If you Listen to the FredCast, and who doesn’t, Take this Survey
Posted: March 15, 2012 Filed under: Cycling, Youth Camps, Zip Line | Tags: Bicycling, Cycling, Fred, FredCast, Podcast, The Wall Street Journal Leave a comment
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The Facilitator’s UnConference
Posted: December 28, 2011 Filed under: Challenge or Ropes Course | Tags: Facilitator, Leahy, NCCPS, Unconference Leave a comment
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Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Posted: December 19, 2011 Filed under: Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Summer Camp, Texas, Youth Camps, Zip Line | Tags: Charitable Immunity Act, Charity, Release, Salvation Army 2 CommentsGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Bruce Galvan, et al., Plaintiffs, v. The Salvation Army, Defendant.
CIVIL ACTION NO. H-10-3365
United States District Court For The Southern District Of Texas, Houston Division
2011 U.S. Dist. LEXIS 47257
May 3, 2011, Decided
May 3, 2011, Filed
CORE TERMS: Charitable Immunity Act, summary judgment, Charitable, amount of damages, conspicuousness, premature, matter of law, own negligence, settlement, affirmative defense, font, charitable organization, liability insurance coverage, per person, per occurrence, notice requirements, bodily injury, jury verdict, conscious indifference, reckless disregard, self-insurance, conspicuous, discovery, retention, qualify, cap, insurance coverage, enforceable, undisputed, attended
COUNSEL: [*1] For Bruce Galvan, Individually and as Next Friend, Cynthia Perez, Individually And as Next Friend, Plaintiffs: John Paul Venzke, LEAD ATTORNEY, The Venzke Law Firm LLP, Houston, TX; Michael Andrew Fisher, Dyment & Fisher, Houston, TX.
For Salvation Army, Defendant: Teresa Jones Del Valle, LEAD ATTORNEY, Del Valle Law Firm, P.C., Houston, TX.
JUDGES: Nancy F. Atlas, United States District Judge.
OPINION BY: Nancy F. Atlas
OPINION
MEMORANDUM AND ORDER
This personal injury case is before the Court on the Motion for Partial Summary Judgment Regarding Defendant’s Affirmative Defense of Release (“Release Motion”) [Doc. # 23] filed by Plaintiffs Bruce Galvan and Cynthia Perez. Defendant filed an Opposition [Doc. # 27], and Plaintiffs filed a Reply [Doc. # 28]. Also pending is Plaintiffs’ Motion for Partial Summary Judgment Regarding Defendant’s Defense of The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Motion”), to which Defendant filed an Opposition [Doc. # 29], and Plaintiffs filed a Reply [Doc. # 34]. Having reviewed the full record and having considered relevant legal authorities, the Court grants the Release Motion and denies without prejudice the Charitable Immunity Motion.
I.FACTUAL BACKGROUND
Plaintiffs [*2] Bruce Galvan and Cynthia Perez are parents of Plaintiff Christopher Galvan. Christopher was eleven years old when he attended Camp Hoblitzelle, a facility owned and operated by Defendant The Salvation Army. In June 2010, while at Camp Hoblitzelle, Christopher Galvan fell 40-50 feet from a zip-line and was seriously injured. Before Christopher attended Camp Hoblitzelle, Cynthia Perez signed a “Permission/Waiver Form for Residential Camps.” See Exh. A to Release Motion.
Plaintiffs filed this lawsuit seeking to recover from The Salvation Army for the injury to Christopher Galvan. Defendant has asserted the existence of the Release as an affirmative defense. Defendant has asserted also that The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Act”) limits its liability in this case to $500,000.00 per person and $1,000,000.00 per occurrence. Plaintiffs have moved for summary judgment on each of these arguments. The motions have been fully briefed.
II.STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing [*3] of the existence of an element essential to the party’s case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether 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 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record. See Trevino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).
III.RELEASE MOTION
Defendant has asserted the existence of the Release signed by Cynthia Perez as an affirmative defense. Plaintiffs argue that they are entitled to summary judgment on the release defense because the Release in this case fails to satisfy the [*4] requirements for it to be enforceable.
