in danger from which he cannot extract himself and the defendant seeing the plaintiff’s problem, and having the opportunity to save the plaintiff, fails to exercise ordinary care and extract the plaintiff, the defendant is liable for failing to exercise the “Last Clear Chance” to save the Plaintiff.

LIABILITY: comprehensives term referring to any and every hazard or responsibility.

LIQUIDATED DAMAGES: An agreed upon amount of damages (money) an injured party will be entitled to receive upon default or breach of an agreement by the other party, so that the injured party does not have to establish the exact amount of his actual damages in any subsequent lawsuit.

LITIGANT: A party to a lawsuit.

LOSS: an unplanned decrease in a property or other value which can be measured in dollars.

LOST DAY CASE: Injury severe enough the participant lost a day of the activity.

M

MALFEASANCE: The commission of some act which is positively unlawful

MISFEASANCE: Duty to conduct an activity with due regard for the rights of others, failure to do so is misfeasance.
There is a distinction between “nonfeasance” and “misfeasance” or “malfeasance.” This distinction is often of great importance in determining an agent’s liability to third persons. “Nonfeasance” means the total omission or failure of an agent to enter upon the performance of some distinct duty or undertaking which he has agreed with his principal to do; “Misfeasance” means the improper doing of an act which the agent might lawfully do, or, in other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons. “Malfeasance” is doing of an act which he ought not to do at all. (Desmarais v. Wachusett Regional School Dist., 360 Mass 591, 276 N.E. 2d 691, 693)

N

NEAR MISS INCIDENTS: Less than a reportable injury but could have easily been one; a close call; potentially dangerous situation were safety was compromised but did not result in injury; unplanned or unforeseen event; situation which involves an expression or relief whenever.

NEGLIGENCE PER SE: Negligence that violates the statute. There is no defense and liability is absolute. Negligence per se can also be applied to activities by statute.

NEGLIGENCE: The omission or failure to do something or to perform some act which a “reasonable man,” guided by ordinary considerations, would do in the same or similar circumstances.
Failure to exercise the standard of care which a reasonable person in the same or similar circumstances would exercise, and which causes an injury and damages.
A legal duty, a breach of that duty, injuries that are proximately caused by the Breach of the duty.
The failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do under same or similar circumstances. (C.J.I. 3d Civ. 9:4, Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954))

NONFEASANCE: Neglect of a duty. Nonperformance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty.

O

OBLIGEE: The person in whose favor some act or obligation must be performed by an Obligor.

OBLIGOR: One who is required to perform some act or obligation.

P

PARTNER: One who has formed a partnership with one or more others.

PARTNERSHIP: A voluntary agreement between two or more people or companies to conduct business for profit on a continuing basis as co-owners do. Profits as well as losses are to be shared proportionally and each partner (and his assets) is liable and “at risk” for any losses incurred by the partnership.

PARTY: A person or entity in a transaction, matter or proceeding who is obligated, as in a party to a contract, or is directly influenced by its outcome, as in a party (plaintiff or defendant) to a law suit.

PERSONAL PROPERTY: That which can be moved, as distinguished from real property, which is land.

PLAINTIFF: The injured party, the party filing a lawsuit.

PREMATURE DEATH: A death that occurs before statistical expectation, usually attributable to a specific cause, and usually referring to deaths statistically estimated in a population rather than to individuals.

PRIVILEGE: A legal principal where one party talking to a specific other party cannot disclose the substance or any of the conversation. A client has privilege with his attorney. The attorney can only reveal the substance of the conversation after receiving the client’s permission. The privilege is waived if another party hears the conversation. Privilege also can exist between documents exchanged with the lawyer and his client.
Privilege in some form exists between a client and his attorney, clergy, and doctor. Some states have additional privileges that may or may not standup in other states or other courts.

PROBABILITY: A probability assignment is a numerical encoding of the relative state of knowledge.

PROXIMATE CAUSE: The injury was a proximal result of the actions of the defendant. Proximate cause is hindsight, (Foreseeability is foresight).

