Interesting CA case on sheriff’s failure to start SAR & run SAR
Posted: October 24, 2022 Filed under: California, Mountain Biking | Tags: Discretionary, Hypothermia, Immunity, Mountain biking, SAR, Search and Rescue, Sheriff's Department Leave a commentCounty lost appeal because employees’ actions were out of line and the deceased, at least from the facts presented could have easily been found before he died.
Arista v. Cnty. of Riverside (Cal. App. 2021)
State: California; Court of Appeal of the State of California Fourth Appellate District Division Two
Plaintiff: Christyna Arista
Defendant: County of Riverside
Plaintiff Claims: Wrongful death, negligence, and negligent infliction of emotional distress
Defendant Defenses: Government Code section 8453, which provides public employees are not liable for the failure to provide sufficient police protection; section 820.2, which provides that public employees are not liable for injuries that result from acts or omissions stemming from discretionary decisions; Health and Safety Code section 1799.107, subdivision (b), which provides that emergency rescue personnel are not liable for injuries caused by actions taken within the scope of their employment, unless the actions were done in bad faith or with gross negligence
Holding: For the Plaintiff
Year: 2021
Summary
A lawsuit was filed against Riverside County Sheriff’s department for negligent Search and Rescue training and procedures. The trial court granted the Counties motion for summary judgment, and the plaintiff’s appealed. The case was sent back by Appellate Court for trial. The deceased died of hypothermia and was easily found by friends of the deceased. Sheriff’s department assumed deceased was having an affair and did not search for him.
Facts
On March 1, at 3:00 p.m., when Marin [deceased] failed to return home, Wife called and texted Marin’s cell phone every 15 minutes but received no answer until 5:14 p.m. when Marin answered Wife’s call. Marin said he had fallen from his bicycle and suffered an injury. Marin seemed confused and disoriented but said that, said that, prior to the fall, he had reached Santiago Peak and was on his way home. At 5:32 p.m., Wife began calling various agencies, e.g., a ranger station, but was unable to reach anyone. At 5:36 p.m., Wife called 911 and the operator advised her to wait at home. At 6:30 p.m., Corona Police arrived at Wife’s home, and Wife explained that Marin was injured, on his way down from Santiago Peak, and lightly dressed.
At 8:00 p.m., Riverside County Sheriff’s Deputy Zaborowski2 arrived at the Family’s home. At that point, deputies had already checked trailheads in the CNF, traveled along access roads looking for Marin, pinged Marin’s cell phone, and contacted civilian volunteers to tell them “to be ‘on alert’ for a potential call to assist.” Wife provided Zaborowski with the same information she provided the Corona Police. Zaborowski told Wife that the ping of Marin’s phone showed he was in the area of Santiago Peak. Zaborowski also said Verizon service employees were in the area of Santiago Peak and had been asked to “be vigilant for Marin’s location.”
Lieutenant Hall (Hall) was the Sheriff’s Department’s Incident Commander for the search for Marin. Hall stayed at his home during the search. He was not trained in search and rescue. Hall did not consider the risks that Marin faced from the weather. Hall did not know Santiago Peak has an elevation of 5,689 feet. Hall was unaware that the trail Marin had planned to use has an elevation of 3,000 to 4,000 feet. Hall did not know what, if any, equipment Marin had with him for cold weather.
At 10:00 p.m., Detective Holder arrived at the Family’s home. While at the residence, Holder spoke to Zaborowski. Holder said “he [(Holder)] was ‘not sure what we’re doing here,’ that Marin was ‘probably just running around on his wife’ and was ‘just covering his tracks,’ suggesting that Marin was not missing, but instead involved in some adulterous affair.” Holder informed Wife that the Sheriff’s Department was suspending its search for the night and would resume searching in the morning. Wife asked Holder, ” ‘[W]hat are the chances he [Marin] dies of hypothermia?’ ” because the temperatures at Santiago Peak were expected to be in the mid-30s to mid-40s. “Holder replied that Marin was ‘a grown man’ and that ‘he can survive the night.’ ” Holder further said “that ‘if it was a child, [he] would send a helicopter out there right now.’ ”
After being told that the search was suspended for the night, Wife organized relatives to perform their own search. Unidentified County personnel asked Wife not to initiate her own search because the County would conduct the search. Nevertheless, Wife and six relatives began searching for Marin, on foot, at 3:45 a.m. Pat Killiam who is a mountain biker and search and rescue volunteer “had heard about the ‘missing biker,’ ” and began his own search for Marin using a motorcycle on the access roads. Killiam found Marin’s body on a maintained fire access road. The precise time that Killiam found Marin is not alleged in the TAC. Marin died of hypothermia due to being exposed to cold environmental temperatures.
The County’s Sheriff’s Department has an Off-Highway Vehicle Enforcement unit (ROVE) that is equipped with all-terrain vehicles that have lights. The vehicles can operate in the mud at night. ROVE was not dispatched to search for Marin. Because Marin was on a maintained fire access road, he could have been rescued by people using all-terrain vehicles.
The real basis of the claims of the plaintiff were summed up by the Appellant court in this statement.
In the Family’s wrongful death cause of action, it alleged the following: The Sheriff’s Department assumed the responsibility of searching for Marin by starting the search and telling Wife not to conduct her own search. The Family alleged that it relied upon the County to rescue Marin after the County assumed control of the search and rescue. In taking responsibility for the search, the Sheriff’s Department owed a duty to conduct the search with reasonable care.
The County should not have assigned Hall to be the incident commander for the search because Hall lacked search and rescue training. Hall acted with reckless disregard for life by managing the search from his living room. The County’s employees acted with bad faith and gross negligence by (1) failing to contact people who had knowledge of the trails and service roads in the CNF; (2) failing to deploy the ROVE team on the night of March 1; and (3) failing to consult a medical professional with knowledge of hypothermia regarding Marin’s possible injuries and the risk of hypothermia.
Analysis: making sense of the law based on these facts.
After reviewing the procedural issues on appeal, the court looked at the arguments. The first was whether or not the County had immunity from suit for its rescue personnel under several California statutes.
Health and Safety Code section 1799.107, subdivision (b), provides, “[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”
The family, the plaintiff’s, argued there could not be any immunity because the actions of the individuals were grossly negligent. The Appellate court agreed that if the actions of the county personnel were found to be grossly negligent, then the individuals were not protected by the statute.
Gross negligence if plead and proved supersedes an immunity statute in California. Unless the statute provides immunity to the entire claim, the statute does not provide immunity: “…it is an error to grant summary judgment unless the defense is “a complete defense to the entire action.”
Knowing that based on the clothing and the weather conditions, there was a good chance that the deceased would die of hypothermia, failure to start a search by the sheriff’s department employee could be considered gross negligence.
I suspect that these factors were made more apparent when the deceased was so easily found by the family members when they searched.
The next immunity statute was Section 845, which was created to give law enforcement wide range in making budgetary decisions. Meaning how many law enforcement personnel were hired and deployed to certain areas within a community could not be subject to judicial scrutiny.
Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service
No budgetary decisions were made in deciding not to rescue the deceased. The lawsuit was not over whether or not enough SAR personnel were sent to the scene, the lawsuit was based on negligence in handling the entire incident.
The Family is not suing the County for budgetary or political decisions. The Family is suing due to the alleged negligence of particular County employees. The County asserts the Family’s lawsuit is partially based upon a failure to provide adequate search and rescue training to its Sheriff’s Department personnel.
The final immunity is usually the broadest and provides the most protection to state and local governments. The actions of an employee of a local, state or federal government are discretionary. As long as the decisions of the employee are not arbitrary, fanciful, or unreasonable, the decision will be upheld.
The appellate court did not rule the actions of the sheriff departments employees were not discretionary, only that the county, if relying on that defense must show that each of the decisions made by the employee was discretionary. The appellate court in this case increased the burden on the county to prove immunity in this case.
If the County seeks to have every material search decision Hall made protected under section 820.2 then it needs to provide evidence of what material decisions were made, provide evidence of the discretion exercised in making those decisions, and provide argument as to why each of those decisions is deserving of immunity under section 820.2. Without that information, it was not proper to grant summary judgment pursuant to the discretionary decision immunity (§ 820.2) because the County only addressed a portion of the Family’s allegations.
The motion for summary judgment granted for the County by the trial court was overruled, and the case was sent back for further adjudication.
So Now What?
Most states have various forms of immunity to protect state and county employees from lawsuits over the discretionary parts of their job. Governments would never accomplish anything if every time they did something a citizen did not like, the citizen sued them. Most Search and Rescue litigation is avoided or dismissed quickly because of this.
Here, the county’s overt actions in responding to the family as well as how easily the victim was eventually found, give credence to the claims of the family. Suggesting a mountain biker was not missing but having an affair may be a common issue in the minds of law enforcement, but expressing it or placing it in the paperwork is just stupid.
This decision seems to be a stretch, though based on the facts it does not seem to be out of line. What it is, is an example of doing dumb things, treating people badly or making a judge made can still make you lose no matter how strong the law is on your side.
Don’t do stupid things, treat people right, do your job and when in doubt, try to help would have prevented this lawsuit and probably this death.
What do you think? Leave a comment.
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.
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Arista v. Cnty. of Riverside (Cal. App. 2021)
Posted: October 23, 2022 Filed under: California, Legal Case, Mountain Biking | Tags: County, Discretionary, Government, Hyphermia, Mountain biking, SAR, Search and Rescue Leave a commentArista v. Cnty. of Riverside (Cal. App. 2021)
CHRISTYNA ARISTA, Individually and as Successor in Interest, etc. et al., Plaintiffs and Appellants,
v.
COUNTY OF RIVERSIDE, Defendant and Respondent.
E074815
COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
April 14, 2021
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC1502475)
OPINION
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Reversed.
Tiedt & Hurd, John E. Tiedt and Marc S. Hurd for Plaintiffs and Appellants.
Disenhouse Law, Bruce E. Disenhouse; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.
In a third amended complaint plaintiff and appellant Christyna Arista and her children (collectively, the Family) sued defendant and respondent County of Riverside (the County) for wrongful death, negligence, and negligent infliction of emotional distress.1 The trial court granted summary judgment in favor of the County. The Family contends the trial court erred by granting summary judgment. We reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. THIRD AMENDED COMPLAINT
The facts in this subsection are taken from the third amended complaint (TAC). Christyna Arista (Wife) was married to Andres Marin (Marin), and he is the father of her children. On March 1, 2014, at approximately 6:30 a.m., Marin left home, in Corona, for a bicycle ride to Santiago Peak in the Cleveland National Forest (the CNF). The ride would be approximately 55 miles, and Marin was expected to return home by 2:00 p.m. On March 1, the temperature in Corona was 50 to 60 degrees with periodic light drizzle. For the bicycle ride, Marin was wearing knee-length bicycle shorts, a bicycle jersey, calf-length socks, bicycle gloves, shoes, and a helmet. Marin carried $10, water, snacks, and his cell phone.
On March 1, at 3:00 p.m., when Marin failed to return home, Wife called and texted Marin’s cell phone every 15 minutes but received no answer until 5:14 p.m. when Marin answered Wife’s call. Marin said he had fallen from his bicycle and suffered an injury. Marin seemed confused and disoriented but said that, prior to the fall, he had reached Santiago Peak and was on his way home. At 5:32 p.m., Wife began calling various agencies, e.g., a ranger station, but was unable to reach anyone. At 5:36 p.m., Wife called 911 and the operator advised her to wait at home. At 6:30 p.m., Corona Police arrived at Wife’s home, and Wife explained that Marin was injured, on his way down from Santiago Peak, and lightly dressed.