Under Texas law, there are two fair notice requirements for release agreements: (1) the express negligence doctrine and (2) the conspicuousness requirement. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement provides that the releasing language must be conspicuously written, such that a reasonable person would have noticed it. See Dresser, 853 S.W.2d at 511. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself. See Reyes, 134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997)); Dresser, 853 S.W.2d at 511.
Compliance with [*5] the fair notice requirements is a question of law for the Court. Dresser, 853 S.W.2d at 509. A release that fails to satisfy both of the two requirements is unenforceable as a matter of law. Storage & Processors, 134 S.W.3d at 192. In this case, the Court concludes that the Release asserted by Defendant does not satisfy either requirement.
The Release provides that the signer “hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” See Release, Exh. 1 to Release Motion. As an initial matter, the Release purports to release Defendant from liability for injury suffered while participating in any “Activity.” The “Activity” is to be identified by filling in a blank line on the Release form. On the Release at issue in this case, the “Activity” line contains no identified activity but, instead, has “Cynthia Perez” written in as the “Activity.”
More importantly, the Release language does not specifically state that Defendant is being released from liability for its own future negligence. Indeed, there is no express mention of negligence at all. Although there is no requirement that [*6] the release contain the specific word “negligence,” the intent to release a party from liability for its own negligence must be clearly expressed. See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 290 (Tex. App. — Beaumont 2005, review denied). In the Release at issue in this case, there is no clear expression of an intent to release Defendant from its own negligence in connection with Christopher Galvan’s participation in zip-lining.
The Release fails also to satisfy the conspicuousness requirement. The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
The Court concludes that the Release in this case does not satisfy the express negligence or conspicuousness requirements and, as a result, the Release is not enforceable as a matter of law.
IV.CHARITABLE IMMUNITY MOTION
The Charitable Immunity Act limits liability of a qualified charitable organization to $500,000.00 per person and [*7] $1,000,000.00 per occurrence. See Tex. Civ. Prac. & Rem. Code § 84.006. To qualify for the limitation, the charitable organization must have liability insurance coverage “in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury . . ..” See Tex. Civ. Prac. & Rem. Code § 84.007(g). The Charitable Immunity Act provides that the liability insurance coverage “may be provided under a contract of insurance or other plan of insurance authorized by statute and may be satisfied by the purchase of a $1,000,000 bodily injury and property damage combined single limit policy.” See id.
Defendant asserts that it is entitled to the damages limitation of the Charitable Immunity Act. It is undisputed that Defendant has over $35,000,000.00 of insurance coverage. It is also undisputed, however, that the first $500,000.00 is in the form of a self-insurance retention and the next $4,500,000.00 is in the form of The Salvation Army’s Risk Trust. Plaintiffs argue that Defendant is not entitled to the damages limitation because Defendant is self-insured and self insurance does not meet the statutory requirement of the Charitable Immunity Act. 1
1 Plaintiffs [*8] also argue that Defendant is judicially estopped to assert the Charitable Immunity Act’s limitation because a different Salvation Army entity in Maine asserted in a lawsuit in 1997 that the Salvation Army entity in Maine did not have insurance coverage. The Court concludes on this limited record that Plaintiffs have not established an adequate factual basis for judicial estoppel to apply.
Plaintiffs in this case have not alleged an amount of damages. They allege that the amount in controversy is in excess of $75,000.00. See Amended Complaint [Doc. # 16], ¶ 1. Plaintiffs allege also that Christopher Galvan’s medical bills exceed $200,000.00. See id., ¶ 5. Thus, on this record, the specific amounts alleged by Plaintiffs do not exceed the Charitable Immunity Act’s limitation. Moreover, the amount of damages has not been established by either settlement or a jury award to be in excess of the Charitable Immunity Act’s limitation. As a result, the Court concludes that a decision on whether the limitation applies to a fully-funded self insurance retention is premature at this stage of the proceedings. See, e.g., Morgan v. Fellini’s Pizza, Inc., 64 F. Supp. 2d 1304, 1316, n.6 (N.D. Ga. 1999) [*9] (noting that a request for summary judgment as to whether a damages cap applies was premature); Rafferty v. Howard, 2010 U.S. Dist. LEXIS 98423, 2010 WL 3768142, *1 (S.D. Miss. Sept. 20, 2010) (holding that preliminary ruling on whether statutory cap applies was premature). If there is a settlement or jury verdict for more than $1,000,000.00 in this case, the Court will at that time decide whether Defendant qualifies for the Charitable Immunity Act’s limitation.
