Stay away from Grooming Machines when you are skiing and boarding. They are dangerous!

Ski area safety acts were written, no matter what anyone says, to protect ski areas. However, if the ski area does not follow the statutes, then they cannot use the statute as a defense.

Citation: Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

State: Michigan, United States District Court, E.D. Michigan, Southern Division

Plaintiff: Corinne Dawson et al.

Defendant: Mt. Brighton, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: Michigan Ski Safety Act

Holding: for the plaintiff

Year: 2013

Summary

Michigan Ski Safety Act lists grooming machines as an inherent risk of skiing. The act also requires signs to be posted on slopes where groomers are operating. Failure to have the proper sign creates an issue as to whether the inherent risk applies defeating the ski areas’ motion for summary judgment.

Facts

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

Analysis: making sense of the law based on these facts.

The only real defense the defendant ski area had was the Michigan Ski Safety Act. The plaintiffs argue that because the defendants had violated the act, they could not use the act to protect them from a lawsuit.

The court then went through the act looking at the purpose for its creation and the protections it affords ski areas. One specific part of the act’s states that snow-grooming equipment is a risk.

MCL § 408.342. Duties of skier; acceptance of inherent dangers.

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

However, the act also requires that when snow grooming equipment is on the slope. there must be a sign posted.

MCL § 408.326a. Duties of ski area operators.

(f) Place or cause to be placed, if snow-grooming or snowmaking operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.

The plaintiff argued the signs were not posted on the run.

The issue for the court was, did the violation of the duty created by the statute remove the defense the Michigan Ski Safety Act provides.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.”

However, the court found that the issue presented by the plaintiff, that no sign was present created a genuine issue of material fact, which denies a motion for summary judgment.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.”

The case went on to discuss other motions filed that did not relate to the facts or legal issues of interest.

So Now What?

A Colorado ski area had a multi-year nasty battle over that same issue eleven years earlier. Now signs are permanently posted at all lift loading areas and the at the tops of unloading areas so you know you can realize that groomers may be on the slopes.

At the same time, most ski areas have worked hard to remove snow groomers from the slopes when skiers are present.

For another case, colliding with a snow cat see: The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


I have a new book: Boating the Grand Canyon: A “How To” for Private Boaters

Boating the Grand Canyon: A “How To” for Private Boaters

https://rec-law.us/GrandCanyon

Waiting to raft the Colorado River through the Grand Canyon, the greatest river trip in the world?

This new book, Boating the Grand Canyon: A “How To” for Private Boaters, will help make your once in a lifetime trip work.

The Colorado River flowing through the Grand Canyon is one of the world’s most awe-inspiring places on earth. Rafting and kayaking down the river is the water trip of a lifetime. Whether you are trying to get a permit or have already one a permit, this new book will instantly make planning your Grand Canyon River trip easier.

You want this once in a lifetime experience to be everything you have heard and dreamed about for years. Boating the Grand Canyon Will help make those dreams come true.

25 years of working on commercial trips in the Grand Canyon and private trips, or as the Park Service calls them non-commercial river trips, has helped me gather the best from both worlds. On top of that I’ve worked river trips for dozens of companies all over the east and west. Twenty-Five years rafting in the West, 1000’s of river days and dozens of commercial and private trips have given me the opportunity to pick the best of all works to write this book and make your trip special.

This new book will instantly make planning your Grand Canyon River trip easier.

This book will

  • Plan on getting your trip together
  • Pick the perfect friends to go down the river with you.
  • Help you understand the equipment to take or that you renting from an outfitter
  • Know what gear you need to bring with you to make the trip easier and better
  • Give you more time to enjoy the Grand Canyon
  • Save you time
  • Save you money
  • Show you all of the options you have in planning and running your trip
  • Help you transfer your river trip skills to a Grand Canyon trip

Boating the Grand Canyon explains the Non-Commercial River Trip regulations and why and how the Grand Canyon National Park River Rangers enforce the rules. By knowing and understanding the reasoning for the rules you will have a better experience with National Park Service Rangers.