PUNITIVE DAMAGES: Damages awarded by the finder of fact to punish the defendant in a criminal way for their acts. Damages that are beyond the damages incurred by the Plaintiff. Punitive Damages are not covered by insurance. See Exemplary Damages

Q

R

REAL PROPERTY: Land, as distinguished from personal property.

REALTY: See Real Property.

REASONABLE AND PRUDENT PROFESSIONAL: Standard of care of the reasonable and prudent professional. If you hold yourself out to be of certain training, education, skill or the like you must uphold the standard of care of the reasonable and prudent person with the same training, education, knowledge, or skill.
Example: A river guide will be judged with other river guide skills, not the general public.
The level of action or inaction that a reasonable and prudent person would exercise in the same situation.
Conduct in violation of a safety rule, if either deliberate, willful, or with reckless disregard for another’s safety (malice) is a violation of the reasonable and prudent standard.

RECREATE: The act of refreshing oneself mentally or physically.

RECREATION LAW: A body of law which is defined by the type of activity rather than the nature of the legal issues presented.
 The body of law which is defined by the type of activity rather than the nature of the legal issues presented.

RELATIVE RISK: The ratio of the rate of the disease (usually incidence or mortality) among those exposed to the rate among those not exposed.

RELEASE: The giving up of a right, claim, or privilege, such as the right to sue, which one has or may in the future have against another. A “General Release” is the giving up of any and all rights, claims or privileges against another.

RELEASEE: One who pays money or gives other consideration in order to be released.

RELEASOR: One who gives a Release in exchange for money or other consideration.

RESCUE, DUTY TO: Duty to Rescue means employing all reasonable means to save someone from injury which you had no hand or responsibility in causing. Once rescue is started, however, several professions have a duty to continue until relieved under state law. Emergency Medical Technicians, Paramedics, Nurses, Doctors and some outdoor Guides have this legal responsibility. Unless required by state law, there is no duty to rescue.
There is no duty to rescue unless:

You placed the victim in the situation that places the victim in peril or caused the injury.
You owed a duty to keep the victim from the situation, such as a professional guide, schoolteacher etc.
You are required to by statute

RESPONDEAT SUPERIOR: The negligence of the employee will be imputed to the employer if the employees were acting within the scope of responsibility and authority of their employment.

RISK ANALYSIS: A detailed examination including risk assessment, risk evaluation, and risk management alternatives, performed to understand the nature of unwanted, negative consequences to human life, health, property, or the environment; an analytical process to provide information regarding undesirable events; the process of quantification of the probabilities and expected consequences for identified risks.

RISK ASSESSMENT: The process of establishing information regarding acceptable levels of a risk and/or levels of risk for an individual, group, society, or the environment.

RISK ESTIMATION: The scientific determination of the characteristics of risks, usually in as quantitative a way as possible. These include the magnitude, spatial scale, duration and intensity of adverse consequences and their associated probabilities as well as a description of the cause and effect links.

RISK EVALUATION: A component of risk assessment in which judgments are made about the significance and acceptability of risk.

RISK IDENTIFICATION: Recognizing that a hazard exists and trying to define its characteristics. Often risks exist and are even measured for some time before their adverse consequences are recognized. In other cases, risk identification is a deliberate procedure to review, and it is hoped, anticipate possible hazards.

RISK: The potential for realization of unwanted, adverse consequences to human life, health, property, or the environment; estimation of risk is usually based on the expected value of the conditional probability of the event occurring times the consequence of the event given that it has occurred.
Thomas Cool provides an alternative definition of risk in the context of uncertainty.

S

SAFETY: Relative protection from adverse consequences.

SPORTS LAW: A combination of various legal disciplines including labor law issues, rules and regulations of amateur sports, constitutional issues, personal injury litigation, and even copyright law.( Robert E. Frale, University of California, Hastings College of Law, 1989)
 
STANDARD OF CARE: The level of action, non-action or care that the industry requires as defined by the general population, the law requires as applied to a breach of duty to an injured party.
Example: The standard of care is canoes if it capsizes and fills with water will not sink. The amount of training an employee should have to perform his job.

STANDARD: The minimum acceptable level of operation for a business.

STATUTORY LAW: Law created by a legislative body, congress.

