Even hikers sue for their injuries.

Although I would guess this is a subrogation claim because the plaintiff is now a quadriplegic.

Citation: Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

State: California, United States District Court, C.D. California

Plaintiff: Jill and Scott Kalter

Defendant: Grand Circle Travel

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: for the defendant

Year: 2009

Summary

The plaintiff fell trying to climb wet stone steps in Machu Pichu. She sued the travel agency she hired to take her there and lost. Climbing wet stones is an open and obvious risk and the doctrine of assumption of the risk prevented the plaintiff’s recovery.

Facts

Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill Kalter (” Kalter” ) purchased a Grand Circle ” Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the ” Itinerary” ), which stated that her group would visit Machu Picchu on two consecutive days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. The Itinerary also stated: ” [t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” Kalter received and read the itinerary prior to departing on her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park. The map includes a section entitled ” Visit Regulations,” which states, among other things, ” Do not climb the walls,” and ” Follow only designated routes according to arrows.”

It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas and walked on the stone paths The second day, she opted to explore on her own, and ventured off the established paths. states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. Kalter states that she did not hear Cardenas give these warnings, but that she ” has no reason to doubt” that he did so. Kalter went to an area known as the ” terraces,” filled with vertical rock walls that contain small stone protrusions called ” floating steps.” Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.

The defendant moved for summary judgment, which was granted.

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

The defense raised by the plaintiff’s was assumption of the risk.

The doctrine of primary assumption of the risk applies where ” the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. The question turns on whether the plaintiff’s injury is within the ” inherent” risk of the activity. A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Accordingly, ” the doctrine of primary assumption of risk applies where ‘ conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries ” if the defendant ‘ engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.”

However…

If, on the other hand, ” the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles.

The court found that inherent in the activity of hiking on uneven terrain among ancient ruins is the risk of falling and becoming injured.

The court then looked at the information the plaintiff received prior to going to Machu Picchu.

The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu ” are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus ” alter the fundamental nature of the activity.”

…Kalter did not fall while engaging in the activities condoned by Defendants-she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu.

The defendant would be liable for the plaintiff’s injuries only if the defendant’s conduct was so reckless as to be totally outside the range of the ordinary activity involved in hiking among ancient ruins or uneven terrain.

The plaintiff argued that the defendant was liable for encouraging the plaintiff to roam the ruins on her own.

…Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not ” so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region.

The next issue was whether or not the defendant had a duty to warn the plaintiff of the dangers equally obvious to both the plaintiff and others. The plaintiff admitted it was raining and admitted the steps were wet. The map she received told her not to climb the walls.

The court found the risks of the floating steps the plaintiff climbed leading to her fall were open and obvious, and she assumed the risk when climbing on them. “Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customer’s encounter on trips.” Consequently, the defendant had no duty to warn the plaintiff of the dangers of climbing on the steps that lead to her fall.

The court held for the defendant.

As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall.

So Now What?

The plaintiff was a quadriplegic, so I suspect here health or disability insurance carrier started the lawsuit to recover the paid on behalf of the plaintiff. Alternatively, the plaintiff could have started the litigation because so much money was involved if they won that it might have been a lottery.

However the simple fact the plaintiff fell while on her own exploring, a ruin in Peru does not give rise to liability in this case.

What keeps coming to the surface in cases over the past couple of years is the defense of assumption of the risk. Looking at this from a different perspective. The more you educate your client, the less likely you will be sued and the less likely you will lose that lawsuit.

I’ve been saying that for more than thirty years, and it seems to come back with greater defenses and benefits for both the guests and the outfitters.

What do you think? Leave a comment.

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Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

Kalter, et al., v. Grand Circle Travel, et al., 631 F.Supp.2d 1253 (C.D.Cal. 2009)

631 F.Supp.2d 1253 (C.D.Cal. 2009)

Jill Kalter, et al., Plaintiffs,

v.

Grand Circle Travel, et al., Defendants.

No. CV 08-02252 SJO (AGRx).

United States District Court, C.D. California.

June 24, 2009

David B. Leichenger, Jon Matthew Steiner, Levitt Leichenger and Aberle, Beverly Hills, CA, for Plaintiffs.