Additionally, the Charitable Immunity Act provides that its limitations do not apply “to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” See Tex. Civ. Prac. & Rem. Code § 84.007(a). Plaintiffs specifically allege that Defendant’s actions in this case were “intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of Christopher Galvan and others.” See Amended Complaint [Doc. # 16], ¶ 12. Should the jury find that Defendant’s actions were as alleged by Plaintiffs in paragraph 12 of the Amended Complaint, the issue regarding whether self-insurance satisfies the insurance requirement of the Charitable Immunity Act [*10] would become moot.
V.CONCLUSION AND ORDER
The release relied upon by Defendant satisfies neither the express negligence doctrine nor the conspicuousness requirement. As a result, there has been no effective release of Defendant for its alleged negligence in this case. Plaintiffs have not alleged an amount of damages and no amount of damages has been determined either through settlement or by jury verdict. As a result, it is premature to decide whether the Act limits the amount of damages recoverable in this case. It is, therefore,
ORDERED that Plaintiffs’ Release Motion [Doc. # 23] is GRANTED and Plaintiffs’ Charitable Immunity Motion [Doc. # 26] is DENIED WITHOUT PREJUDICE as premature.
SIGNED at Houston, Texas this 3rd day of May, 2011.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
Texas makes it easier to write a release because the law is clear.
Posted: December 19, 2011 Filed under: Assumption of the Risk, Minors, Youth, Children, Summer Camp, Texas, Youth Camps, Zip Line | Tags: charitable immunity, Charitable Immunity Act, Charity, Negligence, Salvation Army, Summary judgment, Summer Camp, Texas, United States district court, zip line 1 CommentGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Too bad no one read the law to the Salvation Army in this case.
This case was filed in the Federal District Court of the Southern District of Texas. The decision was based on a Motion for Summary Judgment filed by the plaintiff to throw out the defendant’s defense of release. Normally, these types of motions are filed by the defendants to end the litigation not by the plaintiff. There was also an issue of whether the charitable immunity statute applied to limit the damages in the case.
The facts which gave rise to the case are the defendants were parents of an eleven year-old boy who attended Camp Hoblitzelle which was owned and operated by the Salvation Army of Texas. While attending the camp the minor was riding a zip line when he fell 40-50’ suffering unnamed injuries.
There was a blank in the release where the activity the parties were releasing was to be filled in. The blank line in this case was filled in with the plaintiff’s name Cynthia Perez written in as the activity. The court took delight in pointing this out.
Summary of the case
The plaintiff filed their motion for summary judgment to eliminate the defense of release. The minor’s mother signed the Permission/Waiver Form for Residential Camps prior to the minor attending camp.
Under Texas law, there are two tests to determine if a release is valid; (1) the express negligence doctrine and (2) the conspicuousness requirement test.
“A release that fails to satisfy both of the two requirements is unenforceable as a matter of law.”
The Express Negligence Doctrine is:
The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document.
The release in this case used the language “…hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” This language was not strict enough to place the signor on notice that they were giving up their legal rights according to the court.
The release was not clear. It did not state that the defendant was being released for its future negligence. Although there is no requirement that the word negligence be in the release and referenced, it is clear the release would be difficult to write without the word negligence. The court held the release at issue had no clear expression or language showing intent to release the defendant from its own negligence.
Consequently, the release failed the Express Negligence Doctrine.
The Conspicuousness requirement test requires.
… the releasing language must be conspicuously written, such that a reasonable person would have noticed it. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself.
With regard to the conspicuousness, requirement test the court stated.
The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
Here is a great example that your release cannot hide the important legal language from anyone signing it.