STRICT LIABILITY: Activity which is classified as inherently dangerous which give rise to imposition of liability regardless of legal fault or moral blame. (Western Stock Center, Inc. v. Sevit, Inc., 195 Colo. 372, 578 P.2d 1045 (1978))
Examples: Wild or Dangerous Animals, Dams or man-made structures impounding water, Explosives

T

TEMPORARY TOTAL DISABILITY: An injury which does not result in death or permanent disability, but which renders the injured person unable to perform regular duties on one or more full calendar days after the day of the injury.

TERM: Length of time. When used in connection with a lease, term refers to the length or duration of permitted occupancy or possession, measured from the date of first permitted occupancy or possession (not the date of signing the lease).

TERMINATION: An end, severance or cessation of something, such as the termination of a contract.

TITLE: Ownership or a claim of right of ownership, especially of real estate; a document proving ownership.

TORT: Civil wrong

TOURISM: Travel away from home primarily for pleasure

TRAVEL AND TOURISM ADVOCACY: Relates to the legal considerations that arise from the operations of the travel industry, whether for business or pleasure.

TRIAL COURT: The court where the evidence is presented. Witnesses and Experts testify and the jury makes a decision.

U

UNIFORM COMMERCIAL CODE (U.C.C.): A body of uniform laws (with only slight variations) governing business, banking and commercial relationships, which have been adopted by all states (except Louisiana).

V

VIODLABLE: Where one person has the ability to make the contract void. Minors have the right to void a contract.

VOID: Having no legal force or validity; null. If a contract is void, it never was. Both parties are placed in the identical position there were before the contract.

W

WAIVE: The act of exercising a waiver (see Waiver).

WAIVER: The voluntary, intentional relinquishing or giving up of some known right.

WARRANTEE: One to whom a warranty is given.

WARRANTY OF MERCHANTIABILITY: Implicitly represents that a product is reasonably fit for a general purpose.

WARRANTY: A promise that a statement of fact is true.

WITNESS: One who signs his name to a document, not as a party to the agreement, but rather for the purpose of establishing the authenticity of the signature of a party to the agreement.

WORK INJURIES: Those which arise out of and in the course of gainful employment regardless of where the accident occurs. Excluded are work injuries to domestic servants and injuries occurring in connection with farm chores which are classified as home injuries.

WORKERS COMPENSATION: State and Federal law that insure the injuries of workers hurt on the job.

WORKERS: All persons gainfully employed, including owners, managers, other paid employees, the self-employed, and unpaid family workers, but excluding domestic servants.

X

Y

Z

What do you think? Leave a comment.

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Betty van der Smissen Lecture: Risk Management And Legal Liability

Posted: April 4, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Description

Date: April 22, 2011 Time:1:30pm EST
This webcast will focus on legal issues related to parks and public lands. Each presenter will focus on a legal issue for 35 minutes followed by 10 minutes of question and answer.

About the Presenters
Reb Gregg, from Houston, Texas, is a leading attorney, lecturer and writer in legal liability issues for adventure, education and recreation based outdoor programs.

Jim Moss, from Denver, Colorado, is an attorney, professor, speaker, writer and expert witness specializing in outdoor recreation law.

Background
Beginning in 1955, Dr. van der Smissen’s career in higher education defined her professional life by integrating teaching, research, service, and mentoring of both faculty and students until the final days of her life. Her expertise in risk management and legal liability made her one of the foremost authorities in the country, and she cherished working with her law colleagues and loved debating the issues of the day. In that spirit, Reb Gregg and Jim Moss, two of Betty’s esteemed colleagues, will present and debate selected legal issues in outdoor recreation in a lively, entertaining, and educational format.

Dr. van der Smissen impacted the lives of many students, faculty, and professionals in recreation and made significant contributions to the recreation profession over her lifetime. Please consider tuning in to this webcast to honor her legacy.
Registration is Free if you do not need any CEU’s.

Cost is $15.00 if you need CEU’s.

Go here to register.
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WHISTLER BLACKCOMB INTRODUCES GUEST HEIGHT RESTRICTION

Posted: April 2, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Policy Implemented To Accommodate High Snow Levels

WHISTLER, BC, April 1, 2011 – Whistler Blackcomb announced today a new height restriction for all skiers and riders after record breaking snow this season.