This book is full of:

  • Ideas on how to plan and what not to plan for your private river trip.
  • How to decide what meals will work for your group and trip
  • Ideas on how to organize
    • Your trip
    • Your kitchen crews
    • Your menu
    • Your menu based on your schedule
    • Your boat
  • How to Quickly rig in the morning
  • How to easily de-rig in the evening
  • How to plan, in advance

12 Chapters of ideas, time savers, equipment and gear to bring and not to bring. The best way to organize your trip and the best way to keep everyone happy. 150 pages of tips, tricks and ideas to keep you enjoying the trip and not worrying about it. Two chapters on resources, links and terminology to help you become the professional Grand Canyon private boater.

  1. You want to run the Grand Canyon.
  2. Planning your trip: Organizing Your People
  3. What to Take Down the River: Stuff
  4. Food and Pre-Trip Food Preparation
  5. Things to do before you Start Your Trip
  6. Ideas on Packing and Rigging
  7. On the River
  8. Special days on the River
  9. Getting to the End of your trip
  10. Hints Tips & Tricks
  11. River Etiquette
  12. Books, Websites & References
  13. Appendix
  14. Glossary: Grand Canyon Terms & Terminology

Whitewater rafting and kayaking the legendary rapids, Horn, Granite, Crystal and Lava are what your dreams concentrate on, are you good enough, can I do it, how much fun am I going to have? This book will show you how to load your boats, and deal with the issues so running the rapids is not the keep you up all night worrying issue it might be.

The Colorado River has so much more to offer than just fantastic Whitewater. Views that are only available on a river trip such as Vasey’s Paradise, Red Wall Cavern, Elves Chasm and Deer Creek Falls are just a few.

No matter if you follow this book to the letter, or you glance through it for some new ideas, Boating the Grand Canyon will help you enjoy the Canyon, watch it change the lives of the people you are floating downriver with and marvel at what it did to you when you get home.

The Grand Canyon will change your life! This book, Boating the Grand Canyon will give you more Time to Enjoy the Adventure.

Summit Magic Publishing, LLC

Jim Moss


New Jersey holds that if you signed the release, you are held to its terms even if you cannot read English.

There was a ton of issues that in many states might have voided the release, 8 pt font, missing initial and the plaintiff not understanding English were just a few of them.

Citation: Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

State: New Jersey, United States District Court, D. New Jersey

Plaintiff: Soon Ja Kang

Defendant: LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: 2016

Summary

If you sign the membership agreement containing a release in New Jersey, you are held to the terms of the release, even if you can’t speak or read English. Plaintiff could not read or speak English, signed LA Fitness membership agreement and could not sue after she was injured on a piece of equipment.

Facts

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction. The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action.

Analysis: making sense of the law based on these facts.

The court started its analysis by looking at the release and the injury the plaintiff suffered. The court found the injury fell within the confines of the release.

As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

The issue then became whether or not the release applied to someone who did not speak or read English. Releases in New Jersey are enforceable if:

…(1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

The court throughout the third factor because the defendant was not a public utility or common carrier. The court then reviewed whether the exculpatory clause affected the public interest. The court found it did not.

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

There seemed to be somewhat of a limit to the release based on the courts next comment about the reach of the release.

The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

The plaintiff then argued the release violates the New Jersey Plain Language Act. N.J. Stat. Ann. § 56:12-2. The act requires a consumer contract to be “written in a simple, clear, understandable and easily readable way.”

The plaintiff then argued the act was violated because the print size (font) was 8 points, and the margins of the paper were .5″ “reflecting the intentions of the drafter to squeeze in additional words.”

Reviewing examples of bad language found in the act, the court determined the release did not violate the Plain Language Act.

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

The next issue was there any legal duty to perform on the part of the defendant part 2 of the four requirements.

There were no state statutes or regulation’s setting standards for fitness facilities. The plaintiff argued that National Associations had created standards that applied to fitness facilities. However, the court could not find that to be valid. “However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state.”