The court also looked into the Charitable Immunity Act and held the issue was not ripe because whether or not the defendant was subject to the limitation of damages would not be an issue unless the plaintiff was able to recover an amount greater than the limitation of $500,000 per person and $1,000,000 per occurrence.
The court also stated the Charitable Immunity Act did not apply to defendants whose “act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” The plaintiff had plead actions of the defendant in almost identical language which was another issue making the issue not ripe for decision.
So Now What?
This decision is a road map on what not to do with a release in Texas.
1. Make sure your release states that it is a release and the person signing it is giving up their legal rights.
2. Make sure the language in the release is clear. The plaintiff is releasing you from liability for your negligence in advance of any injury. You are going to have to use the word negligence in your release.
3. The release language cannot be hidden. It must be set out in such a way that it is identifiable as something important that the signor needs to know about.
4. All blanks in the document need to be located in one place so it only takes a quick scan to make sure everything is completed properly.
5. Anything that can be completed by the defendant or filled in must be completed by the defendant.
6. Have an attorney that knows and understands your operation and the law affecting your business write your release.
Writing a release is not like cooking. When you cook you have to really screw up to make something that is not edible. (I’ve been single my entire life so my definition of edible may be different from yours……) Writing a release is a much more precise endeavor.
What do you think? Leave a comment.
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When did journalism turn from telling a good factual story to trying to place blame for an accident?
Posted: July 20, 2011 Filed under: Challenge or Ropes Course Leave a commentArticle about a student falling from a ropes course is nothing but innuendo littered with a few facts.
A student fell 30’ on a school ropes course. The harness came undone or failed. The article does not identify the reason why the harness failed. The student broke his back, left wrist and arm and bruised a kidney when he landed. He will be wearing a brace for three months after the accident.
Now you’ve read the facts of the case.
The article then probes the following issues:
Whether the student signed a permission slip
Whether the mother signed a permission slip
How much training the student had
How much training the teachers had
Where the teachers received their training
Whether protocols were followed that day
Why there was no net or padding under the ropes course
Who built the ropes course, which then created a serious of “it’s not our fault quotes.”
The fact the ropes course is now closed
Eventually the issue gets back to the fact the mother wants the school to pay the students medical bills.
I wonder if the mother came up with this idea or the journalist righting the article.
Actually, it reminded me more of a plaintiff’s complaint than journalist.
When in doubt, keep your mouth shut!
This is a great example of trying to save your neck by sinking your ship. Every single thing that was reported was done in a way that made every one look bad.
Why give a reporter the opportunity?
First everyone interviewed felt they were smart enough to deal with a journalist. You aren’t. A journalist has been trained to make you look bad. None of the people interviewed were trained to make themselves or the school look good. One person, the ropes course builder had obviously been trained in making others look bad to make yourself look good.
Do what you do best and leave law and PR to experts.
Second, why answer questions you don’t know the answers too? It only makes you look, stupid at best and covering stuff probably. Just say I don’t know. If you sit in a desk in an office looking at a staff of dozens, what do you know about the operation of the ropes course? Either you trust your staff and have them run the course or you don’t. Don’t try and guess what they did and why. It only makes you look bad and makes the school look worse.
This does not mean you should hide under the desk. Hire someone to deal with the situation.
Remember that I don’t know is an honest answer. You can say I am the grand pooba of the organization and I have a staff of XX, X of whom run the ropes course. We are investigating the accident and when we learn more we’ll let you know. Right now, we’ve been dealing with the injured child and I have not had time to review what happened.
See Zipline victim: ‘Training fell short’
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Release stops lawsuit in Canadian Zip Line Lawsuit
Posted: April 14, 2011 Filed under: Release (pre-injury contract not to sue), Zip Line Leave a commentWins for Releases I’ve been told are Rare in BC.
Two women were zip lining when one “slammed” into the other one. The zip line company Cougar Mountain Adventures Ltd. Supposedly one person stalled 1500’ (500 meters) from the end; she did not clear the line. The second person then slammed into her.
The court held the release was valid because it was a high risk activity and there was no legislation preventing the use of a release.