At 8:00 p.m., Riverside County Sheriff’s Deputy Zaborowski2 arrived at the Family’s home. At that point, deputies had already checked trailheads in the CNF, traveled along access roads looking for Marin, pinged Marin’s cell phone, and contacted civilian volunteers to tell them “to be ‘on alert’ for a potential call to assist.” Wife provided Zaborowski with the same information she provided the Corona Police. Zaborowski told Wife that the ping of Marin’s phone showed he was in the area of Santiago Peak. Zaborowski also said Verizon service employees were in the area of Santiago Peak and had been asked to “be vigilant for Marin’s location.”
Lieutenant Hall (Hall) was the Sheriff’s Department’s Incident Commander for the search for Marin. Hall stayed at his home during the search. He was not trained in search and rescue. Hall did not consider the risks that Marin faced from the weather. Hall did not know Santiago Peak has an elevation of 5,689 feet. Hall was unaware that the trail Marin had planned to use has an elevation of 3,000 to 4,000 feet. Hall did not know what, if any, equipment Marin had with him for cold weather.
At 10:00 p.m., Detective Holder arrived at the Family’s home. While at the residence, Holder spoke to Zaborowski. Holder said “he [(Holder)] was ‘not sure what we’re doing here,’ that Marin was ‘probably just running around on his wife’ and was ‘just covering his tracks,’ suggesting that Marin was not missing, but instead involved in some adulterous affair.” Holder informed Wife that the Sheriff’s Department was suspending its search for the night and would resume searching in the morning. Wife asked Holder, ” ‘[W]hat are the chances he [Marin] dies of hypothermia?’ ” because the temperatures at Santiago Peak were expected to be in the mid-30s to mid-40s. “Holder replied that Marin was ‘a grown man’ and that ‘he can survive the night.’ ” Holder further said “that ‘if it was a child, [he] would send a helicopter out there right now.’ “
After being told that the search was suspended for the night, Wife organized relatives to perform their own search. Unidentified County personnel asked Wife not to initiate her own search because the County would conduct the search. Nevertheless, Wife and six relatives began searching for Marin, on foot, at 3:45 a.m. Pat Killiam who is a mountain biker and search and rescue volunteer “had heard about the ‘missing biker,’ ” and began his own search for Marin using a motorcycle on the access roads. Killiam found Marin’s body on a maintained fire access road. The precise time that Killiam found Marin is not alleged in the TAC. Marin died of hypothermia due to being exposed to cold environmental temperatures.
The County’s Sheriff’s Department has an Off-Highway Vehicle Enforcement unit (ROVE) that is equipped with all-terrain vehicles that have lights. The vehicles can operate in the mud at night. ROVE was not dispatched to search for Marin. Because Marin was on a maintained fire access road, he could have been rescued by people using all-terrain vehicles.
In the Family’s wrongful death cause of action, it alleged the following: The Sheriff’s Department assumed the responsibility of searching for Marin by starting the search and telling Wife not to conduct her own search. The Family alleged that it relied upon the County to rescue Marin after the County assumed control of the search and rescue. In taking responsibility for the search, the Sheriff’s Department owed a duty to conduct the search with reasonable care.
The County should not have assigned Hall to be the incident commander for the search because Hall lacked search and rescue training. Hall acted with reckless disregard for life by managing the search from his living room. The County’s employees acted with bad faith and gross negligence by (1) failing to contact people who had knowledge of the trails and service roads in the CNF; (2) failing to deploy the ROVE team on the night of March 1; and (3) failing to consult a medical professional with knowledge of hypothermia regarding Marin’s possible injuries and the risk of hypothermia. The Family’s causes of action for negligence and negligent infliction of emotional distress are based on the same conduct/omissions as the wrongful death cause of action.
B. SUMMARY JUDGMENT
The County moved for summary judgment. In its presentation of the facts, the County asserted that, on the evening of March 1, 2014, “it was raining and there was a thick cloud cover and fog in the [CNF].” The County asserted the weather “made it too dangerous to fly” a helicopter to search for Marin. The County also asserted the weather conditions and risks of landslides made it too dangerous for rescuers to search on the ground.
The County asserted that the Family did not cite a statute to support direct liability on the part of the County, which meant the Family was relying on respondeat superior liability. The County asserted that its employees’ decision to suspend the search for the night was objectively reasonable and fell within the standard of reasonable care.
Next, the County asserted three separate immunities applied. First, the County cited Government Code section 8453, which provides public employees are not liable for the failure to provide sufficient police protection. The County asserted section 845 made it immune from the allegation that it “should have provided more or different training.”
Second, the County cited section 820.2, which provides that public employees are not liable for injuries that result from acts or omissions stemming from discretionary decisions. The County argued, “The undisputed evidence shows that a discretionary decision was made, based on all of the available evidence, and after considering the risks to [Marin], the weather and the trail conditions, the conflicting cell phone location information, and all the other information . . . , not to risk rescue personnel by a further nighttime search, but to wait until morning.”
Third, the County cited Health and Safety Code section 1799.107, subdivision (b), which provides that emergency rescue personnel are not liable for injuries caused by actions taken within the scope of their employment, unless the actions were done in bad faith or with gross negligence. The County asserted, “The undisputed evidence . . . shows no gross negligence and no bad faith in deciding to wait until morning to do additional searches of the forest. Rather, the undisputed evidence shows an objectively reasonable decision, based on all of the available evidence, not to expose searchers to the high risks of a night time [sic] search under those weather conditions when decedent’s location was only vaguely known.”
C. OPPOSITION
The Family opposed the County’s motion for summary judgment. The Family asserted there is a triable issue of material fact regarding whether the Sheriff’s Department’s employees’ conduct/omissions constituted an extreme departure from the ordinary standard of conduct. The Family asserted the following constituted gross negligence: failing to set up a command post in the CNF; failing to establish a search area; not having a deputy trained in search and rescue evaluate the trail and road conditions; not contacting the ROVE team in a timely manner; having Hall command the search from his living room; and failing to consult with a medical professional regarding Marin’s injuries and risk of hypothermia.
The Family asserted the immunity for failing to provide sufficient police protection (§ 845) is meant to protect budgetary and policy decisions, not negligence by a particular law enforcement officer. As to the immunity for discretionary decisions (§ 820.2), the Family asserted (1) the County was liable for the negligent way in which it handled the search prior to deciding to suspend the search for the night; and (2) immunity for discretionary decisions applies to operational and policy decisions not to decisions such as Hall’s decision to suspend the search.
In regard to immunity for rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)), the Family asserted there were triable issues of fact regarding whether County personnel acted in bad faith or in a grossly negligent manner. As to bad faith, the Family pointed to Holder’s comments that Marin was likely having an affair. In regard to gross negligence, the Family pointed to a declaration by Richard B. Goodman, who was the Search and Rescue Resource Officer for the New Mexico State Police from 1994 to 2002, reflecting that the Sheriff’s Department’s actions were “an extreme departure from what a reasonable . . . law enforcement [officer] assuming search and rescue activities would do in the same or similar circumstances.”
D. HEARING
The trial court found there were triable issues of fact regarding “whether the County breached the duty to rescue that it undertook.” The court determined that the County was immune from liability because Hall exercised discretion when deciding to suspend the search for the night (§ 820.2). The trial court said it was familiar with the trails leading up to Santiago Peak, and that “deputies have an incredibly difficult job. They have to consider so many factors.” The trial court said to the Family’s counsel, “I’d invite you to go on a ride-along, if you never have, just to find out what a deputy’s job is like.” The trial court granted the County’s motion for summary judgment.
DISCUSSION
A. STANDARD OF REVIEW
“A motion for summary judgment should be granted if the submitted papers show that ‘there is no triable issue as to any material fact,’ and that the moving party is entitled to judgment as a matter of law. [Citation.] A defendant meets his burden of showing that a cause of action has no merit if he shows that one or more of the elements of the cause of action cannot be established, or that there is a complete defense. [Citation.] Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists.” (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 229.)
“In reviewing a trial court’s ruling on a motion for summary judgment, the reviewing court makes ‘ “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” ‘ [Citation.] [¶] ‘On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court.’ ” (Bains v. Moores (2009) 172 Cal.App.4th 445, 454-455.)
In the trial court, the County made 55 objections to the Family’s evidence. At the hearing, the trial court said, “The Court is overruling all evidentiary objections by both plaintiffs and defendants in this matter.” In its respondent’s brief, the County contends the trial court erred by overruling its objections to the declarations of Richard B. Goodman, who was the Search and Rescue Resource Officer for the New Mexico State Police from 1994 to 2002, and to Ken Zafren, M.D., who is an emergency physician with expertise in hypothermia.
Our understanding of the County’s argument is as follows: If the Family is correct that the trial court erred in its analysis of the summary judgment motion, then those errors are harmless. (See Code Civ. Proc., § 906 [respondents can argue error within a prejudice analysis].) The errors are harmless because if the trial court had sustained the County’s objections to Goodman’s and Zafren’s declarations then it is probable summary judgment would have been granted because there would not be a triable issue of material fact. (See Code Civ. Proc., § 475 [“a different result would have been probable if such error . . . had not occurred”].) The County’s argument is not persuasive because we do not need to consider the Family’s evidence due to the County failing to meet its burden to show the causes of action have no merit.
In a motion for summary judgment, the moving party, in this case the County, bears the burden of demonstrating the causes of action lack merit. (Code Civ. Proc., § 437c, subd. (p)(2).) In the County’s motion for summary judgment, it asserted the Family’s causes of action had no merit because the County’s employees’ decision to suspend the search was objectively reasonable. The County’s argument fails to specifically address the other allegations in the Family’s TAC, such as Hall’s alleged negligence in conducting the search from his living room. In the TAC, within the wrongful death cause of action, the Family alleged, “It is a reckless disregard for life for Lt. Hall to manage a wilderness search from a home living room.” Other allegations in the Family’s TAC were that the County acted with gross negligence by (1) not involving personnel who knew the CNF, (2) not deploying the ROVE team on the night of March 1, and (3) not consulting a medical professional regarding hypothermia and Marin’s possible injuries.
The County focused only on the decision to suspend the search for the night, but the Family is also suing due to the manner in which the search was conducted prior to the search being suspended. In the motion for summary judgment, the County failed to address all of the Family’s allegations of gross negligence. Thus, the County did not meet its burden of demonstrating the causes of action lack merit. (Code Civ. Proc., § 437c, subd. (p)(2) [defendant bears the burden of establishing the “cause of action has no merit”].)
Because the County did not meet its burden to establish that the causes of action lack merit, the burden did not shift to the Family to demonstrate a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Therefore, any error related to rulings on the County’s evidentiary objections is irrelevant in that the Family’s evidence need not be considered. Accordingly, we are not persuaded by the County’s assertion that any error alleged by the Family can be found harmless.
Next, on appeal, the County renews its objections to Goodman’s and Zafren’s declarations. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 [renewed objections on appeal when the trial court failed to rule on the objections]; Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1089 [same].) The County asserts that the Family relies almost exclusively on Goodman’s and Zafren’s declarations in the Family’s appellants’ opening brief, so if the declarations are inadmissible then the Family’s appellate argument fails. It is unnecessary to rule upon the County’s renewed objections because Goodman’s and Zafren’s declarations are not relevant to resolving the alleged errors relating to the immunity defenses. Accordingly, we will not rule upon the County’s renewed objections.
C. IMMUNITY FOR RESCUE PERSONNEL
The Family contends the immunity for rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)) does not support a grant of summary judgment.