John S. Murray, Mary Agnes Watson, Walsworth Franklin Bevins & McCall LLP, Orange, CA, Robert Mueller, Rodney E. Gould, Rubin Hay and Gould PC, Framingham, MA, for Defendants.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

[Docket No. 57]

S. JAMES OTERO, District Judge.

This matter is before the Court on Defendants Grand Circle, LLC (erroneously sued as Grand Circle Travel, Overseas Adventure Travel and Overseas Adventure Travel Partners, Inc.) and Grand Circle Corporation’s (collectively, ” Grand Circle” ) Motion for Summary Judgment, filed May 13, 2009. Plaintiffs Jill and Scott Kalter (collectively, ” Plaintiffs” ) filed an Opposition, to which Grand Circle replied. The Court found this matter suitable for disposition without oral argument and vacated the hearing set for June 1, 2009. See Fed.R.Civ.P. 78(b). For the following reasons, Grand Circle’s Motion is GRANTED.

I. BACKGROUND

Grand Circle is a tour operator that arranges vacation packages to destinations around the world. (Olson Decl., filed as Gould Decl. Ex D, ¶ ¶ 2, 8; Pls.’ Separate Statement of Undisputed and Disputed Material Fact (” Statement” ) ¶ 1.) Jill Kalter (” Kalter” ) purchased a Grand Circle ” Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. (Olson Decl. ¶ 13; Pls.’ Statement ¶ 2.) Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the ” Itinerary” ), which stated that her group would visit Machu Picchu on two consecutive days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. (Kalter Dep., filed as Gould Decl. Ex. A, 35:5-35:7, 36:15-20; 44:19-45:22; Itinerary, filed as Leichenger Decl. ” Kalter Dep. Ex. 20″ ; Pls.’ Statement ¶ ¶ 3-4.) The Itinerary also stated: ” [t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” (Itinerary at 65.) Kalter received and read the itinerary prior to departing on her trip. (Kalter Dep. 36: 15-20.) In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park.[1] (Cardenas Decl. ¶ 20; Kalter Dep. 59:18-20.) The map includes a section entitled ” Visit Regulations,” which states, among other things, ” Do not climb the walls,” and ” Follow only designated routes according to arrows.” (Map, filed as Cardenas Decl. Ex. C.)

It was raining on both days Kalter was at Machu Picchu. (Kalter Dep. 54:12-16, 71:8-11.) The first day, she remained with Cardenas and walked on the stone paths. Id. 52:22-25, 64:11-16. The second day, she opted to explore on her own, and ventured off the established paths. Id. 67:24-68:1, 126:4-6; Supplemental Cardenas Decl. ¶ 11-12. Cardenas states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. (Cardenas Decl. ¶ 13.) Kalter states that she did not hear Cardenas give these warnings, but that she ” has no reason to doubt” that he did so. (Kalter Decl. ¶ 7; Kalter Dep. 54:24-55:2.) Kalter went to an area known as the ” terraces,” filled with vertical rock walls that contain small stone protrusions called ” floating steps.” (Kalter Dep. 8:5-14; Pls.’ Statement ¶ 10; see Supplemental Cardenas Decl. ¶ 12, Ex. C (photographs of only set of floating steps above the location where Kalter was found after the fall).[2]) Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. (Cardenas Decl. ¶ 5.) Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. (Kalter Decl. ¶ 10; Kalter Dep. 85:11-13, 101:20-21.) In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. (Kalter Decl. ¶ ¶ 10-11; Kalter Dep. 8:16-20; Supplemental Cardenas Decl. Ex. C.) Kalter did not think this was a dangerous act. (Kalter Decl. ¶ 11.) As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.[3] (Pl.’s Opp’n 3.)

Grand Circle now moves for summary judgment on the grounds that: (1) Plaintiffs’ claims are barred under the doctrine of primary assumption of the risk; (2) Grand Circle had no duty to warn Kalter of the dangerous nature of the floating steps because it was open and obvious; and (3) Grand Circle is not liable for the actions of Cardenas because he is an independent contractor.

II. DISCUSSION

Summary judgment is proper only if ” the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A ” material” fact is one that could affect the outcome of the case, and an issue of material fact is ” genuine” if ” the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, courts view the evidence in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. 2505.