See Zip-line crash victims lose lawsuit and Women hurt in zip-line collision lose lawsuit
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Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Posted: April 4, 2011 Filed under: Assumption of the Risk, Challenge or Ropes Course Leave a commentThis decision describes how a ropes (challenge) course is viewed by participants.
Allison v. Charter Rivers Hospital, Inc, 334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43
In this case, the plaintiff was in a treatment program for an addiction to prescription drugs. As part of the treatment program on day five she participated in a ropes course where she fell and was injured. She sued the hospital for her injuries. The defendant hospital used the defense of assumption of the risk.
In this case, the plaintiff had led an inactive lifestyle prior to entering the treatment program. When told of the ropes’ course she asked questions of the facilitator and other participants who had not participated in the ropes’ course.
The plaintiff was told that the course was designed to build trust and self-confidence. The group with the plaintiff was supposed to catch her if she fell on any part of the course. The plaintiff fell. The group did not catch her, and she suffered an injury to her knee.
The court stated under South Carolina law, to prevail on the defense of assumption of the risk, the defendant must prove the four elements of the defense:
(1) the plaintiff must have knowledge of the facts constituting a dangerous condition;
(2) the plaintiff must know the condition is dangerous;
(3) the plaintiff must appreciate the nature and extent of the danger; and
(4) the plaintiff must voluntarily expose himself to the danger.
The appellate court found the plaintiff assumed the risk of the activity which caused her injuries. She knew she could decline to participate because she had talked to two other patients who had declined. She knew the risk was of the other patients not catching her if she fell. Finally, the court found that she was the last one on the course, so she knew of the risk because she had watched other patients on the course.
This case is also doing a great job of showing how facts of an activity are interpreted by the court. Facts are told by the injured plaintiff to an attorney. The attorney investigates the claims and facts and discovers additional information from the defendant. That information along with the defendant’s version of the facts are then argued both in writing and sometimes orally in front of the court. Consequently, reviewing an appellate decision the facts stated by the court seem to have no relationship to how an activity or trip actually is run.
If you understand how a ropes, or challenge course works consider these statements by the court about the facts of the case.
A “ropes course” is an activity used to build trust and self-confidence. In the activity involved in this case, the participants walked across a rope strung between trees while holding onto an overhead wire. While one participant crosses the rope, four others follow on the ground, acting as spotters to catch the participant if he or she falls.
Katherine explained the course involved walking on a rope between three trees and that the activity would help Allison to build trust.
Katherine asked them to raise their hands and pledge to at least attempt the activity. The group warmed up with a game similar to tag.
Katherine asked her to at least try and assured her that if she fell, the group would catch her.
According to Allison, the purpose of the ropes course was to build trust and self-confidence. The object of the exercise was for the group to catch the participant as she fell, thereby building the participant’s trust in the group.
This is probably one of the best decisions I’ve ever seen where the court’s interpretation of what happened closely follows how the activity actually occurs. Nevertheless, even here you can see some discrepancies in what happens on the majority of courses every day.
So?
1. Use a release. Relying on assumption of the risk is a risky defense. It is rare that a court will rule on assumption of risk on motions. Normally, that is something left to the decision of the jury.
2. Proving assumption of the risk is difficult. However, you should make assumption of the risk part of your defense. If for any reason your release is thrown out of the case, then assumption of the risk may be your best defense.
A. Incorporate assumption of the risk language in your release. You can then use the release to prove the plaintiff knew of the risks because she, or he read and signed the release.
B. Incorporate in your release, language that requires or that your guest acknowledge reviewing your website. Information on your website can show the risks and educate your guests of the risks.
C. Fully inform your guests of the risks of the activity. Safety talks, photographs and answering your guest’s questions can all assist in achieving this goal.
D. Ask the guest if they have previous experience in your activity. They may forget that they have rafted or climbed after they are injured. However, they are eager to tell or write down their experience prior to the trip. Experience in the activity or similar activities is proof of assumption of the risk.
Always be prepared for the court not to understand what you do. This may require that you bring in a video of your activity to explain to the court and the jury exactly what your activity is and why people enjoy it. This may also show what the actual risk is, rather than the death defying act the plaintiff may portray your activity as.
So Now What?