Health and Safety Code section 1799.107, subdivision (b), provides, “[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”
In the wrongful death cause of action, the Family alleged, “Further, the [County] knew that the injured Marin was going to be left in predicted cold temperatures that could expose him to hypothermic conditions and jeopardize his life, but through gross negligence, the [County] let Marin die on [its] watch.” As explained ante, the County did not establish that the Family’s cause of action lacks merit. Therefore, at this stage of the proceedings, there is merit to the Family’s gross negligence allegations.
If we assume, without deciding, that Health and Safety Code section 1799.107, subdivision (b), applies in this case, it would not support a grant of summary judgment because, at this stage, it does not provide a complete defense given the gross negligence allegations. (See Mallard Creek Industries v. Morgan (1997) 56 Cal.App.4th 426, 438 [it is error to grant summary judgment unless the defense is “a complete defense to the entire action”].) Accordingly, summary judgment could not be granted on the basis of the immunity afforded rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)).
D. IMMUNITY FOR FAILING TO PROVIDE SUFFICIENT POLICE PROTECTION
The Family contends the immunity for failing to provide sufficient police protection does not apply in this case.
Section 845 provides, in relevant part, “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” Section 845 “was designed to prevent political decisions of policy-making officials of government from being second-guessed by judges and juries in personal injury litigation. [Citation.] In other words, essentially budgetary decisions of these officials were not to be subject to judicial review in tort litigation.” (Mann v. State of California (1977) 70 Cal.App.3d 773, 778-779, fn. omitted.) “Thus, section 845 was not intended to provide immunity against a particular police officer’s negligence in the performance of his duty in a particular situation.” (Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1402.)
The Family is not suing the County for budgetary or political decisions. The Family is suing due to the alleged negligence of particular County employees. The County asserts the Family’s lawsuit is partially based upon a failure to provide adequate search and rescue training to its Sheriff’s Department personnel. However, the County cites to the Family’s appellants’ opening brief, not the TAC or the Family’s opposition to the summary judgment motion, to support its argument. In the TAC, the Family alleges the County had the ROVE team and if it had been utilized, then it “would have located Marin on the Evening of March 1, 2014.” The Family specifically alleges, “The COUNTY failed to deploy trained personal [sic] to manage . . . critical decisions concerning Mr. Marin.” In our reading of the TAC, the Family is not asserting that the County failed to train its personnel, but rather that the County was negligent in failing to deploy the trained personnel it had.
The County asserts that the failure to deploy the ROVE team is protected under section 845. In support of that argument, the County cites Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6. In that case, the victim called the police and said her estranged husband was coming to her residence to kill her. The police told the victim to call them back when her husband was at the house. Forty-five minutes later, the victim’s husband stabbed her to death. The police arrived after the victim died. The appellate court explained that the wrongful death cause of action failed because the police had immunity under section 845. (Hartzler, at p. 8.) The appellate court explained that the exception to section 845 is when there is a “voluntary assumption by the public entity . . . . Even though there is initially no liability on the part of the government for its acts or omissions, once it undertakes action on behalf of a member of the public, and thereby induces that individual’s reliance, it is then held to the same standard of care as a private person or organization.” (Hartzler, at p. 9.) The appellate court concluded that the plaintiff failed to plead facts supporting a special relationship between the victim and the police. (Id. at p. 10.)
In other words, Hartzler established that section 845 provides immunity when the complaint concerns a general failure of policing, i.e., the police should have come to my aid but they did not come, but section 845 does not provide immunity when the complaint concerns the manner in which police executed a particular undertaking after a special relationship has developed. (See Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 317 (dis. opn. of P.J. Kline) [” ‘where there exists a special relationship . . . liability may be imposed irrespective of the immunity granted by . . . section 845’ “], citing Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6.) In the instant case, the Family is complaining that the County had a special relationship with Marin and that the County was negligent in searching for Marin. Therefore, the County’s reliance on Hartzler is misplaced.
E. IMMUNITY FOR DISCRETIONARY DECISIONS
The Family contends the trial court erred in granting summary judgment based upon the immunity afforded to governmental discretionary decisions (§ 820.2).
Section 820.2 provides, “[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” “Discretion” is not to be read literally because nearly every act involves some discretionary choice ” ‘ “even if it involve[s] only the driving of a nail.” ‘ ” (Johnson v. State (1968) 69 Cal.2d 782, 787-790.) In eschewing a literal approach to the term “discretion,” concentration has been placed on policy, in particular, “whether the agency in a particular case should have immunity.” (Id. at pp. 789-790.)
Policy decisions made by the legislative and executive branches are subject to immunity because review of those decisions “would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” (Johnson v. State, supra, 69 Cal.2d at p. 793.) As an example, judicial immunity applies to the California Division of Juvenile Justice’s “determination of whether to place a youth on parole” because that decision involves “the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination.” (Id at p. 795, fn. omitted.) By contrast, judicial immunity does not apply to the “determination as to whether to warn the foster parents [of a juvenile parolee] of latent dangers facing them” because “to the extent that a parole officer consciously considers pros and cons in deciding what information, if any, should be given, he makes such a determination at the lowest, ministerial rung of official action. Judicial abstinence from ruling upon whether negligence contributed to this decision would therefore be unjustified; coupled with the administrative laxness that caused the loss in the first instance, it would only result in the failure of governmental institutions to serve the injured individual.” (Id. at pp. 795-796.)
In the County’s points and authorities in support of its motion for summary judgment, it asserted Hall made a discretionary decision in deciding to suspend the search for the night. The County did not cite specific evidence to support its assertion that a discretionary decision was made; rather, the County wrote that the evidence was “addressed above.” We infer the County was referring to the “facts” section of its points and authorities.
In the “facts” section, the County wrote, “[Hall] discussed and evaluated all the available information and weighed the risks and benefits of a night time [sic] search. [Citations.] Lt. Hall was aware of the risks of [Marin] freezing to death [citation] but Lt. Hall and his supervisor Chief Deputy Alm made a discretionary risk/benefit decision that the risks to search personnel of a further night search outweighed the potential of locating [Marin] in the dark and they make a discretionary decision not to conduct additional searches in the [CNF] until morning. [Citation.] The factors they considered included: [¶] 1. The rain and thick fog . . . [¶] 2. [Marin’s] location was only vaguely known . . . [¶] 3. Visibility was extremely limited . . . [¶] 4. The rain and fog made the trail dangerous . . . [¶] 5. County employees were not familiar with the area . . . .”
The County’s argument in the points and authorities is focused on the decision to suspend the search, but the Family’s lawsuit is not solely focused on the decision to suspend the search. The Family is also suing due to manner in which the search was conducted prior to the search being suspended. For example, the Family complains of not involving personnel who knew the CNF and not deploying the ROVE team on the night of March 1.
In the County’s brief to this court, the County takes the position that every decision involved in the search was a discretionary decision and that all of those discretionary decisions deserve immunity. The County does not direct this court to evidence indicating what decisions Hall made during the search, or to evidence that Hall weighed and balanced particular factors in making those decisions. Additionally, the County fails to explain why every decision Hall made during the search process is deserving of immunity under section 820.2. (See Johnson v. State, supra, 69 Cal.2d at pp. 789-790 [“discretionary decision” is not meant literally; whether immunity applies is a policy question].)
If the County seeks to have every material search decision Hall made protected under section 820.2 then it needs to provide evidence of what material decisions were made, provide evidence of the discretion exercised in making those decisions, and provide argument as to why each of those decisions is deserving of immunity under section 820.2. Without that information, it was not proper to grant summary judgment pursuant to the discretionary decision immunity (§ 820.2) because the County only addressed a portion of the Family’s allegations. (See Mallard Creek Industries v. Morgan, supra, 56 Cal.App.4th at p. 438 [it is error to grant summary judgment unless the defense is “a complete defense to the entire action”].)
F. CONCLUSION
In sum, it has not been shown that the causes of action lack merit and the County failed to demonstrate that it has a complete defense to the entire TAC. Therefore, we conclude the trial court erred and the grant of summary judgment must be reversed.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order granting summary judgment. Appellants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
——–
Footnotes:
1. This court previously issued an opinion in this case reversing the trial court’s sustaining of the County’s demurrer to the Family’s second amended complaint. (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051.)
2. In the TAC, the deputy’s last name is spelled Zaborowski. In the motion for summary judgment, the deputy’s last name is spelled Zabrowski. In a declaration by Lieutenant Hall, the deputy’s name is spelled different ways including Zaborwski. We use the Zaborowski spelling because that is the spelling used in Deputy Zaborowski’s declaration.
3. All subsequent statutory references will be to the Government Code unless otherwise indicated.
4. A harmless error analysis typically follows a finding of error. In this case, we begin with the County’s assertion that the trial court’s error is harmless because the triable issue of material fact matter discussed as part the harmless error analysis will simplify our discussion post of the Health and Safety Code section 1799.107, subdivision (b), immunity.
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Forum non conveniens is a legal term meaning the place where the litigation is occurring is not the right place for the lawsuit to occur.
Posted: July 5, 2021 Filed under: California, Mountain Biking | Tags: California, Canada, Forum non conveniens, Fox Factory, Fox Racing Shox, Mountain biking, SRAM Leave a commentIn this case a mountain bike manufacturer sued in California by a Canadian plaintiff for an accident in Canada used the rule to move the case to Canada.
It did not hurt the manufacturer that the plaintiff was playing games with the court and the plaintiff’s attorneys stretched the law in directions the appellate court did not find appropriate.
Fox Factory, Inc v. The Superior Court of Santa Clara County, 11 Cal.App.5th 197, 217 Cal.Rptr.3d 366
State: California, California Court of Appeals, Sixth District
Plaintiff At the Appeal: Fox Factory, Inc., doing business as Fox Racing Shox
Defendant at the Appeal: The Superior Court of Santa Clara County
Plaintiff in the base case: Peter Isherwood
Defendant in the base case: Fox Factory, Inc., doing business as Fox Racing Shox
Plaintiff Claims: negligence, strict products liability, breach of the implied warranty of merchantability, and breach of the implied warranty for a particular purpose
Defendant Defenses: forum non conveniens (the lawsuit is in the wrong place)
Holding: Sent back to the lower court for further evaluation (defendant Fox won)
Year: 2017
Summary
There are rules about where lawsuits can be brought and there are equitable rules on where lawsuits can be brought. The plaintiff wants to sue in the place where he or she has the greatest chance of winning and getting the most money. The defendant wants to be sued where they have the greatest chance of winning or paying the least amount of money. The court wants the lawsuit to be in a place that has the most fairness to both parties to the litigation.
Here the case was moved from California to Canada for equitable reasons, the best place for this lawsuit was Canada.
Facts
Plaintiff Isherwood is a Canadian citizen and resident of British Columbia. Fox, a California corporation, manufactures bicycle parts, including front fork racing shocks. On April 24, 2011, plaintiff was mountain biking downhill in British Columbia on a full-suspension mountain bike purchased from Oak Bay Bikes, a retail bicycle shop in British Columbia. The mountain bike was assembled with specialized component parts selected by plaintiff from various manufacturers, including a frame manufactured by Specialized Bicycle Components, Inc. (Specialized), a California corporation; an adapter made by Full Speed Ahead, Inc., a Washington corporation; a headset made by King Cycle Group, Inc. (King), an Oregon corporation; and Fox Vanilla 36 RC forks which ” a lot of professionals rode.” According to plaintiff’s first amended complaint, the steerer tube used in the Fox racing shocks broke as plaintiff landed a jump. Plaintiff was thrown forward, resulting in a spinal cord injury.
Plaintiff filed this action on April 22, 2013, alleging negligence, strict products liability, breach of the implied warranty of merchantability, and breach of the implied warranty for a particular purpose. Tamara Jayne Bickerton, who later became plaintiff’s wife,[2] also alleged loss of consortium, but she subsequently obtained dismissal of her claim with prejudice. In addition to Fox, plaintiff named Specialized, King, and Full Speed Ahead.