From today onwards, guests shorter than 350cm/11.5 feet, the current snow base, will be prohibited from accessing Whistler Blackcomb without the required equipment: snorkel, a shovel and point of view camera.
The policy has come into effect after 315cm (124inches) of snow fell this past month, the second snowiest March on record. To date, mountain safety teams have been able to identify individuals immersed in the snow after using specialized audio equipment to detect their cries of “woohoo” and “yeehaw.”

“Having too much powder is a big problem here at Whistler Blackcomb,” said John McGroomer, senior vice president of Lame. “When we get a big dump of snow, not only do we encounter a lot of powder frenzy, many powder hounds adopt a ‘no friends on a powder day’ attitude, skiing or riding with only a select few, only reuniting with miffed boyfriends/girlfriends at après.”

Including the record-setting March, Whistler Blackcomb has seen nearly 14 metres (46 feet) of snow so far this season, well above the average annual snowfall of 10.25 metres (33.66 feet). With over 50 days of skiing/riding remaining this season, it’s shaping up to be an amazing spring. In order to take advantage of the great conditions at the best rate, 2011-2012 season pass or EDGE Card are available online. With a purchase guests can upgrade to unlimited spring skiing this season for as little as $49. And that ain’t no April Fool’s joke.

Events happening this spring include the TELUS World Ski & Snowboard Festival April 15 – 24^th, 2011. Guests can take advantage of discounts with ski and stay with packages starting from $81 per person, per night. For more information about pass and card products, current weather and snow information, events and activities at Whistler Blackcomb please visit www.whistlerblackcomb.com.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Stephenson v. Food Bank for New York City, 2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82