Make sure your information, your website, your brochure help educates your guests in the risks of the activity. Always have the defense of assumption of the risk available to use if necessary.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Lawsuit filed over zip line fatality in Utah
Posted: January 27, 2011 Filed under: Challenge or Ropes Course 4 CommentsA Statement in the article could lead to more litigation.
The article is pretty clear cut describing an accident at a vacation ranch where a family went for a week. During the week, they participated in a zip line which broke. The father, a 54 year old physician fell to his death.
What has me concerned is a statement in the article.
… formal records of accidents and fatalities aren’t kept, but anecdotal evidence and accident reports that the trade groups monitor show the incidents are few. [emphasize added]
Now the world knows that accident reports are being kept by a trade association. A simple subpoena to the association and every injury that has occurred on a zip line or for that matter, a ropes/challenge course is now fodder for litigation. Either as evidence that accidents happen or a prospecting list for new clients.
What is the difference between the accident reports kept by a trade association and the articles I write? Several issues.
I write what can be found by simple online searches. So the information, other than my comments, is easily found by anyone researching zip line accidents.
I’m not a trade association, so I am not blessing the accident reports. Reports introduced into evidence by a plaintiff from a trade association are going to carry more weight in court because they are the real thing, the “official report” of the association.
To introduce the evidence into court, there must be a person. I can’t be used to introduce the facts of the articles I write because I have no personal knowledge of the facts. I’m just commenting on what is read, adding my experience and knowledge of the law. A trade association employee who is responsible for collecting and keeping the reports can be subpoenaed to court to introduce the reports as business records of the association. Voila a lot of possibly bad information is now in court proving the plaintiff’s case. More importantly that knowledge and subsequently those reports are going to appear in every case that exists.
For proof see the stories that occurred two years ago when the BSA fought to keep records out of court. Once those records were admitted, lawsuits sprang up everywhere because the information was now available.
See Popular in Utah, ziplines are flying into courtrooms.
To see other articles about Zip lines see:
Amusement Zip Line Error in Mexico
Zip Line Fatality
Update on Recent Zip Line Fatality
Zip lines, BSA and Lawsuits
Lawsuit filed over death caused by zip line to man riding chair lift.
They are not just a cable strung between two trees
Lawsuit filed against a Zip Line tour company
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Lawsuit filed against a Zip Line tour company
Posted: August 12, 2010 Filed under: Zip Line 4 CommentsA woman claiming injuries due to a collision on a Zip Line has filed suit against the business. Wahoo Zip Lines of Tennessee. The woman claims she was injured when she collided with another woman on the line injuring her fractured rib and injured tailbone. She is asking for $150,000.
The complaint is supposedly quite specific in what the company did wrong. They did not have radios?
The complaint claims the business was negligent in its management of the riders, including by not having two-way radios that would allow employees at the launch platforms to confirm that riders were clear of the landing platforms before sending the next person along the line.
See $150K suit filed against Wahoo Zip Lines.
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Another Challenge Course Injury
Posted: August 5, 2010 Filed under: Challenge or Ropes Course 2 CommentsDoes his status on the sports team affect this issue more than a regular student?
A student fell 30- to 40 feet from a ropes course suffering compression fractures in her back. An investigation is being conducted by the school districts insurance company.
Since results of insurance company investigations are not privileged, not protected from view by the opposing side in litigation, why not have a challenge course expert discover what happened?
See Afton to review course policies
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They are not just a cable strung between two trees
Posted: August 3, 2010 Filed under: Ski Area, Zip Line 1 CommentZip lines are gaining in popularity. Make sure you have yours built and inspected by a professional.
A new zip line in at Whitefish Mountain resort sent a man to the hospital with a broken tailbone. The man, in order to get a better ride jumped on the line to get a better ride. That jump caused the line to oscilate so that when he approached the platform the line was below the platform breaking his tailbone.
See Man injured on Whitefish resort’s new “zip line”
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Lawsuit filed over death caused by zip line to man riding chair lift.
Posted: June 24, 2010 Filed under: Ski Area, Zip Line 1 CommentThis is complicated and confusing, but from what I can tell a zip line malfunctioned and it caused a man to fall to his death who was riding a chair lift over the zip line.