A. Primary Assumption of the Risk Bars Plaintiffs’ Claims.

” The question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” Knight v. Jewett, 3 Cal.4th 296, 313, 11 Cal.Rptr.2d 2, 834 P.2d 696 (1992). The doctrine of primary assumption of the risk applies where ” the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696. To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. Branco v. Kearny Moto Park, Inc., 37 Cal.App.4th 184, 190, 43 Cal.Rptr.2d 392 (1995). The question turns on whether the plaintiff’s injury is within the ” inherent” risk of the activity. Neinstein v. Los Angeles Dodgers, Inc., 185 Cal.App.3d 176, 182, 229 Cal.Rptr. 612 (1986). A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Knight, 3 Cal.4th at 318, 11 Cal.Rptr.2d 2, 834 P.2d 696. Accordingly, ” the doctrine of primary assumption of risk applies where ‘ conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” Andia v. Full Serv. Travel, No. 06-437, 2007 WL 4258634, at *4, 2007 U.S. Dist. LEXIS 88247, at *13 (S.D.Cal. Nov. 29, 2007) (citing Knight, 3 Cal.4th at 315, 11 Cal.Rptr.2d 2, 834 P.2d 696). When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries ” if the defendant ‘ engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.” Id. (citing Saville v. Sierra College, 133 Cal.App.4th 857, 866, 36 Cal.Rptr.3d 515 (Cal.Ct.App.2005)).

If, on the other hand, ” the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles. Knight, 3 Cal.4th at 315, 11 Cal.Rptr.2d 2, 834 P.2d 696. In such a case, ” the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” Id.

Here, Kalter was engaged in the activity of hiking on uneven terrain amongst ancient ruins. Inherent in this activity is the risk that one will fall and become injured. ( SeeAndia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *15) (holding that ” falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain” ). The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu ” are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus ” alter the fundamental nature of the activity.” SeeKnight, 3 Cal.4th at 318, 11 Cal.Rptr.2d 2, 834 P.2d 696. In other words, ” hiking across uneven and challenging natural terrain is an inherent risk of hiking to [the ancient ruins at Machu Picchu], without which the general public would be substantially deprived of viewing the … phenomenon.” Seeid. Moreover, as discussed further below, Kalter did not fall while engaging in the activities condoned by Defendants-she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu. Therefore, Grand Circle is only liable for only liable for Kalter’s injuries ” if [it] engage[d] in conduct so reckless as to be totally outside the range of the ordinary activity involved in [hiking amongst ancient ruins on uneven terrain] or increase[d] the inherent risk involved in the activity.” SeeSaville, 133 Cal.App.4th at 866, 36 Cal.Rptr.3d 515.

Plaintiffs argue that Grand Circle breached its duty to Kalter by ” encouraging and permitting her to roam the ruins of Machu Picchu on her own, then directing her to an area unknown, i.e. which was not explored with her Trip Leader the prior day, and given the conditions of that day, was dangerous and confusing.” (Pls.’ Opp’n 10.) Kalter was an experienced hiker, and prior to electing to explore the ruins on her own instead of remaining with Cardenas, she had read Grand Circle’s Itinerary informing her that she would encounter steep hillsides, large stone steps, and uneven surfaces. (Itinerary 65; Kalter Dep. 36: 15-20, 48:9-14.) She also received the map from Cardenas which stated ” Do not climb the walls” and ” Follow only designated routes according to arrows.” (Kalter Dep. 59:18-20; Cardenas Decl. Ex. C.) Moreover, Plaintiffs do not dispute that visitors to Machu Picchu often wander the ruins on their own, and that park regulations do not prohibit them from doing so. ( See Cardenas Decl. ¶ 15; Pls.’ Statement ¶ 26.) In addition, Plaintiffs provide no evidence that Cardenas or Grand Circle knew Kalter would attempt to climb the floating steps, and do not dispute Cardenas’ statement that Kalter ” never asked me if she could climb down from or up to any terraces. At no time did I tell Ms. Kalter that she should climb down or up the series of terraces, and at no time did I tell Ms. Kalter that it would be okay for her to climb up or down the stone terrace walls or on the ‘ floating steps.’ ” (Cardenas Decl. ¶ 16.)