Posted: March 28, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Stephenson v. Food Bank for New York City, 2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82
Devone Stephenson, Plaintiff, against Food Bank for New York City, FOOD FOR Submission Date SURVIVAL and LAWYERS ATHLETIC LEAGUE, INC., Defendants.
112870/2006
CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY
2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82
October 16, 2008, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: league, team, player, basketball, guy, referees, foul, roster, inactions, online, waiver form, assumption of risk, basketball games, big man, undersigned, own action, assault, fouled, times, summary judgment, cross claims, personal responsibility, participating, covenant, signer, law firm, affiliated organizations, trash-talking, supervision, disability
HEADNOTES
[**1132A] Release–Scope of Release.
COUNSEL: [***1] For Plaintiff: Leonard Silverman, Esq., New York NY.
For Lawyers Athletic League, Defendant: Lora H. Gleicher, Esq., Wade Clark Mulcahy, New York NY.
For Food Bank for New York City and Food for Survival, Defendants: Did not appear on the motion.
JUDGES: Paul G. Feinman, J.
OPINION BY: Paul G. Feinman
OPINION
Paul G. Feinman, J.
Defendant Lawyers Athletic League, Inc. (the League), moves pursuant to CPLR 3212 for summary judgment in its favor. For the reasons which follow, the motion is granted and the complaint is dismissed as are any cross claims asserted against it.
Factual and Procedural Background
The League organizes and schedules basketball games for its member teams. One such team is organized by the law firm of Milberg Weiss Bershad Specthrie & Lerach ¹ (the Milberg [*2] Weiss team).
1 The law firm is now known as Milberg LLP.
Plaintiff Devone Stephenson alleges that on March 1, 2006 there was a basketball game between the Milberg Weiss team, of which he was a member, and a team organized by the Food Bank For New York City (the Food Bank team), that is part of the New York Corporate Athletic League (Corporate League). Stephenson had previously played Division I basketball on full scholarship in college, was 6’8″ tall [***2] and weighed 215 pounds. At Stephenson’s deposition he described the events that led up to the incident that resulted in this lawsuit as follows:
Really this whole [Food Bank] team was talking trash, and most of it was directed toward[] me because, one, I was the biggest guy on my team and, two, I was the best player, basically, on the court. But[,] I was trash-talking a little bit back and forth to, you know, some of the guys, maybe the guy the guy [who] was guarding me.
(Not. of Mot. Ex I, Stephenson EBT at p. 18, ll. 19 – 25). Stephenson contends that during the first half of the game, both he and his team captain, David Cohen, asked the referees to stop the other team from trash-talking and to “clean up the game,” however, the referees failed to do so.
The second half of the game, according to Stephenson, “was more [of] the same, a lot of trash-talk, a lot of taunting.” (Id. at p. 25, ll. 22 -24.) Stephenson explained,
The play was still very physical, but in the second half I remember, you know, I made a conscious effort to say to myself, “Listen, D, you are a much better play than these guys.” I am going to let my game do the talking. I said that to myself. I wasn’t going to engage [***3] in any more verbal communication with these guys, I said. Boom, I got the ball, drove to the basket, I got fouled, and I made my mind up I was going to the basket every time, get fouled and get these guys in foul trouble, and foul them up. It was working. I got fouled, I believe, four times consecutively. And in basketball, you know, they won’t allow you to shoot free-throws until you have been you are over a certain foul, almost.
They reached the last foul on the fourth foul, I believe, and so I went to the line actually, I walked to it’s called the top of the key. You gather yourself after you foul, then you take your time and walk.
So, as I’m walking to the foul line, I hear, “Yo, big man. Yo, big man.” I ignored for the first couple of times, but I heard it like he kept saying it, “Yo, big man. Yo, big man,” like at least seven times. So finally, I turn around, and I see one of the Food Bank players, one of the guys that was playing in the game, I don’t know his name, and I turned around and he said, “You better watch those elbows,” and I just dismissed it, turned to talk away. Next thing I knew, I was getting up from the floor.
(Id. at p. 25, l. 24 – p. 27, l. 9). A player for the [***4] Food Bank team who had signed in as “T” had punched Stephenson in the face, fracturing his jaw. Plaintiff’s injuries required treatment by oral surgeons and the wiring of his jaw. Apparently “T” was not an authorized player as he was not a Corporate League member. As a result of this incident, Steve Frenchman, the Commissioner of both leagues at issue, permanently suspended the Food Bank team and its captain Chris Dawson. (Not. of Mot., Ex. H, Frenchman EBT, p. 52).
[*3] Stephenson alleges that the League was negligent in its supervision, operation and control of the basketball game, its league, the referees, and the Food Bank team, and in failing to have a representative at the game to properly monitor the actions of the players.
According to the League, it merely arranges and schedules the basketball games between member teams and provides two referees who are certified by the International Association of Basketball Board of Officials (IABB).
The League asserts that in order to play on a team the team member must fill out a form online, including a waiver provision, which states that the undersigned:
1. Acknowledge and duly understand that each participant will be engaging in activities [***5] that involve risk of serious injury, including permanent disability and death, and severe social and economic losses which might result not only from their own action, inactions or negligence but the actions, inactions or negligence of others, the rules of play, or the condition of the premises or of any equipment used. Further, that there may be other risks not known to us or not reasonably foreseeable at this time.
***
3. Assume all the foregoing risks and accept personal responsibility for the damages following such injury, permanent disability or death.