The facts just start bad. The deceased was on his honeymoon. He and his new wife had ridden one chair lift up to ride the zip line at Heavenly Mountain Resort. Once they got to the top of the lift they were told the deceased was too tall to ride the zip line. He and his wife wanted to walk down the mountain but they were told they had to ride the chair lift back down.
While riding down, a retrieval rope for the zip line became entangled in with the chair’s comfort bar. (Safety bar as described in the article.) The retrieval rope flipped the comfort bar up and rocked the deceased out of the chair. He fell 50’ to his death.
See Family of man killed at Heavenly to file suit
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Zip lines, BSA and Lawsuits
Posted: May 20, 2010 Filed under: Zip Line 2 CommentsA 44 year old man took his children to a BSA Scout-O-Rama. At the event, he was the first adult to try the Zip Line. According to the complaint, instead of being attached to a metal ring, he was attached to a nylon thread that failed when he jumped off the tower.
He fell 25 feet suffering severe injuries. He is suing the Boy Scouts for his injuries.
See Boy Scouts Sued for Catastrophic Personal Injuries
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Another lawsuit against a Challenge Course and “bumbling chiropractors”?
Posted: December 24, 2009 Filed under: Challenge or Ropes Course 3 CommentsA woman is suing Beaver Hollow Conference Center of Java New York and Chiropractic Leadership Alliance for injuries she received on a challenge course. The plaintiff is claiming she fell off the pamper pole and the belay had too much slack in it.
She claims the retreat put her in a frightening situation. Is that not what a challenge course is supposed to be? She claims the course did not have proper supervision and adequate safeguards. I thought a belay was a safeguard when you are climbing? The group did not place a trained instructor with each group, negligently conducted the activity in a situation with slip hazards, which resulted in her fall.
Come on, was this woman not paying any attention to the beginning of the program. Do you want to bet she was in the back either talking to a friend or on her cell phone. I seriously doubt any challenge or ropes course would not go through an introduction explaining the program. Her complaint reads the way a challenge course should. The participants are going to experience a frightening situation with inexperienced participants and facilitating certain hazards.
The article is Docs’ ‘Confidence-Building’ Ends in Fall. To read the complaint go to http://www.courthousenews.com/2009/11/03/PoleFall.pdf
I still have not figured out where the bumbling chiropractors fit?
MSA ANNOUNCES PLANS TO DISCONTINUE REDPOINT AUTO BELAY
Posted: December 10, 2009 Filed under: Challenge or Ropes Course, Climbing Wall 5 CommentsMSA is in the process of developing a reimbursement program for eligible Redpoint and Auto-Belay Descenders. The reimbursement program plans are currently being reviewed by the U.S. Consumer Product Safety Commission (CPSC). Following the CPSC review, MSA plans to issue a recall notice to owners and distributors of the affected products, including instructions for the return of units.
It is important that the Stop-Use remain in effect. Please do not use any Redpoint Descender or affected Auto-Belay Descender. As a reminder, the Stop-Use Notice applies to the following descender units:
- All Redpoint Descenders (part numbers 10024873, 10027646, and 10027798) regardless of the date the unit was manufactured or last serviced;
- Auto-Belay Descenders (part number 10021806) manufactured or last serviced on or after June 30, 2000.
Update on Recent Zip Line Fatality
Posted: October 17, 2008 Filed under: Zip Line Leave a comment
The Farragut TN Press is reporting more information on the zip line fatality. See Zip Line Fatality. The article Farragut mourns youth states:
A miscommunication between Horn’s Creek staff sent Zachary, pictured right, down a zip-line before a wooden ladder used to unload the previous rider at the other end had been removed. Zachary hit the ladder at a high rate of speed.
Two kids injured on a ropes course August 11, 2008
Posted: October 16, 2008 Filed under: Challenge or Ropes Course 1 Comment
Wood TV of Grand Rapids Michigan is reporting in an article 2 kids hurt on rope course that two kids were injured on a ropes course attached to a climbing wall. The only other information available is the kids were injured when the fell at the Watson Glen Experimental Learning Center.