The following day, April 23, 2013, plaintiff filed another court action in Vancouver, British Columbia, naming as defendants SNC Cycles Ltd. (SNC Cycles) and three Doe corporations, as well as three individuals as John Doe defendants. In this pleading plaintiff alleged that the identities of the corporate and individual Doe defendants were unknown to him, even though the allegations were the same as those in the California action filed one day earlier. He also alleged that SNC Cycles was the owner and operator of Oak Bay Bicycles. As in the California action, plaintiff claimed that the negligence of these defendants was responsible for the April 24, 2011 accident that had caused his injuries.
The caption of the British Columbia pleading named ” Peter Dilwyn Iserwood” as plaintiff. According to Fox, the misspelling of plaintiff’s name, together with the intentional withholding of the defendants’ true names, precluded discovery of this lawsuit despite ” multiple searches” of the dockets of the Vancouver courts. In addition, plaintiff had testified in his October 2014 deposition that he had never been a plaintiff ” in a lawsuit other than this one.” He also answered ” no” to an interrogatory question about whether, in the past 10 years, he had ” filed an action or made a written claim or demand for compensation for [his] personal injuries.”
Analysis: making sense of the law based on these facts.
Forum non conveniens is an argument on where the litigation should be based. In this case, California or British Columbia, Canada. All other defendants that were California based or US based had been dismissed from the case so it was the Canadian plaintiff arguing that a US defendant should be sued in California.
Normally lawsuits are determined one of two ways. Where the accident happened or where the defendant resides. Usually, having the lawsuit in California because the defendant was based there would be enough. However, the way the plaintiff played the courts was a major issue in whether this litigation would be moved to Canada.
Forum non conveniens is an equitable relief available to the court. Equitable means it is the right thing to do. The court can bring the motion on its own or a party to the lawsuit can bring the argument saying that this lawsuit is not in the right place because.
California has a two-step process to determine if a case should be moved for equitable reasons.
Our Supreme Court in Stangvik set forth a two-step analysis for a court considering a forum non conveniens motion. ” A case-by-case examination of the parties, their dispute and the relationship of each to the state of California is the heart of the required analysis.” The court ” must first determine whether the alternate forum is a ‘suitable’ place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.
The first step is very broad in its meaning. Suitable place for trial means will the trial be fair, is the court system similar to the US system, will both parties get a fair shot at presenting their case. There is also a look at how moving the case will affect the courts and people of California.
The private interests are those of the litigants in the trial. What will the cost be to the parties to move the trial, will any judgment that is received be able to be executed. Meaning If the trial is moved to Canada, can a Canadian judgment be enforced in the US. The major issue is where is the best place to find the evidence and witnesses to help a jury make a decision.
The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” Also of potential concern is ” the interest in trying the case in a forum familiar with the applicable law, and the interest in avoiding unnecessary conflicts of laws.”
After reviewing the legal and equitable issues involved in making a decision to move the trial, the court looked at the plaintiff’s arguments to not move the case and the plaintiff’s arguments in general. Basically, the court slapped the plaintiff around for trying to stretch the law beyond reason and playing games with the court.
In this part of the opinion the court brought forth several statements about the plaintiff.
We will ignore plaintiff’s inappropriate, two-paragraph discussion of the court’s analysis in that case
The court then went on and told the plaintiff every reason why their legal arguments were not only incorrect, but just plain wrong.
The court had already reviewed the games the plaintiff played in filing two lawsuits in different locations and doing so in a way that made the second lawsuit difficult to find. Then the plaintiff lied under oath about the second lawsuit.
The court found the reasons for having the case in Canada were compelling.
Fox argued that British Columbia, where the Canadian case was ongoing, was a suitable forum because plaintiff was a British Columbia resident, the accident took place in British Columbia, and all relevant evidence, medical personnel, and percipient witnesses were located there. Fox believed it was at an unfair disadvantage because it had ” no way to compel the appearance at trial of any of the crucial Canadian witnesses,” whereas plaintiff would be able to obtain the cooperation of his most favorable witnesses.
The court did not order the case moved to Canada, but sent the case back to the trial court to review the motions of the defendant under the proper legal standard. That means the lower court had to review the issues again and move the case to Canada.
So Now What?
The first rule of winning a lawsuit is represent the honest person in the courtroom. The underlying tone of this entire decision was the court had caught the plaintiff lying to the defendants and playing games with the legal system. That never flies. Judges hate it and juries see through it.
Here the witnesses, evidence, physicians and other health care providers to the plaintiff could easily be brought into court by both sides and for a lot less money.
Also, the standards required to win a case like this in Canada are better for the defendant and the damages if the defendant loses will be much lower in Canada.
What do you think? Leave a comment.
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Fox Factory, Inc v. The Superior Court of Santa Clara County, 11 Cal.App.5th 197, 217 Cal.Rptr.3d 366
Posted: July 5, 2021 Filed under: California, Legal Case, Mountain Biking | Tags: California, Forum non conveniens, Fox Factory, Fox Factory Racing, Fox Racing Shox, Mountain biking Leave a commentFox Factory, Inc v. The Superior Court of Santa Clara County, 11 Cal.App.5th 197, 217 Cal.Rptr.3d 366
11 Cal.App.5th 197
217 Cal.Rptr.3d 366
Fox Factory, Inc., Petitioner,
v.
The Superior Court of Santa Clara County, Respondent; PETER ISHERWOOD, Real Party in Interest
No. H043648
California Court of Appeals, Sixth District
April 27, 2017
Superior Court of Santa Clara County, No.: 1-13-CV-245098, Beth McGowen, Judge.
11 Cal.App.5th 198
[Copyrighted Material Omitted]
11 Cal.App.5th 199
COUNSEL
Paul Rosenlund, Paul J. Killion, Justin Fields and Duane Morris for Petitioner.
No appearance for Respondent.
Law Office of Gary L. Simms, Gary L. Simms; Rouda, Feder, Tiejen & McGuinn and Cynthia McGuinn for Real Party in Interest.
Opinion by Elia, J., with Premo, Acting P. J., and Grover, J., concurring.
OPINION
ELIA, J.
11 Cal.App.5th 200
[217 Cal.Rptr.3d 368] Petitioner Fox Factory, Inc., doing business as Fox Racing Shox (Fox), is the defendant in an action for personal injuries brought in Santa Clara County by plaintiff and real party in interest Peter Isherwood. Fox moved to dismiss or stay plaintiff’s lawsuit under the doctrine of forum non conveniens, but the superior court denied the motion, citing authority requiring California to be a ” seriously inconvenient” forum for the motion to succeed. Fox seeks writ review, contending that the court applied the wrong legal standard in denying the motion. We agree. Accordingly, we will grant the petition and direct the superior court to reconsider Fox’s motion under the proper standard.
Background
Plaintiff Isherwood is a Canadian citizen and resident of British Columbia. Fox, a California corporation, manufactures bicycle parts, including front fork racing shocks. On April 24, 2011, plaintiff was mountain biking downhill in British Columbia on a full-suspension mountain bike purchased from Oak Bay Bikes, a retail bicycle shop in British Columbia. The mountain bike was assembled with specialized component parts selected by plaintiff from various manufacturers, including a frame manufactured by Specialized Bicycle Components, Inc. (Specialized), [217 Cal.Rptr.3d 369] a California corporation; an adapter made by Full Speed Ahead, Inc., a Washington corporation; a headset made by King Cycle Group, Inc. (King), an Oregon corporation; [1] and Fox Vanilla 36 RC forks which ” a lot of professionals rode.” According to plaintiff’s first amended complaint, the steerer tube used in the Fox racing shocks broke as plaintiff landed a jump. Plaintiff was thrown forward, resulting in a spinal cord injury.
Plaintiff filed this action on April 22, 2013, alleging negligence, strict products liability, breach of the implied warranty of merchantability, and breach of the implied warranty for a particular purpose. Tamara Jayne Bickerton, who later became plaintiff’s wife,[2] also alleged loss of consortium, but she subsequently obtained dismissal of her claim with prejudice. In addition to Fox, plaintiff named Specialized, King, and Full Speed Ahead.
The following day, April 23, 2013, plaintiff filed another court action in Vancouver, British Columbia, naming as defendants SNC Cycles Ltd. (SNC Cycles) and three Doe corporations, as well as three individuals as John Doe defendants. In this pleading plaintiff alleged that the identities of the corporate and individual Doe defendants were unknown to him, even though the
11 Cal.App.5th 201
allegations were the same as those in the California action filed one day earlier. He also alleged that SNC Cycles was the owner and operator of Oak Bay Bicycles. As in the California action, plaintiff claimed that the negligence of these defendants was responsible for the April 24, 2011 accident that had caused his injuries.
The caption of the British Columbia pleading named ” Peter Dilwyn Iserwood” as plaintiff. According to Fox, the misspelling of plaintiff’s name, together with the intentional withholding of the defendants’ true names, precluded discovery of this lawsuit despite ” multiple searches” of the dockets of the Vancouver courts. In addition, plaintiff had testified in his October 2014 deposition that he had never been a plaintiff ” in a lawsuit other than this one.” He also answered ” no” to an interrogatory question about whether, in the past 10 years, he had ” filed an action or made a written claim or demand for compensation for [his] personal injuries.”
Full Speed Ahead obtained summary judgment in the California action on December 18, 2014. Specialized and King likewise obtained summary judgment on February 19, 2016, leaving only Fox as a defendant in this case.
On March 1, 2016, Fox moved to dismiss or, in the alternative, stay all further proceedings in the California case on the ground of forum non conveniens. Citing Code of Civil Procedure sections 410.30, subdivision (a),[3] and 418.10, subdivision (a)(2), Fox argued that British Columbia, where the Canadian case was ongoing, was a suitable forum because plaintiff was a British Columbia resident, the accident took place in British Columbia, and all relevant evidence, medical personnel, and percipient witnesses were located there. Fox believed it was at an unfair disadvantage because it had ” no way to compel the appearance at trial of any of the crucial Canadian witnesses,” whereas plaintiff would be able to obtain the cooperation of his most favorable witnesses. Furthermore, Oak Bay Bikes, the [217 Cal.Rptr.3d 370] British Columbia retailer, was a defendant in the Canadian action. The two cases should be tried together, Fox argued, to prevent piecemeal litigation, assure plaintiff a full recovery, and ensure the participation of Oak Bay Bikes, which was potentially liable. Finally, Fox argued that public interests favored sending this case–which could result in a lengthy, technically complex trial–to Canada, to avoid the further congestion of California’s already ” overburdened” courts by a plaintiff with no connection to this state. Fox stipulated that it would subject itself to jurisdiction in British Columbia.
Plaintiff responded that Fox’s motion was precluded as a matter of law because it had already taken advantage of California’s legal process by conducting discovery in the case. Plaintiff did not dispute that British Columbia was a suitable forum, but he maintained that California was ” equally suitable.” In his view, the private and public interest factors did not support a conclusion that California was a ” seriously inconvenient forum.”
Fox disputed plaintiff’s claims of discovery abuse and pointed to misstatements in plaintiff’s own discovery responses. It explained that despite its docket searches, it had not learned of the British Columbia lawsuit until June 2015, through its communication with Oak Bay Bikes (which had not been named in the California action). Fox asserted that plaintiff had ” deliberately concealed” the British Columbia litigation. Not only was plaintiff’s name misspelled in the caption of the British Columbia complaint, but he had withheld the identities of the defendants by suing them as Doe corporations and alleging that he was unaware of their identities. One of those Doe defendants was Fox itself, through the allegation of the negligent design or manufacture of the steerer tube.[4] Fox also pointed out that even after it learned about the British Columbia lawsuit, it ” lacked universal consensus among defendants” and therefore was unable to seek a stay or dismissal until the other defendants had obtained summary judgment.