4. Release, waive, discharge and covenant not to sue the Lawyers Athletic League, Inc., Lawyers Athletic Association, Inc., the Lawyers Basketball League, the New York City Corporate Basketball League, Lawyer Volleyball League and its related Leagues and affiliated organizations, their directors, commissioners, referees, employees, agents, facilities and sponsors from any and all liability to the undersigned, his or her heirs and next of kin for any and all claims, demands, losses or damages on account of injury, including death or damage to property, caused or alleged to be caused in whole or in part by the negligence of Lawyers Athletic [***6] League, Inc. or its related “releasees” enumerated above.
By checking this box the participants have read the above waiver & release, understand that they are giving up substantial rights by checking it and check it voluntarily.
(Lawyers Basketball League – Waiver Form, Affirmation in Support of Lora H. Gleicher, Exhibit H).
In addition, according to the League, in order to play, players must sign a roster before the game begins which states, in pertinent part:
The undersigned understands the risks inherent in playing Basketball and Volleyball and hereby assumes all risks incident to such activities and agrees to indemnify and save harmless The Lawyers Basketball and Volleyball Leagues, The New York Corporate Basketball League, The Lawyers Athletic League, The Lawyers Athletic Association, Inc. and affiliated organizations, their directors, commissioners, agents and facilities against all losses, claims actions, suits, expenses, liabilities, damages or legal fees on account of any loss or injury to persons or property incurred or caused by the acts of the undersigned.
[*4] (Roster, Gleicher Affirmation, Exh. K).
Although Stephenson states that he does not remember submitting the online form, [***7] he does not deny having submitted it, and the League submits copies of both the online waiver and the game roster signed by Stephenson. According to the League, Stephenson thereby waived any claim against the League for his injury.
Discussion
Waivers, such as that submitted to the League by Stephenson, have been found to be valid by the courts. In Bufano v National Inline Roller Hockey Ass’n. (272 A.D.2d 359, 359-360, 707 N.Y.S.2d 223 [2d Dept 2000]) where the plaintiff was injured in a fight with another player during a game, the release signed by the player was upheld as enforceable because it “expressed in clear and unequivocal language the intent to relieve the defendants of all liability for personal injuries … caused by the defendants’ negligence.” The Court also noted that by voluntarily participating in the game, the plaintiff assumed the risk of the injuries that he sustained. See also Castellanos v Nassau/Suffolk Dek Hockey, Inc., 232 AD2d 354, 648 N.Y.S.2d 143 (2d Dept 1996) (by voluntarily participating in a game, an experienced player who signed a waiver form, assumed the risk of the injury that he sustained). Here too, the online release submitted by Stephenson expressly releases the League from injury caused [***8] by any negligence by the League and also indicates that the signer assumes the risk and accepts personal responsibility for not only his own “action, inactions or negligence but the actions, inactions or negligence of others” (Affirmation in Support of Lora H. Gleicher, Exhibit H). Moreover, electronic signatures are valid under New York law (State Technology Law § 304 [2]).
Citing Long v State of New York (158 AD2d 778, 551 N.Y.S.2d 369 [3d Dept 1990]), Stephenson argues that releases for negligence will be closely scrutinized and will not be interpreted to bar claims outside the contemplation of the parties. Stephenson further contends that being hit by another player could not have been contemplated as a risk of the game. In Long, however, the defendant State of New York was not named in the Waiver and Release form. Furthermore, while the document in question stated generally that the plaintiff understood “that there may be risks of injury in connection with the event” and acknowledged that “I am voluntarily assuming any and all risk” (id. at 779), it did not expressly release from negligence even the entity that was named in the release, the Albany Medical Center. Here, in contrast, the release expressly [***9] releases and covenants not to sue the League for its negligence, and the signer also expressly assumes the risk not only of his own actions, but the actions, inactions or negligence of others. The fact that the waiver and release does not expressly mention the possibility of injury resulting from an assault by another player, even a player not properly admitted, does not render it invalid.
Citing Barnum v Millbrook Care Ltd. Partnership (850 F Supp 1227 [SD NY 1994], affd 43 F.3d 1458 [2d Cir 1994]) and Jacob Gold Realty Inc. v Sckoczylas (186 Misc 2d 612, 720 N.Y.S.2d 324 [App Term, 2d Dept 2000]), Stephenson further argues that, in any case, the roster signed by plaintiff at the time of the game, containing the assumption of risk paragraph, does not create an express assumption of risk covering the assault, but rather limits the assumption of risk to those risks that are known and apparent to the player. Plaintiff contends that because the roster was signed after the online waiver form, it supersedes the waiver form. Although it is true that where there is a conflict between the new and old terms, the new language will control (see Jacob Gold Realty Inc. v Sckoczylas, supra), here, there is no conflict [***10] between the on-line waiver and the [*5] assumption of risk and indemnification provision contained in the roster document signed by Stephenson at the time of the game. Thus, the original waiver is not superseded.
Stephenson argues that the League was negligent in its supervision of the referees, who failed to prevent the assault by the Food Bank player. Because the court finds the waiver and release to be valid, it is not necessary to reach the League’s argument that the referees were independent contractors and thus the League was not responsible for the manner in which they refereed the game.
Accordingly, it is hereby
ORDERED that the motion for summary judgment of defendant Lawyers Athletic League, Inc. is granted and the complaint and any and all cross claims are dismissed as to it with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the remainder of the action is severed shall continue under this index number.
Dated: October 16, 2008
New York, New York J.S.C.