It is reported the youth will recover.
Zip Line Fatality
Posted: October 14, 2008 Filed under: Zip Line 9 Comments
Zip Line Fatality
Numerous sources are reporting the death of a 7th grader on a zip line in Tennessee. The boy was riding the zip line when he hit a ladder that had not been removed from the zip line. The ladder was used to remove riders from the zip line.
The boy was on a church outing at Horn’s Creek NOC Resort where he was riding the zip line. The boy suffered numerous injuries including several major head injuries.
See: Knoxville Seventh Grader Dies After Zip Line Accident At Ocoee Resort, Youth Dies After Injury On Zip Line and Farragut middle schooler dies after zip-line accident
I hate reporting these.
Lawsuit to stop a lawsuit
Posted: August 31, 2008 Filed under: Challenge or Ropes Course, Climbing Wall Leave a comment
A youth services agency in Doylestown a suburb of Philadelphia PA is suing the Doylestown Township to force them to protect their climbing wall and ropes course. The youth services agency rents the first floor of a converted barn from the township. Located on that floor are an indoor ropes course and a climbing gym. The township controls the rest of the building and allegedly is allowing people to access the ropes course and climbing gym when the youth services agency is not around. See Lawsuit: Town allowing access to climbing wall.
The suit claims by allowing access to the leased premises where the ropes course and climbing wall are located the town is exposing the agency to a risk of a lawsuit. They are asking for an injunction, (a court order to immediately stop the access) and their costs to allegedly protect themselves.
Seems a little oxymoronic to use one lawsuit to stop a possible lawsuit?
$400,000 challenge course settlement for shattered ankle
Posted: April 10, 2008 Filed under: Challenge or Ropes Course | Tags: Ankle, California, Los Angeles, Ropes course, Settlement, Teacher 1 CommentThe Appeal-Democrat is reporting in Sutter County teacher’s broken ankle worth $400,000 that a ropes course injury was settled for $400,000 right before the start of trial. The ropes course was owned by the Sutter County California School District and the experience was part of a conference for teachers.
The plaintiff was being lowered to the ground after crossing a catwalk when she separated from the lowering rope and fell approximately 10 feet shattering her ankle. As she was being lowered the plaintiff claims she was told “trust me, I will not let you fall.”
The plaintiff stated “I didn’t want to go. I was told I didn’t have a choice.” “As a nontenured teacher there is a lot of pressure to do everything that is set before you to do,” Gale said. “The idea of tenure is a key to why I did it.”
This is a classic example of “challenge by choice” not being fully recognized by everyone. Even though the participant at the moment might decide to participate, the entire event is not a choice. The participant is there as part of a corporate or work affair where they believe they have no choice if they want to maintain or move up in their career. This presents a real dilemma for the judge and jury; did the participant really want to be there? Did the participant really assume the risk?
Ropes course injury
Posted: March 11, 2008 Filed under: Challenge or Ropes Course, Zip Line | Tags: Pulley, Rock climbing, Ropes course, Youth With A Mission Leave a comment
Image via Wikipedia
Chemeketa Community College was offering a ropes course for its leadership development class at a ropes course of Youth with a Mission. While being hoisted via a pulley system to a zip line platform something went wrong the participant fell 10 – 12 feet. The participant, who was confined by a wheelchair, was wearing a harness and helmet at the time of the injury.
The participant was taken to the Salem Oregon Hospital with trauma injuries. The incident is currently being investigated.
Reported by the Salem Oregon Statesman Journal at Man injured in fall at ropes training course.
Amusement Zip Line Error in Mexico
Posted: February 25, 2008 Filed under: Zip Line | Tags: Mexico, Zip-line Leave a commentThe Eureka Reporter is reporting a zip line accident in a story Zip-lines mishap called “operator error.” According to the report one of the participants had not cleared the zip line when another was sent down. The second participant broke her leg in three places due to the collision with the first rider, her husband. The husband exiting the zip line needed stitches in his head.
The article then looked into whether travel accident insurance would have assisted, it wouldn’t they decided, looked a zip lines and the entire issue of taking risks in Mexico.
Image via Wikipedia
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