Given these undisputed facts, Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not ” so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region. SeeSaville, 133 Cal.App.4th at 866, 36 Cal.Rptr.3d 515. The Court also notes that other participants in the tour stated that Cardenas was ” outstanding and the accident was not at all [his] fault. And of course, [Kalter] fell on a day of totally independent activities.” ( See Dobbins Dep. 13-25; see also Garvey Dep. 121:21- 25.) Moreover, even if Grand Circle or Cardenas erred in estimating Kalter’s ability to hike on her own across the uneven terrain at Machu Picchu in rainy weather, ” an instructor’s assessment errors-either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of conditions-are in no way ‘ outside the range of the ordinary activity involved in the sport.’ ” Kane v. Nat’l Ski Patrol, 88 Cal.App.4th 204, 214, 105 Cal.Rptr.2d 600 (Cal.Ct.App.2001); see alsoAndia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *16 (holding that tour guide’s ” decision to allow Plaintiff to return to the Rangers station alone [during a guided hike to a lava flow] … at most constituted ‘ assessment errors,’ but these ‘ subjective judgments about the difficulty of the conditions were ‘ in no way so reckless as to be totally outside the range of the ordinary activity involved’ in the activity of lava hiking” ).

Plaintiffs have submitted a declaration by Alexander Anolik, a travel and tourism attorney, stating that Cardenas ” failed to insist, explain the need for or put together a ‘ buddy system’ whereby Ms. Kalter would not have to be in this strange and dangerous area by herself,” and contending that his conduct of allowing Kalter to explore on her own fell below the standard of care in the travel industry. (Anolik Decl. ¶ 4.) Anolik submits no case law or any other information to suggest that such conduct falls below a standard of care, or that any other tour companies or guides employ such practices. ( See Supplemental Cardenas Decl. ¶ 3, stating that he is unaware of any other tour guide at Machu Picchu that requires a buddy system.) Further, as explained above, allowing tour participants to hike on their own, even off trail on uneven terrain, is not so reckless as to be totally outside the range of the ordinary activity involved in hiking. SeeAndia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *16. As such, the Court finds Anolik’s bare assertions insufficient to create a triable issue of fact regarding whether Defendants’ conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of hiking amongst ancient ruins in an undeveloped area. Accordingly, Grand Circle is not liable for Kalter’s injuries under the doctrine of primary assumption of the risk.

B. Grand Circle Had No Duty to Warn Kalter of the Open and Obvious Danger Posed by the Wet Floating Steps.

” It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Andia, 2007 WL 4258634, at *6, 2007 U.S. Dist. 88247, at *18 (citing Marshall v. United Airlines, 35 Cal.App.3d 84, 90, 110 Cal.Rptr. 416 (1973)). Here, it was obvious to both Kalter and Cardenas that it was raining, and Kalter admitted at her deposition that she ” knew [the stones] were slippery and wet.” (Kalter Dep. 64:19-65:3, 71:14-15.) Moreover, the danger of slipping and falling from stepping on a small wet stone step protruding from a vertical wall is undoubtedly an obvious danger.

Plaintiffs conclusorily state that ” there are genuine issues of material fact regarding whether the conditions that caused Ms. Kalter’s injuries were open and obvious,” but offer no evidence to support this claim. (Pls.’ Opp’n 13.) Indeed, Kalter admits that it was ” raining on and off,” that she ” knew the rocks could be slippery” , and that before she started climbing she could see the third step was missing. (Kalter Dep. 71:8-15, 101:12-18.) Kalter offers no evidence to suggest that she believed climbing the floating steps was allowed or common, or that she saw anyone else climbing them. Further, it appears that the danger of climbing the steps was obvious to other members of Kalter’s tour; when asked whether he saw anyone climbing the steps, one member responded, ” Good Lord. Someone, probably the guide, said that the Indians might have used them.” (Dobbins Dep. 24:23-25.) In addition, the map Kalter received prior to entering the park instructed her not to climb the walls. (Cardenas Decl. Ex. C.) Kalter also testified at her deposition that she ” thought there would be some risk in climbing up the floating steps.” (Kalter Dep. 110:12-22.) Further, Plaintiffs offer no evidence that the risk of slipping on the wet floating steps was any less obvious to Kalter than to Cardenas, especially in light of the fact that Kalter had walked on stone with Cardenas the previous day and noted that the stone was ” slippery at times.” (Kalter Dep. 64:15-18.)