On April 19, 2016, the superior court denied Fox’s motion. It rejected plaintiff’s theory that Fox had made an untimely request after conducting extensive discovery: ” Regardless of whether plaintiff was forthcoming about having filed a lawsuit in Canada,” plaintiff did initiate suit there arising from the same facts, and Fox ” could not have brought this motion sooner due to the involvement of other defendants who are no longer in the case.” The court further acknowledged the parties’ stipulation that British Columbia was a suitable forum. It then proceeded to weigh the private and public interest factors it found relevant. Invoking the test articulated in Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611 [41 Cal.Rptr.2d 342] ( Ford ), the court stated that ” [t]he inquiry is not whether some other state or country provides a better forum than does California, ‘but whether California is a seriously inconvenient forum.’ Ford Motor Co. v. Insurance Co. of North America [ , supra, ] 35 Cal.App.4th 604, 611 (quoting Northrop Corp. v. American Motorists Ins. Co. [(1990)] 220 Cal.App.3d [1553,] 1561 [270 Cal.Rptr. 233]). While there are some factors [that] weigh against maintaining this action in California, others weigh in favor of proceeding here, such as whether a California defendant is manufacturing and selling defective parts. After balancing [217 Cal.Rptr.3d 371] several factors, the Court concludes that California is not an inconvenient forum.” On November 4, 2016, after receiving Fox’s petition for writ of mandate and plaintiff’s preliminary opposition, we issued an order to show cause. Plaintiff filed a return, followed by Fox’s reply.
Discussion
1. Legal Framework
The doctrine of forum non conveniens is rooted in equity. It allows a court to decline to exercise its jurisdiction over a case when it determines that the case ” may be more appropriately and justly tried elsewhere.” ( Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 [1 Cal.Rptr.2d 556, 819 P.2d 14] ( Stangvik ).) The Legislature endorsed the application of this principle by enacting section 410.30, which states, in subdivision (a), ” When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” As explained in the Judicial Council’s comment to this section, the provision ” authorizes a court to decline to exercise its jurisdiction in appropriate instances on the ground that the plaintiff has unfairly or unreasonably invoked the jurisdiction of an inconvenient forum.” (Judicial Council of Cal., com., reprinted at Deering’s Ann. Code Civ. Proc. (2015 ed.) foll. § 410.30, p. 337.)
Our Supreme Court in Stangvik set forth a two-step analysis for a court considering a forum non conveniens motion. ” A case-by-case examination of the parties, their dispute and the relationship of each to the state of California is the heart of the required analysis.” ( National Football League v. Fireman ‘ s Fund Ins. Co. (2013) 216 Cal.App.4th 902, 921 [157 Cal.Rptr.3d 318] ( National Football League ).) The court ” must first determine whether the alternate forum is a ‘suitable’ place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” ( Stangvik, supra, 54 Cal.3d at p. 751, citing Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 259-261 [70 L.Ed.2d 419, 102 S.Ct. 252] ( Piper ) and Gulf Oil Corp. v. Gilbert (1947) 330 U.S. 501, 507-509 [91 L.Ed. 1055, 67 S.Ct. 839].) Also of potential concern is ” the interest in trying the case in a forum familiar with the applicable law, and the interest in avoiding unnecessary conflicts of laws.” ( Monegro v. Rosa (9th Cir. 2000) 211 F.3d 509, 512.) These public and private interests are to be ” applied flexibly, without giving undue emphasis to any one element.” ( Stangvik, supra, at p. 753.)
The burden of proof is on the defendant, as the party asserting forum non conveniens. ( Stangvik, supra, 54 Cal.3d at p. 751.) On appeal, the ” threshold” determination–the suitability of the alternative forum–is examined de novo. ( Id. at p. 752, fn. 3; American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436 [104 Cal.Rptr.2d 670]; [217 Cal.Rptr.3d 372] Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1528 [126 Cal.Rptr.3d 135].) We review the ultimate ruling, however, for abuse of discretion, and the lower court’s ruling is entitled to ” substantial deference.” ( Stangvik, supra, at p. 751.)
Before proceeding to the merits of Fox’s petition, we briefly address plaintiff’s renewed assertion that Fox’s motion was untimely, because it could have sought a stay earlier but simply ” laid [ sic ] back and waited” for the other defendants to secure a favorable dismissal. We reject plaintiff’s argument, as did the superior court. The court was entitled to find that Fox could not practically have brought its motion any sooner while the other defendants remained in the case. Plaintiff fails to show error in either the court’s reasoning or its conclusion on this point.
2. The ” Seriously Inconvenient” Standard
The essence of Fox’s argument is that the superior court applied the wrong legal standard in denying Fox’s motion. Because plaintiff is a Canadian citizen, not a California resident, Fox contends that plaintiff was entitled to less deference in his forum choice, and it should not have been required to show that California was a seriously inconvenient forum in order to obtain a stay or dismissal.[5] Plaintiff responds that whether a plaintiff is a resident or nonresident is not dispositive: although the forum choices of nonresidents enjoy less deference than those of residents, ” both types of plaintiffs [ sic ] have the same burden–to show that California is seriously inconvenient. Fox muddles these two principles.”
In his return, plaintiff clarifies that it is the defendant that has this burden. He nonetheless adheres to the assertion that the required showing is a seriously inconvenient forum, even when the plaintiff is not a resident of California. Plaintiff even urges this court to reach the same result as we did in one of our unpublished decisions, as if withholding the name of the case allows it to rely on that opinion ” [t]o ensure consistency of decisional principle.” We will ignore plaintiff’s inappropriate, two-paragraph discussion of the court’s analysis in that case. (Cal. Rules of Court, rule 8.1115(a).) Suffice it to say that this court has never adopted the ” seriously inconvenient” standard advocated by plaintiff.
The primary source of the standard on which the court and plaintiff relied is Ford. In Ford the Second Appellate District, Division One, reversed a dismissal based on forum non conveniens in an action brought by a California plaintiff against multiple liability insurers. The court imposed on the defendants ” the burden of producing sufficient evidence to overcome the strong presumption of appropriateness attending plaintiff’s choice of forum. That is, the inquiry is not whether Michigan provides a better forum than does California, but whether California is a seriously inconvenient forum.” ( Ford, supra, 35 Cal.App.4th at p. 611; see also Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1463-1464 [51 Cal.Rptr.3d 301] [upholding stay based on finding that California was a seriously inconvenient forum for Texas plaintiffs suing for toxic exposure of decedent in Texas]; Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 760 [59 Cal.Rptr.2d 229] [217 Cal.Rptr.3d 373] [finding balance of public and private interests to favor Montana notwithstanding plaintiffs’ insistence that California was not ” seriously inconvenient” ]; In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 691 [36 Cal.Rptr.3d 286] [upholding stay in favor of litigation in Germany based on trial court’s determination that California was a seriously inconvenient forum].)
Plaintiff insists that Ford articulated the proper test for determining Fox’s forum non conveniens motion. We disagree. First, applying the ” seriously inconvenient” standard to plaintiff’s lawsuit would amount to according his forum preference ” great weight,” as did the court in Ford. ( Ford, supra, 35 Cal.App.4th at p. 610.) But to do so here would contravene the guidance of our Supreme Court in Stangvik, which clearly explained that the forum choice of a foreign plaintiff is not entitled to a presumption of convenience. ( Stangvik, supra, 54 Cal.3d at pp. 754-755; see Piper, supra, 454 U.S. at pp. 255-256 [approving of distinction between a resident plaintiff’s choice of home forum and a foreign plaintiff’s choice, which ” deserves less deference” ].) In discussing the residence of the parties as a factor in the analysis of private and public interests, the Supreme Court in Stangvik limited the prior appellate holdings that the plaintiff’s forum choice ” should rarely be disturbed unless the balance is strongly in favor of the defendant.” ( Stangvik, supra, at p. 754.) ” [T]he reasons advanced for this frequently reiterated rule apply only to residents of the forum state: (1) if the plaintiff is a resident of the jurisdiction in which the suit is filed, the plaintiff’s choice of forum is presumed to be convenient [citations]; and (2) a state has a strong interest in assuring its own residents an adequate forum for the redress of grievances [citation]. … Where, however, the plaintiff resides in a foreign country, Piper holds that the plaintiff’s choice of forum is much less reasonable and is not entitled to the same preference as a resident of the state where the action is filed. ( Piper, supra, 454 U.S. at p. 256.)” ( Stangvik, supra, at pp. 754-755.) Accordingly, the choice of California as a forum by the Stangvik plaintiffs–all of whom were residents of Sweden or Norway–was ” not a substantial factor in favor of retaining jurisdiction here.” ( Id. at p. 755.)
Even the court in Ford acknowledged that under Stangvik ” a foreign, noncitizen plaintiff’s choice of forum is entitled to less deference.” ( Ford, supra, 35 Cal.App.4th at p. 611.) Northrop Corp. v. American Motorists Ins. Co., supra, 220 Cal.App.3d at page 1561 ( Northrop ), the case cited by the Ford court in support of its ” seriously inconvenient” language, did not employ such a standard; indeed, the Northrop court did not use that language at all. The focus of the court was on the ” substantial and ‘deeply rooted'” interests and policies according weight to a California resident ‘ s choice of forum. ( Id. at p. 1562.)
National Football League offers a more factually analogous and more cogent analysis than that of Ford. There the plaintiff football league (NFL) had its headquarters and its ” ‘physical center of operations’ ” in New York, and it therefore was deemed not to be a California resident as it had claimed to be, notwithstanding the location of three of its 32 teams. ( National Football League, supra, 216 Cal.App.4th at p. 919.) After the trial court granted the defendant insurers’ motions to stay NFL’s action against them, NFL appealed, contending that the court had abused its discretion in weighing the private and public interest factors. Among [217 Cal.Rptr.3d 374] its arguments was the assertion that the trial court had erred in not requiring the insurers to demonstrate that California was a seriously inconvenient forum. The appellate court (Second Dist., Div. Five) agreed with the trial court that this standard is inapplicable to a nonresident plaintiff.
Plaintiff complains that the National Football League court ” blithely dismissed” the Judicial Council comment to section 410.30, which states, ” Under the doctrine of inconvenient forum, a court, even though it has jurisdiction, will not entertain the suit if it believes that the forum of filing is a seriously inconvenient forum for the trial of the action.” But as noted in National Football League, the Supreme Court in Stangvik clarified that ” the basis of the inconvenient forum doctrine is the need to give preference to California residents and guard against the ‘” unchecked and unregulated importation of transitory causes of action for trial in this state.” ‘” ( National Football League, supra, 216 Cal.App.4th at p. 926, italics added.) We likewise reject plaintiff’s implicit suggestion that in every case great weight is required to overcome a nonresident plaintiff’s forum choice. Even if we were reviewing a dismissal order in a suit brought by a California resident–we would not subscribe to the analysis employed in Ford. And plaintiff’s position is all the more untenable in this case, as he is not even a United States citizen, a distinction highlighted in Stangvik. The superior court therefore erred in imposing a burden on Fox to show that California is a seriously inconvenient forum in order to obtain a dismissal or stay under the forum non conveniens doctrine.
” A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.” ( Paterno v. State of California (1999) 74 Cal.App.4th 68, 85 [87 Cal.Rptr.2d 754]; accord, Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1517 [34 Cal.Rptr.3d 458]; see also Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [101 Cal.Rptr.3d 758, 219 P.3d 736] [” An abuse of discretion is shown when the trial court applies the wrong legal standard” ].) Here, the superior court’s dismissal of Fox’s motion based on the ” seriously inconvenient” standard amounted to an abuse of discretion which cannot stand.