The final argument was the release was unconscionable because of unequal bargaining power between the plaintiff and defendant.

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter.

The court did not agree with any of the plaintiffs’ arguments. And stated in clear language that the plaintiff’s inability to speak English did not stop her from becoming bound to the terms of the release.

As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

The court went on to explain that if you sign the agreement, you are bound to the terms of the agreement, whether or not you understood the agreement.

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

The final issue was the missing initial in the document. Because she had signed the agreement, the signature at the bottom of the agreement was all that was needed for the release to be valid.

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms.

The plaintiff then argued the release and fitness contract containing the release were unconscionable. The court summed up the plaintiffs’ unconscionable argument as an amalgamation of all of her other arguments. The court found the exculpatory clause did not offend public policy, and the other arguments for unconscionability did not change the release validity.

Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

The motion for summary judgment of the defendant was granted the plaintiff’s claims dismissed.

So Now What?

New Jersey is another state that upholds the idea that if you sign a release, you are bound to the terms of the release no matter if you could understand the release, the type was too small; you did not read or speak English, or you just want out of the release.

At the same time, this list from my studies has only two states on it, California being the other state. See Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


I have a new book: Boating the Grand Canyon: A “How To” for Private Boaters

Boating the Grand Canyon: A “How To” for Private Boaters

https://rec-law.us/GrandCanyon

Waiting to raft the Colorado River through the Grand Canyon, the greatest river trip in the world?

This new book, Boating the Grand Canyon: A “How To” for Private Boaters, will help make your once in a lifetime trip work.

The Colorado River flowing through the Grand Canyon is one of the world’s most awe-inspiring places on earth. Rafting and kayaking down the river is the water trip of a lifetime. Whether you are trying to get a permit or have already one a permit, this new book will instantly make planning your Grand Canyon River trip easier.

You want this once in a lifetime experience to be everything you have heard and dreamed about for years. Boating the Grand Canyon Will help make those dreams come true.

25 years of working on commercial trips in the Grand Canyon and private trips, or as the Park Service calls them non-commercial river trips, has helped me gather the best from both worlds. On top of that I’ve worked river trips for dozens of companies all over the east and west. Twenty-Five years rafting in the West, 1000’s of river days and dozens of commercial and private trips have given me the opportunity to pick the best of all works to write this book and make your trip special.

This new book will instantly make planning your Grand Canyon River trip easier.

This book will

  • Plan on getting your trip together
  • Pick the perfect friends to go down the river with you.
  • Help you understand the equipment to take or that you renting from an outfitter
  • Know what gear you need to bring with you to make the trip easier and better
  • Give you more time to enjoy the Grand Canyon
  • Save you time
  • Save you money
  • Show you all of the options you have in planning and running your trip
  • Help you transfer your river trip skills to a Grand Canyon trip

Boating the Grand Canyon explains the Non-Commercial River Trip regulations and why and how the Grand Canyon National Park River Rangers enforce the rules. By knowing and understanding the reasoning for the rules you will have a better experience with National Park Service Rangers.

This book is full of:

  • Ideas on how to plan and what not to plan for your private river trip.
  • How to decide what meals will work for your group and trip
  • Ideas on how to organize
    • Your trip
    • Your kitchen crews
    • Your menu
    • Your menu based on your schedule
    • Your boat
  • How to Quickly rig in the morning
  • How to easily de-rig in the evening
  • How to plan, in advance

12 Chapters of ideas, time savers, equipment and gear to bring and not to bring. The best way to organize your trip and the best way to keep everyone happy. 150 pages of tips, tricks and ideas to keep you enjoying the trip and not worrying about it. Two chapters on resources, links and terminology to help you become the professional Grand Canyon private boater.