Plaintiffs also cite case law holding that ” although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g. when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability.” (Pls.’ Opp’n 12), citing Martinez v. Chippewa Entrps., Inc., 121 Cal.App.4th 1179, 1184, 18 Cal.Rptr.3d 152 (Cal.Ct.App.2004) (emphasis in original) (holding that trial court erred in granting summary judgment based on obvious danger where plaintiff slipped on water covering defendant landowner’s driveway.) While a landowner may be required to remedy a dangerous but obvious condition on his property, the situation differs with regards to a tour guide and tour company, where, as here, the dangerous condition is neither on the guide or company’s property nor within their control. Further, in Martinez, the plaintiff slipped on water in a defendant’s driveway that she had to cross to get by; in contrast, ” necessity” did not ” require [Kalter] to encounter” the floating steps. SeeMartinez, 121 Cal.App.4th at 1184, 18 Cal.Rptr.3d 152.

Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customers encounter on trips. See, e.g.,Tei Yan Sun v. Governmental Auths. of Taiwain, 2001 U.S. Dist. 1160, at *31-32 (finding no liability for failure to disclose dangers of ” severe undertow, high waives, and strong surf” at beach, and noting that travel agents have no duty to disclose obvious dangers to travelers) (citing McCollum v. Friendly Hills Travel Ctr., 172 Cal.App.3d 83, 95, 217 Cal.Rptr. 919 (Cal.Ct.App.1985)); Passero v. DHC Hotels & Resorts, 981 F.Supp. 742, 744 (D.Conn.1996)(” A tour operator may be obligated, under some circumstances, to warn a traveler of a dangerous condition unknown to the traveler but known to it…. This doctrine applies to situations where a tour operator is aware of a dangerous condition not readily discoverable by the plaintiff. It simply does not apply to an obvious dangerous condition equally observable by plaintiff.” ); Stafford v. Intrav, Inc., 841 F.Supp. 284, 287 (E.D.Mo.1993) (noting that travel agents owe no duty to disclose information that is obvious and apparent to the traveler). Plaintiffs cite no cases in which courts have found tour companies or guides liable for failing to warn of or remedy open and obvious dangers.

Accordingly, the Court finds that Grand Circle had no duty to warn Kalter that the floating steps might be slippery and dangerous in the rain, as this danger was readily observable.

C. Since Neither Grand Circle Nor Cardenas Are Liable for Kalter’s Injuries, the Court Need Not Reach the Issue of Whether Cardenas Is an Employee or Independent Contractor.

As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall. Further, Plaintiffs do not argue that Cardenas’ actions after Kalter fell caused or contributed to her injury. As such, whether Cardenas is Grand Circle’s employee or an independent contractor does not affect Grand Circle’s liability, and the Court need not reach the issue.

III. RULING

For the foregoing reasons, the Court GRANTS Grand Circle’s Motion for Summary Judgment.

IT IS SO ORDERED.

———

Notes:

[1] The map is produced by the Peru National Institute of Culture, not Grand Circle.

[2] Plaintiffs object to these photographs on the grounds that they ” lack proper foundation, are misleading in that the angles from which most are taken (particularly the closeups) and the two-dimensional nature of them cannot fairly (and accurately) depict how Ms. Kalter viewed the conditions at the time that she stepped on the two lowest steps.” (Pls.’ Objections to Evidence 2.) However, Cardenas states in his declaration that he took all of the photographs, and that they fairly and accurately reflect the conditions and terrain at Machu Picchu. (Supplemental Cardenas Decl. ¶ 8.) The Court finds these photographs to fairly and accurately represent the floating steps.

[3] It is unclear exactly how Kalter fell, as she does not remember and there were apparently no witnesses. (Kalter Dep. 12:22-13:5.)


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                      Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.