In his preliminary opposition to Fox’s petition plaintiff maintains that if erroneous, the ruling was not prejudicial. He relies on article VI, section 13, of the California Constitution– which precludes reversal absent a miscarriage of justice[6]–and on Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [34 Cal.Rptr.2d 607, 882 P.2d 298], which affirmed a judgment where the asserted instructional error was harmless. Even if the procedural posture of this case were comparable to that of Soule and judicial applications of article VI, section 13, we would not speculate as to how the court would have ruled had it not believed it was obligated to grant the motion only if California were a seriously inconvenient forum. As noted earlier, it is for the superior court to weigh and flexibly apply the private and public interests at stake. ( Stangvik, supra, 54 Cal.3d at p. 753.) Here it is conceivable that upon [217 Cal.Rptr.3d 375] reconsidering the motion under the correct standard the court will find that equity and the balance of private and public interests compel the granting of the motion.[7] Accordingly, we cannot accede to plaintiff’s request that we deem the error harmless as a matter of law. By the same token, we decline Fox’s request to direct the court to stay or dismiss the California action. Instead, we must remand the matter to permit the proper exercise of the superior court’s discretion.
Disposition
Let a peremptory writ of mandate issue directing respondent court to set aside its April 19, 2016 order denying petitioner Fox’s motion to dismiss or stay plaintiff’s lawsuit, and to reconsider the motion in accordance with the correct standard for evaluating this forum non conveniens motion. The temporary stay is vacated effective upon the finality of this opinion. Costs in this original proceeding are awarded to Fox.
Premo, Acting P. J., and Grover, J., concurred.
———
Notes:
[1]King was erroneously sued as Chris King Precision Components.
[2]Plaintiff and Bickerton did not have any officially recognized relationship until the date of their marriage, which plaintiff testified was July 12, 2014.
[3]All further statutory references are to the Code of Civil Procedure.
[4]The Vancouver ” Notice of Civil Claim” alleged: ” The steerer tube and other components of the SX Trail were designed, manufactured, marketed and distributed by the Defendants Doe Corporations #1, #2 and #3.”
[5]Plaintiff asserts that Fox forfeited its challenge by not presenting it to the superior court. He is incorrect. Fox argued vigorously in its reply that plaintiff was mischaracterizing the applicable standard.
[6]This constitutional provision states: ” No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)
[7]The court’s written order specifically identified only one of the Stangvik factors, by suggesting the relevance of ” whether a California defendant is manufacturing and selling defective parts.”
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
G-YQ06K3L262
Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: May 18, 2021 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.
Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.
This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.
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
$130.00 plus shipping
Artwork by Don Long donaldoelong@earthlink.net
New Book Aids Both CEOs and Students
Posted: August 1, 2019 Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line Leave a comment“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
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?
Posted: July 25, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line Leave a commentEveryone 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.
Posted: July 23, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentAn 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
$130.00 plus shipping
Need a Handy Reference Guide to Understand your Insurance Policy?
Posted: July 18, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line Leave a commentThis 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
Posted: July 11, 2019 Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line Leave a comment“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.
Cyclists injured on a bike path after running into a downed tree, could not recover because the association that assisted in taking care of the bike path owed no duty to the cyclists.
Posted: June 17, 2019 Filed under: Cycling, Mountain Biking, Texas, Uncategorized | Tags: balancing, bicycle, Bike Path, cases, Cause of action, City Park, contemporaneous, Dangerous Condition, Downed Tree, factors, Falling, Foreseeability, general negligence, grant summary judgment, Gross negligence, hearsay, injuries, Legal Duty, Mountain bike, negligence claim, no evidence, nonmovant, pet, Premises, Premises Liability, premises liability theory, scintilla, Summary judgment, summary judgment motion, Trail, Tree, Trial court, Yacht Club Leave a commentIf there is no duty, there is no liability. Always check to make sure there really is a duty owed to someone before you start to claim or defend negligence actions.
Citation: DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466, 2019 Tex. App. LEXIS 466, 2019 WL 311517
State: Texas; Court of Appeals of Texas, Second District, Fort Worth
Plaintiff: Norman Delamar
Defendant: Fort Worth Mountain Biker’s Association
Plaintiff Claims: general negligence and gross negligence
Defendant Defenses: No Duty
Holding: For the Defendants
Year: 2019
Summary
City parks had an agreement with the local cycling group to assist in keeping the bike pats in good shape. The ultimate responsibility for the bike paths was still held by the city. An injured cyclist who ran into a downed tree could not sue the cycling group because they owed no duty to the cyclists because the association did not have the authority from the city and did not accept a duty with the agreement with the city.
Facts
On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.
Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.
The city’s contract with the association outlined things the association was to do to assist the city in keeping the trail available and generally covered trail maintenance. The city did not give up its right to control and manage the park where the trails were located.
The trial court dismissed the plaintiff’s claims, and this appeal ensued.
Analysis: making sense of the law based on these facts.
The first issue the court reviewed was this, a negligence claim or a premises liability claim.
Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”
The differences are subtle, but:
To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.
The difference is, one is based on the actions of the defendant, and the other is based on a condition of the land.
While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence.
As similar as they may appear to be, you cannot recover on the same set of facts for both a negligence action and a premise’s liability action. Even the court stated understanding the differences could be “tricky.”
The trial court and appellate court found the plaintiff’s claims sounded in premise’s liability.
However, the court went on to discuss the plaintiff’s allegations that his claim was a negligence claim. The issue was whether the association had a legal duty to the plaintiff.
The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.”
Of the three, foreseeability as the dominant consideration, but not the sole consideration the court must review. Foreseeability alone is not sufficient to create a duty. “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.”
Although the association had some contractual responsibility for the trails, there was nothing the association could do about the trees. Only the city had the use of the chainsaws, and only the city could determine if a tree could be removed and then remove it.
And although it was foreseeable, a tree could fall on the trail; the issue required more analysis than that. The bike path was surrounded by thousands of trees. The plaintiff had ridden that path just two days earlier and admitted that the tree could have fallen two hours before he hit it. Although a tree falling was foreseeable, it was outside of the scope of something that you can do anything about, and on top of that the association had no authority to do anything about trees.
Finally, the agreement between the city and the association said nothing about the association agreeing to assume a legal duty to maintain the safety of the trails.
Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.
Because there could be no gross negligence if there was no general negligence, the plaintiffs gross and ordinary negligence claims were dismissed.
So Now What?
Foreseeability is a good thing for non-lawyers running a business or program to understand. Are your actions or inactions going to create a danger to someone.
The case does not state whether the city had any liability to the plaintiff, only the issues discussed in this decision were between the plaintiff and the defendant association.
More importantly, the court looked at trees falling as something that no one could really control. It was not liked anyone, the association or the city could come close to identifying trees that may fall in parks.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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trail, summary judgment, general negligence, premises liability, premises, trial court, legal duty, no evidence, summary judgment motion, pet, hearsay, grant summary judgment, premises liability theory, mountain bike, balancing, nonmovant, falling, dangerous condition, gross negligence, negligence claim, downed tree, contemporaneous, foreseeability, factors, cause of action, yacht club, scintilla, injuries, bicycle, cases
DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466
Posted: May 1, 2019 Filed under: Cycling, Legal Case, Mountain Biking, Texas | Tags: actual knowledge, Adopt a Park, Association, Bike Path, City Park, constructive knowledge, Cycling, Downed Tree, duty, Foreseeability, foreseeability of harm, foreseeable, Fort Worth Mountain Biker's Association, Forth Worth, Gateway, Gateway Park, Gross negligence, Negligence, No Duty, Park, Premises Liability, reasonable care, reasonable foreseeability of harm, Unreasonable Risk of Harm Leave a commentDeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466
Norman Delamar, Appellant
v.
Fort Worth Mountain Biker’s Association, Appellee
No. 02-17-00404-CV
Court of Appeals of Texas, Second District, Fort Worth
January 24, 2019
On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-283758-16
Before Sudderth, C.J.; Gabriel and Pittman, JJ.
MEMORANDUM OPINION
Bonnie Sudderth, Chief Justice.
I. Introduction
Appellant Norman DeLamar filed the underlying lawsuit against Appellee Fort Worth Mountain Biker’s Association (the Association) to recover for injuries he sustained when he was knocked off of his mountain bike after he struck a downed tree across a mountain bike trail at Gateway Park (Gateway). Norman claimed that the Association was negligent in failing to properly maintain a safe mountain bike trail as purportedly required by its contractual agreement with the City of Fort Worth (City). The trial court granted summary judgment on Norman’s claims against the Association. We will affirm.
II. Background
On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.
Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.[1] Norman asserted that through the Contract, the Association agreed to “assume responsibility for maintenance, construction and safety of the trails,” and as such owed “a duty to protect the general public from dangerous conditions such as falling trees.” Norman claimed that the Association had breached this alleged duty by
• failing to make any effort to ensure that the trees alongside of the bicycle trail were not a danger to cyclists;
• failing to implement any sort of safety procedure with respect to the danger of falling trees in high bicycle (and pedestrian) traffic areas;
• failing to maintain the trails to prevent dangerous conditions from occurring despite knowing the dangers associated with cycling;
• failing to provide cyclists with adequate safeguards, or any safeguards at all, to prevent dangerous conditions from occurring; and
• consciously disregarding the heath of the trees and the danger that they pose.
The Contract provides that the Association “shall perform all work and services hereunder as an independent contractor . . . . [and] shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder[.]” The Contract specifically provides that the Association “shall, at its sole cost and expense, construct and maintain the Trails in accordance with [the] Agreement,” and it defines “trail maintenance” as including, but not limited to, “repairing, replacing, and rebuilding trails or sections of trails that are eroding or in disrepair; pruning of trees; [and] removal of brush[.]” However, the Contract prohibits the Association from “trimming and pruning, until written approval is obtained from the Director [of the Parks and Community Services Department],” and from “remov[ing] any tree without prior written permission from the City Forester.” [Emphasis added.] Finally, the Contract expressly reserves the City’s right to control and access all portions of Gateway: “The City does not relinquish the right to control the management of the Parks, or the right to enforce all necessary and proper rules for the management and operation of the same. The City . . . has the right at any time to enter any portion of the Parks[.]”
The Association answered and then filed a no-evidence and traditional motion for summary judgment. In its motion, the Association asserted that there was no evidence that
• the Association was negligent as it owed Norman no duty with respect to the condition of the premises; or
• the Association owed a duty to keep the premises in reasonably safe condition, inspect the premise to discover any defects, or to make safe any defect or give an adequate warning of any dangers.
Although the Association clearly challenged the existence of any legal duty it owed to Norman, the Association’s motion primarily argued that Norman’s claim sounded in premises liability rather than general negligence and that he could not artfully plead a general negligence claim when his injuries were caused by a premises defect. Norman filed a response and attached, inter alia, a short affidavit and an expert report from an arborist, Matthew Clemons. In his response, Norman appeared to adopt the Association’s characterization of his claim as one for premises liability and in doing so focused on his status, arguing that he was an invitee. Indeed, Norman’s “Conclusion” sought denial of the summary judgment motions because there was “more than enough credible evidence to find that the [Association] is liable under a premises liability theory for this incident[.]” [Emphasis added.] The Association filed a reply and objected to the expert report from Clemons as inadmissible hearsay.
Following the hearing on the Association’s no evidence and traditional motions for summary judgment, the trial court requested letter briefs and took the matter under advisement. In his letter brief, Norman altered his prior position and for the first time asserted that the Association’s summary judgment theory was flawed because his suit against the Association was based on a general negligence theory, not a premises liability theory. The trial court signed an order sustaining the Association’s objections to Clemons’s expert report and a separate order granting the Association’s no evidence and traditional motions for summary judgment.