  1. You want to run the Grand Canyon.
  2. Planning your trip: Organizing Your People
  3. What to Take Down the River: Stuff
  4. Food and Pre-Trip Food Preparation
  5. Things to do before you Start Your Trip
  6. Ideas on Packing and Rigging
  7. On the River
  8. Special days on the River
  9. Getting to the End of your trip
  10. Hints Tips & Tricks
  11. River Etiquette
  12. Books, Websites & References
  13. Appendix
  14. Glossary: Grand Canyon Terms & Terminology

Whitewater rafting and kayaking the legendary rapids, Horn, Granite, Crystal and Lava are what your dreams concentrate on, are you good enough, can I do it, how much fun am I going to have? This book will show you how to load your boats, and deal with the issues so running the rapids is not the keep you up all night worrying issue it might be.

The Colorado River has so much more to offer than just fantastic Whitewater. Views that are only available on a river trip such as Vasey’s Paradise, Red Wall Cavern, Elves Chasm and Deer Creek Falls are just a few.

No matter if you follow this book to the letter, or you glance through it for some new ideas, Boating the Grand Canyon will help you enjoy the Canyon, watch it change the lives of the people you are floating downriver with and marvel at what it did to you when you get home.

The Grand Canyon will change your life! This book, Boating the Grand Canyon will give you more Time to Enjoy the Adventure.

Summit Magic Publishing, LLC

Jim Moss


I have a new book: Boating the Grand Canyon: A “How To” for Private Boaters

Boating the Grand Canyon: A “How To” for Private Boaters

https://rec-law.us/GrandCanyon

Waiting to raft the Colorado River through the Grand Canyon, the greatest river trip in the world?

This new book, Boating the Grand Canyon: A “How To” for Private Boaters, will help make your once in a lifetime trip work.

The Colorado River flowing through the Grand Canyon is one of the world’s most awe-inspiring places on earth. Rafting and kayaking down the river is the water trip of a lifetime. Whether you are trying to get a permit or have already one a permit, this new book will instantly make planning your Grand Canyon River trip easier.

You want this once in a lifetime experience to be everything you have heard and dreamed about for years. Boating the Grand Canyon Will help make those dreams come true.

25 years of working on commercial trips in the Grand Canyon and private trips, or as the Park Service calls them non-commercial river trips, has helped me gather the best from both worlds. On top of that I’ve worked river trips for dozens of companies all over the east and west. Twenty-Five years rafting in the West, 1000’s of river days and dozens of commercial and private trips have given me the opportunity to pick the best of all works to write this book and make your trip special.

This new book will instantly make planning your Grand Canyon River trip easier.

This book will

  • Plan on getting your trip together
  • Pick the perfect friends to go down the river with you.
  • Help you understand the equipment to take or that you renting from an outfitter
  • Know what gear you need to bring with you to make the trip easier and better
  • Give you more time to enjoy the Grand Canyon
  • Save you time
  • Save you money
  • Show you all of the options you have in planning and running your trip
  • Help you transfer your river trip skills to a Grand Canyon trip

Boating the Grand Canyon explains the Non-Commercial River Trip regulations and why and how the Grand Canyon National Park River Rangers enforce the rules. By knowing and understanding the reasoning for the rules you will have a better experience with National Park Service Rangers.

This book is full of:

  • Ideas on how to plan and what not to plan for your private river trip.
  • How to decide what meals will work for your group and trip
  • Ideas on how to organize
    • Your trip
    • Your kitchen crews
    • Your menu
    • Your menu based on your schedule
    • Your boat
  • How to Quickly rig in the morning
  • How to easily de-rig in the evening
  • How to plan, in advance

12 Chapters of ideas, time savers, equipment and gear to bring and not to bring. The best way to organize your trip and the best way to keep everyone happy. 150 pages of tips, tricks and ideas to keep you enjoying the trip and not worrying about it. Two chapters on resources, links and terminology to help you become the professional Grand Canyon private boater.