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Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Posted: March 21, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Recreational Equipment Incorporated, REI, the big nationwide outdoor co-op held liable for injuries of a bicycle branded as its own.

Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351

Disclaimer. I’m a member of REI for more than 40 years. (I signed up when I was 4!).

This case received a lot of press because the plaintiff died in an avalanche less than a week before the Washington Appellate Court handed down this decision. S As usual, the reports left me confused so I went searching for the decision.

I think this decision is the first product liability case where the plaintiff won on a motion for summary judgment I’ve ever read. Summary judgment is a motion granted by the court based on written motions or in some cases limited oral argument. Normally, the issues in a product liability case are too complex for this type of resolution. REI, lost before it had a chance to argue its case, to some extent.

The case stems from a front fork on a Novara bike allegedly failing. Novara is the trade name for bikes sold by REI. In this case, the bike was manufactured by Aprebic Industry Company, Ltd. Aprebic was not brought into the case. Under Washington Product Liability ACT (WPLA), the retailer is liable for product liability claims if the product is sold under the retailer’s name. Because Novara was the trademark name of REI, then REI was liable for the defects.

The WPLA differentiates between the liability of a manufacturer and that of a retailer.

The WPLA distinguishes between and imposes different standards of liability on manufacturers and product sellers for harm caused by defective products. See RCW 7.72.030, .040. As a general rule, manufacturers of defective products are held to a higher standard of liability, including strict liability where an injury is caused by a manufacturing defect or a breach of warranty. RCW 7.72.030(2). 2 In contrast, product sellers are ordinarily liable only for negligence, breach of express warranty, or intentional misrepresentation.

This difference is major. If REI was not the retailer the plaintiff would have had to prove that REI was negligent. A manufacturer can be held liable for a strict liability claim which limits the defenses available to the defendant. This difference made it easier to win the lawsuit against REI.

REI also argued that the actual manufacturer, Aprebic, should be held equally or vicariously liable for the defects and the damages. However, the court held that for this aspect of the case, whether or not Aprebic was liable did not matter. REI was liable and that was all that mattered to the court and subsequently to the plaintiff. REI and Aprebic could sue each other later to determine who owes who money.

The motion for summary judgment was based the strict liability claim. Remember in this case, although REI is only a retailer, by branding the product with its name, it is now held to the liability of a manufacturer.

Washington by statute defines the liability of a manufacturer if found liable for strict liability as:

A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s [*9] express warranty or to the implied warranties under Title 62A RCW.

(a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.

The standard of manufacturing in this case was simple proof that the product was not reasonably safe. That is a very low standard to be proved by the plaintiff.

The plaintiff and defendant hired expert witnesses. The plaintiff’s expert witness opined that the front fork was not manufactured correctly. The plaintiff’s expert stated several specific issues with the fork that he found were the cause of the failure that caused the accident.

REI’s expert was not as specific in his findings from the way the Washington Appellate Court quoted him. The court quoted him using the following terms and phrases: “…there is presently insufficient information to rule,” “the nature of the fracture was not determined” and “that additional laboratory testing should be conducted.” This hesitancy or non-specific language in the defendant’s expert witness report was grasped by the court as proof the expert witness of the plaintiff was correct.

So?
 
If you are a retailer you should understand the strict liability laws of your state to see how you are defined for products you brand with your name. In any case, you need to make sure that all products that come into your store are manufactured correctly and are not defective. In many cases, you may not be able to do that, such as the case a carbon fiber front fork.

If you are using third parties to manufacture products for your store you may want to have an agreement outlining the liability of the parties. You should also receive indemnification for product liability claims when you have no part of the manufacturing process. This means receiving more than a certificate of insurance. Most certificates of insurance simply prove the person providing the certificate has insurance. Not that the insurance policy is going to be available to use to pay claims.

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 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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