  1. You want to run the Grand Canyon.
  2. Planning your trip: Organizing Your People
  3. What to Take Down the River: Stuff
  4. Food and Pre-Trip Food Preparation
  5. Things to do before you Start Your Trip
  6. Ideas on Packing and Rigging
  7. On the River
  8. Special days on the River
  9. Getting to the End of your trip
  10. Hints Tips & Tricks
  11. River Etiquette
  12. Books, Websites & References
  13. Appendix
  14. Glossary: Grand Canyon Terms & Terminology

Whitewater rafting and kayaking the legendary rapids, Horn, Granite, Crystal and Lava are what your dreams concentrate on, are you good enough, can I do it, how much fun am I going to have? This book will show you how to load your boats, and deal with the issues so running the rapids is not the keep you up all night worrying issue it might be.

The Colorado River has so much more to offer than just fantastic Whitewater. Views that are only available on a river trip such as Vasey’s Paradise, Red Wall Cavern, Elves Chasm and Deer Creek Falls are just a few.

No matter if you follow this book to the letter, or you glance through it for some new ideas, Boating the Grand Canyon will help you enjoy the Canyon, watch it change the lives of the people you are floating downriver with and marvel at what it did to you when you get home.

The Grand Canyon will change your life! This book, Boating the Grand Canyon will give you more Time to Enjoy the Adventure.

Summit Magic Publishing, LLC

Jim Moss


Appellate court slams climbing gym, all climbing gyms in New York with decision saying not climbing gym can use a release.

A climbing gym is a recreational facility. As such, under New York law, the court found all releases fail at climbing gyms. Short, simple and broad statement leaves little room to defend using a release in New York.

Citation: Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660

State: New York; Supreme Court of New York, Appellate Division, Second Department

Plaintiff: Jennifer Lee, et al.

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release and Assumption of the Risk

Holding: For the Plaintiff

Year: 2017

Summary

A climber fell between the mats at a climbing gym injuring her ankle. The release was thrown out because a climbing gym is a recreational facility and assumption of the risk did not prevail because the Velcro holding the mats together hid the risk.

Facts

The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats. According to the injured plaintiff, the gap was covered by a piece of Velcro.

Analysis: making sense of the law based on these facts.

The trial court dismissed the defendant’s motion for summary judgment, and the defendant appealed. There were two issues the defendant argued on appeal: Release and Assumption of the Risk.

The court threw out the release in a way that makes using a release in New York at a climbing gym difficult if not impossible.

Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature. Therefore, the release does not bar the plaintiffs’ claims.

The court threw out the release with a very far-reaching statement. “the defendant’s facility is recreational in nature.” It is unknown if the defendant tried to argue educational issues such as in Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

The court then looked at the defense of assumption of the risk.

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation

This court would seem to agree with an assumption of the risk defense based on statements made in case law set out above.

However, the facts in this case do not lead to such a clear decision. Because the gap between the mats was covered by Velcro, the court thought the Velcro concealed the risk.

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing.

The Velcro, which was designed to keep the mats from separating, concealed the gap, which injured the plaintiff’s foot, when she landed between the mats. The defense of assumption of the risk was not clear enough for the court to decided the issue. Therefore assumption of the risk must be decided by a jury.

Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers

So Now What?

It is getting tough to defend against claims and injuries in New York, specifically in climbing gyms. For an almost identical case factually see: Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Obviously, the facts in the prior New York climbing gym case, where the plaintiff fell between the mats provided the “track” used by this plaintiff in this lawsuit.

If your climbing gym has mats held together with Velcro or some other material, paint the material yellow or orange and identify that risk in your release or assumption of the risk agreement.

Assumption of the risk may still be a valid defense see NY determines that falling off a wall is a risk that is inherent in the sport. Unless you are teaching a class or some other way to differentiate your gym or that activity from a recreational activity, you are going to have to beef up your assumption of the risk paperwork and information to stay out of court.

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia

risks, sport, injured plaintiff, punitive damages, leave to amend, cross motion, cross-appeal, consented, climbing, gap, personal injury damages, action to recover, summary judgment, inherent risk, prima facie, inter alia, recreational, appreciated, plaintiffs’, engaging, appeals, mats, rock


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