On appeal, Norman contends the trial court erred by construing his claim as one for premises liability rather than general negligence and abused its discretion by sustaining the Association’s hearsay objection to Clemons’s report.
III. Norman’s Negligence Claim
A. Standard of Review
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant’s cause of action is entitled to summary judgment as to that cause of action. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).
After an adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. See Tex. R. Civ. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. A mere scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See id.
When reviewing traditional and no evidence summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.-Tyler 2008, pet. denied).
All grounds in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). “When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
When a party moves for both a traditional and a no evidence summary judgment, we generally first review the trial court’s summary judgment under the no evidence standard of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. See id.
B. General Negligence vs. Premises Liability Theories of Recovery
Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997) (stating that “[b]ecause premises defect cases and negligent activity cases are based on independent theories of recovery, a simple negligence [jury] question . . . cannot support a recovery in a premises defect case”); E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57-58 (Tex. App.-Houston [14th Dist.] 2014, pet. dism’d) (“Because [claimant] was limited to a premises liability theory of recovery, . . . the trial court erred when it submitted an ordinary negligence cause of action against [appellant] to the jury. . . . Accordingly, the jury’s finding that [appellant] was negligent is immaterial and cannot support a judgment against [appellant].”). As our sister court has explained, premises liability is a “special form of negligence in which the duty owed to the plaintiff depends upon the plaintiff’s status on the premises at the time of the incident.” Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163-64 (Tex. App.-Dallas 2011, no pet.) (citing Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010)).[2]
While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. See Mangham v. YMCA of Austin, Texas-Hays Comtys., 408 S.W.3d 923, 929 (Tex. App.-Austin 2013, no pet.); see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016).
Because the lines between negligent activity and premises liability are “sometimes unclear,” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010), determining whether a claim is one for a premises defect or general negligence “can be tricky.” Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015). The policy undergirding this distinction is that negligence encompasses a malfeasance theory based on affirmative, contemporaneous conduct that caused the injury, whereas premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe. See Del Lago Partners, 307 S.W.3d at 776; Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (explaining negligent activity concerns “simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done” while premises liability concerns the “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about” and quoting Keetch v. Kroger Co., 845 S.W.2d 262, 266-67 (Tex. 1992)).
C. Discussion
In his first issue, Norman argues that the trial court erred by granting summary judgment on a premises liability theory when his claims sounded in general negligence: “The Association characterized [my] lawsuit against it as one for premises liability. This argument is flawed because the Association was not the possessor of the premises when [I] was injured[.]” Norman argues that his “petition is fairly constructed as advancing an ordinary negligence claim” because he pleaded that the Association is liable for “failing to employ any procedure to ensure safety from falling trees, and for failing to maintain a safe bike path and the trees along it.” The Association responds that regardless of how Norman pleaded his claim, he is limited to a premises liability theory of recovery because Norman was injured by an unsafe or dangerous condition on the premises-not by contemporaneous negligent activity.[3]
1. Summary Judgment was Not Granted on an Unaddressed Claim Because the Association’s Motion for Summary Judgment Challenged the Existence of a Legal Duty
As a preliminary matter, we consider Norman’s contention that the trial court improperly granted summary judgment on his negligence claim when the Association’s motion for summary judgment actually addressed only an unpleaded premises-liability claim. See Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (stating it is reversible error to grant summary judgment on a claim not addressed in the motion). Three of our sister courts have addressed similar instances in which defendants filed summary judgment motions on the theory that the plaintiff had impermissibly pleaded a premises defect claim as a general negligence claim. See Griffin v. Shell Oil Co., 401 S.W.3d 150 (Tex. App.-Houston [1st Dist.] 2011, pet. denied); Somoza v. Rough Hollow Yacht Club, Ltd., No. 03-09-00308-CV, 2010 WL 2867372, at *4 (Tex. App.-Austin July 20, 2010, no pet.) (mem. op.); Kalinchuk v. JP Sanchez Construction Co., No. 04-15-00537-CV, 2016 WL 4376628, at *3 (Tex. App.- San Antonio Aug. 17, 2016, no pet.) (mem. op.).
In Griffin, the First District Court of Appeals considered whether “the trial court erred in granting summary judgment in favor of Shell and CH2M on his negligent-activity claims because neither Shell nor CH2M sought summary judgment on these claims.” 401 S.W.3d at 157. After stating that a trial court errs by granting more relief requested by disposing of issues not presented to it in the summary judgment motion, the First court analyzed each defendant’s summary-judgment motion and held that based “upon the plain language,” the defendants sought summary judgment “only on [appellant’s] premises-defect claim” and not his negligent activity claim. Id. at 158-59. Thus, the First court reversed summary judgment on appellant’s negligence claim and remanded the case. Id. The First court did note, however, that “[a] legal duty must be established in order for [appellant] to ultimately recover on his negligent-activity claim[, ]” id. at 163 n.4, thus signaling its concern over the viability of appellant’s negligence claim.
In Somoza, the plaintiff had been injured while operating a jet ski when he allegedly ran into a partially submerged steel cable tethered to a floating dock, near the marina owned and operated by a yacht club. Somoza, 2010 WL 2867372, at *1. He filed suit against the yacht club and alleged negligence and premises liability claims. Id. The yacht club filed a hybrid no evidence and traditional motion for summary judgment, asserting, in part, that the plaintiff “has no claim for general negligence . . . because his negligence claim sounds solely in premises liability,” and that the plaintiff has “produced no evidence of the essential elements of duty, breach, or proximate cause.” Id. The trial court granted the motion.
On appeal, the Third District Court of Appeals considered the plaintiff’s contention that the trial court improperly granted summary judgment on his general negligence claim. Id. at *4. The Third court “assum[ed] without deciding that [the plaintiff] could bring a claim for general negligence despite his failure to allege injury resulting from any contemporaneous activity by the Yacht Club” and nevertheless concluded that “he has still failed to establish the existence of a duty to support a claim in negligence.” Id. at *5.
In Kalinchuk, the plaintiff filed a lawsuit against his putative employer for negligence and gross negligence after he was injured at a baseball field renovation site by a section of bleachers that fell on him. 2016 WL 4376628, at *1. The employer moved for traditional and no evidence summary judgment, and alleged, inter alia, that the plaintiff did not have more than a scintilla of evidence to establish the existence of a legal duty. Id. In its motion, the employer relied on cases involving premises liability claims and asserted that the plaintiff purported to state a claim for negligence when his claim was “actually based on the theory of premises liability because he [sought] to recover for an injury allegedly created by a condition on the premises rather than for an injury created as a result of an activity.” Id. at *3. The plaintiff responded that the employer owed him a common law duty to exercise reasonable care and avoid a foreseeable risk of harm. Id. The trial court granted summary judgment. Id.
On appeal, the Fourth District Court of Appeals reasoned that “[w]hether [plaintiff’s] claim is a claim for negligence as he argues or a premises liability claim as [employer] contends, the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test.” Id. After applying the risk-utility balancing test to the facts of the case, the Fourth court concluded that the plaintiff had “failed to produce a scintilla of evidence creating a fact issue to support the existence of [a] legal duty owed to him by [the employer.]” Id. at *3-4.
We do not quarrel with the First court’s strict approach in refusing to read into the summary judgment motion a ground that was not clearly articulated. However, we view the approach by the Third and Fourth courts as allowing for a more expedient disposition while maintaining fidelity to Rule 166a(c)’s requirement that summary judgment motions “state the specific grounds therefor.” Tex.R.Civ.P. 166a(c); Somoza, 2010 WL 2867372, at *5; Kalinchuk, 2016 WL 4376628, at *3-4.
The existence of a legal duty is a threshold issue generally decided as a matter of law. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). And even assuming under these facts that Norman could bring a claim for general negligence, the Association in its motion for summary judgment challenged the existence of a legal duty owed to him regarding the downed tree and maintenance of trail safety regardless of whether the duty arose under a premises liability theory based on Norman’s status at the time of the injury or a general negligence theory balancing test.[4] See Kalinchuk, 2016 WL 4376628, at *3-4 (explaining whether the plaintiff’s claim is a claim for negligence as he argued or a premises liability claim as the defendant contended, “the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test”); cf. Del Lago Partners, 307 S.W.3d at 767 (applying risk-utility balancing factors to determine duty in premises liability case); Wyckoff, 357 S.W.3d at 164 (“General negligence principles apply to a contractor who has left [a] premises in an unsafe condition.”). Therefore, because the summary judgment motion fairly challenged the existence of a legal duty, we reject Norman’s contention that the trial court erred by granting the motion on an unchallenged ground, and we now analyze whether the Association owed Norman a legal duty under a general negligence theory.
2. No Legal Duty Under a General Negligence Theory
The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002). “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.” Id. at 34. Of these factors, the Supreme Court of Texas has identified “foreseeability as the ‘foremost and dominant consideration’ in the duty analysis.” Id. at 36 (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.” Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.-San Antonio 2009, no pet.). However, foreseeability alone is not sufficient to impose a duty. Id.
Here, Norman pleaded that the Association contractually assumed “responsibility for maintenance, construction and safety of the trails,” and as such, owed a duty to “protect the general public from dangerous conditions[.]” The record, which contains the Contract and deposition excerpts, evidences the Association’s agreement to, and exercise of, some limited control over the construction and maintenance of Gateway’s bike trails by having monthly meetings to discuss maintenance issues and by building trails in the months between May and October. The summary judgment evidence also provided that the Association holds an annual work day in June to make sure the trails are in “tiptop shape” for their annual “fat tire festival.” This workday consists of going through the entire trail to look for places that needed to be trimmed or pruned.
Lawrence “Larry” Colvin, the Association’s president at the time of Norman’s crash, testified that during the monthly meetings, the Association’s members discussed safety of the trees in general as well as identified certain problem trees to City employees who “were the only ones that [could] operate the chainsaws.” Larry also testified that the Association had once asked the City to close the trail because of “so many trees down,” but that the City refused. Larry testified that the Association worked with Melinda Adams, an “urban forester” with the City, who “[took] a look at the trees.” Although Larry acknowledged that the Association had no “tree safety plan” and had never consulted an arborist, he concluded that even retaining a certified arborist to walk Gateway once a week would still not prevent falling trees in a park “hundreds of thousands of trees.”
Larry’s testimony concerning the existence of “hundreds of thousands of trees” along the mountain bike trail provided proof that the danger of a falling tree was plausible. And in his deposition, Larry acknowledged that the likelihood of falling trees would increase in “an unprecedented drought like we were in in 2014”-the year of Norman’s injury.
However, Norman testified in his deposition that he had ridden the same trail “no more [than] two days” earlier and that he had not seen the downed tree, so it was possible that the tree had fallen only a day or two before his crash. Indeed, Norman conceded that it was possible that the tree could have actually fallen only a few hours before his crash. Moreover, the Contract expressly prohibits the Association from pruning trees without the Director’s prior written approval and expressly prohibits the Association from removing any tree without prior written permission from the Forester. Norman does not direct us to any part of the Contract showing that the Association had agreed to assume a legal duty to maintain the safety of the trails for the general public.
Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.[5] See Felts v. Bluebonnet Elec. Coop., Inc., 972 S.W.2d 166, 169 (Tex. App.-Austin 1998, no pet.) (rejecting complainant’s argument that an electrical co-op’s tree-trimming agreement creating a limited right to trim or clear trees for the purpose of protecting its power lines “created a broader duty to maintain the area for the protection of the general public traveling on the nearby county road”); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 292 (Tex. App.-Waco 1997, writ denied) (holding that “a defendant’s policy to remedy dangerous conditions he may come across does not impose a legal duty on him to these third parties” and that a defendant bears “no common law duty to remove debris . . . that was left by some other party”); see also J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 530-32 (Tex. App.-Austin 2009, no pet.) (holding a contractual agreement did not create a legal duty to a third party when the contractual benefit to the third party was not clearly intended by the contract and was merely incidental to the agreement).
Therefore, the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims. See Gonzalez v. VATR Constr., LLC, 418 S.W.3d 777, 789 (Tex. App.-Dallas 2013, no pet.) (holding that because summary judgment was proper on negligence claim, it was also proper on gross negligence claim). We overrule Norman’s first issue.
IV. Norman’s Excluded Summary Judgment Evidence
Norman’s second issue challenges the trial court’s decision to sustain the Association’s hearsay objection and strike Matthew Clemons’s report. Norman’s contention is that because he submitted an affidavit from Clemons in which Clemons swore that the attached report was a true and correct copy of the report that he had personally prepared, the report was authenticated, “which overcomes the hearsay problem.” The Association responds that Norman misunderstands its objection, which was that the report was inadmissible hearsay, not that it was not properly authenticated.
A. Standard of Review
A trial court’s rulings on the admissibility of evidence are reviewable under an abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court’s discretion in determining whether an expert is qualified to testify on a matter is broad but not unbounded. In re Commitment of Bohannan, 388 S.W.3d 296, 307 (Tex. 2012). A trial court abuses its discretion by excluding expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation. Id.; State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (op. on reh’g).
B. Analysis
Norman attached a short affidavit from Matthew Clemons which stated, in relevant part, as follows:
I certify that the ‘Initial Assessment of Tree Conditions; Gateway Park Mountain Bike Trail’ was prepared on March 21, 2017 for Jackson Davis regarding Norman DeLamar’s bicycle incident, which is attached as an Exhibit to Plaintiff’s Response to Fort Worth Biker’s Association Traditional and No Evidence Motions for Summary Judgment, is a true and correct copy of the report which I personally prepared and provided Mr. Davis.
The March 21, 2017 letter was attached to Norman’s summary judgment response as Exhibit D.
The Association asserts that Clemons’s affidavit (which was not objected to), may authenticate the attached report, but it does not remove the report from the ambit of hearsay. We agree. See Tex. R. Evid. 801, 802; cf. Petty v. Children’s WorldLearning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *5 (Tex. App.-Dallas May 31, 1995, writ denied) (explaining that “[a]uthenticity is separate and apart from qualification as an exception under the hearsay rule”). Further, the report does not obviously fall within any of the exclusions from hearsay (Tex. R. Evid. 801(e)) or exceptions to the rule against hearsay (Tex. R. Evid. 803)-indeed, Norman does not assert any exclusion or exception.
Accordingly, we hold that the court did not abuse its discretion by sustaining the Association’s hearsay objection to Clemons’s report, and we overrule Norman’s second issue.
V. Conclusion
Having held that the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims and that the trial court did not abuse its discretion by excluding Norman’s expert’s report as inadmissible hearsay, we affirm the trial court’s judgment.
—–
Notes:
[1]Norman’s suit against the Association for negligence and gross negligence was eventually severed from his suit against the City.
[2]To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Helbing v. Hunt, 402 S.W.3d 699, 702 (Tex. App.-Houston [1st Dist.] 2012, pet. denied).
[3]The Association asserts it is a “non-possessory interest holder” which is “the legal equivalent of the occupier” of the bike trail portion of Gateway. Put differently, the Association contends it has rights akin to that of an easement holder. See Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 309 (Tex. App.- Houston [1st Dist.] 2010, pet. denied) (“[A]n easement is a nonpossessory interest in another’s property that authorizes its holder to use that property for a particular purpose.”).
[4]Although we do not reach the issue, we believe that Norman’s claim sounds in premises liability in any event. See United Scaffolding, 537 S.W.3d at 472 (“We have recognized that slip/trip-and-fall cases have consistently been treated as premises defect causes of action. In such cases, the plaintiff alleges injury as a result of a physical condition or defect left on the premises, not as a contemporaneous result of someone’s negligence.” (internal citation and quotation marks omitted)); Sampson, 500 S.W.3d at 389-90 (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113 (Tex. 2010) (per curiam), a case with injuries caused by a bicycle crash after the cyclist ran over a metal chain stretched across a college campus driveway as illustrating a “quintessential premises defect claim”); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004) (concluding that the “allegation of an injury caused by a tree limb falling on [plaintiff] constitutes an allegation of a condition or use of real property and is an allegation of a premises defect”).
[5]Norman also does not persuade us that we should create a legal duty regarding the downed tree and trail safety based on public policy considerations. See Kalinchuk, 2016 WL 4376628, at *4. Indeed, public policy considerations weigh heavily against imposing such a legal duty on what is essentially a group of volunteer mountain bike enthusiasts who have been granted such limited oversight over the safety of the bike trails, if any.
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Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: April 30, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.
Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.
This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.
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.
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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
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Lynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495
Posted: April 25, 2019 Filed under: Cycling, Delaware, Legal Case, Minors, Youth, Children, Mountain Biking, Release (pre-injury contract not to sue) | Tags: clear and unequivocal, Cycling, Delaware, Dirt Bike, Minor, Motion for Judgment on the Pleadings, Motorcross, Motorcross Track, Negligence, Public Policy, Reckless Conduct, recklessness, Release, Unambigous, Unconscionable, Unequivocal, Waiver Leave a commentLynam v. Blue Diamond LLC, 2016 Del. Super. LEXIS 495
Thomas A Lynam, III and Antoinette M. Lynam, as Parents and Natural Guardians of Thomas A. Lynam, IV, a minor,
v.
Blue Diamond LLC and Parkway Gravel Inc. and Houghton’s Amusement Park, LLC
C.A. No. N14C-11-121 RRC
Superior Court of Delaware, New Castle
October 4, 2016
Submitted: July 6, 2016
On Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s Motion for Judgment on the Pleadings.
Tabatha L. Castro, Esquire The Castro Firm, Inc. Attorney for Plaintiffs
Leonard G. Villari, Esquire Villari, Lentz & Lynam, LLC Attorney Pro Hac Vice for Plaintiffs
Marc S. Casarino, Esquire Dana Spring Monzo, Esquire Nicholas Wynn, Esquire White and Williams, LLP Attorneys for Defendants Blue Diamond LLC and Parkway Gravel, Inc.
Dear Counsel:
I. INTRODUCTION
Pending before this Court is Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s (“Defendants”)[1] Motion for Judgment on the Pleadings. In their complaint, Plaintiffs allege that minor Thomas Lynam, IV (“Tommy”) was riding his motocross bicycle on Defendants’ motocross track. After riding off a jump, Tommy landed, lost control of his motocross bicycle, and collided with a metal shipping container near the track. Tommy apparently sustained serious injuries. Plaintiffs’ complaint raises one count of “negligence” as a theory for liability.[2]Although not listed as a separate count in their complaint, Plaintiffs allude in their general “negligence” claim to a theory of reckless conduct by Defendants in connection with the operation of the motocross track.
In their motion, Defendants assert that their alleged behavior was, as a matter of fact and law, neither negligent nor reckless. Alternatively, Defendants raise an affirmative defense that they are released from any liability for negligent or reckless conduct due to a release agreement (the “Release”) signed by the Plaintiffs. Additionally, Defendants raise the doctrine of assumption of the risk as a separate affirmative defense as a bar to recovery.
Plaintiffs agree that they released Defendants from liability for Defendants’ own “negligence.” However, Plaintiffs contend that Defendants’ conduct amounted to recklessness, and that Plaintiffs never released Defendants from liability for their allegedly reckless conduct. In response to Defendants’ claim that Plaintiffs assumed the risk of injury, Plaintiffs contend that the risk of a collision with a metal shipping container was not contemplated at either the signing of the Release or when Tommy began using the facilities.
This Court concludes that the Release was not specifically tailored so as to release Defendants from liability for their allegedly reckless conduct. The Court also finds that the factual record is insufficiently developed to make a legal determination of whether Defendants’ conduct as a matter of law amounted to recklessness. Finally, the Court concludes that it is premature at this juncture to consider Defendant’s affirmative defense. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings.
II.FACTUAL AND PROCEDURAL HISTORY
On January 6, 2013, Tommy, then thirteen years old, was riding a motocross bicycle at Blue Diamond Motocross near New Castle. Plaintiffs allege that the track was advertised as being composed of “safe jumps.”[3] While riding, Tommy rode off a jump, made a hard landing, and was unable to stop in time before colliding with a large metal shipping container.
Prior to granting Tommy admission to the Blue Diamond facilities to ride his motocross bicycle, Blue Diamond required Tommy’s father to sign a release agreement. The Release, entitled “Parental Consent, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, ” stated that Plaintiffs understood the “risks and dangers of serious bodily injury” posed by motocross and relieved Defendants from liability for their own negligence.[4] The Release also released Defendants from liability for injuries suffered by Plaintiffs through their own negligence.[5]
In their complaint, Plaintiffs allege that Defendants negligently allowed the container to remain on the premises at an unsafe distance from the motocross track.[6] While Plaintiffs do not specifically allege recklessness as a separate claim for recovery, but rather include it in a single count of “Negligence, ” Plaintiffs’ complaint references reckless conduct as another potential theory of recovery.[7]Plaintiffs, however, now agree that their claims of negligence are barred by the Release.[8] But Plaintiffs assert that the Release did not specifically address or contemplate potential claims against Defendants for “reckless” behavior.[9]
III. ANALYSIS
A. Standard of Review
Under Superior Court Civil Rule 12(c), a party may move for judgment on the pleadings after the pleadings are closed.[10] The standard of review in the context of a motion for judgment on the pleadings requires a court to “accept all the complaint’s well-pleaded facts as true and construe all reasonable inferences in favor of the non-moving party.”[11] “The motion will be granted when no material issues of fact exist, and the moving party is entitled to judgment as a matter of law.”[12] “The standard for a motion for judgment on the pleadings is almost identical to the standard for a motion to dismiss.”[13]
B. The Parties Agree that the Release Bars Plaintiffs’ Recovery Against Defendants for Any Negligence
Defendants contend that the executed Release bars recovery for negligence. At oral argument on this motion, Plaintiffs agreed (Plaintiffs’ filings were not explicit on this point) that the Release bars recovery for injuries resulting from Defendants’ allegedly negligent conduct.[14] Although Plaintiffs are residents of Pennsylvania, the parties agree that Delaware law applies to the present motion, as Defendants are Delaware businesses and the incident giving rise to the case at bar occurred in Delaware.
Under Delaware law, parties may enter into an agreement that relieves a business owner of liability for injuries to business invitees that result from the owner’s negligent conduct.[15] However, the release must be unambiguous, not unconscionable, and not against public policy. [16] Further, the release must be “‘crystal clear and unequivocal’ to insulate a party from liability for possible future negligence.”[17]
In Ketler v. PFPA, LLC, the Delaware Supreme Court recently determined the validity of a release waiving liability for negligence.[18] The release in Ketler provided:
‘I understand and voluntarily accept this risk and agree that [the defendant] . . . will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendant] or anyone on [the defendant’s] behalf whether related to exercise or not. Accordingly, I do hereby forever release and discharge [the defendant] from any and all claims, demands, injuries, damages, actions, or causes of action.'[19]
The Delaware Supreme Court held that the release was sufficiently clear and unequivocal, and that it expressly released the defendant from any and all causes of actions relating to the defendant’s own negligence.[20] Defendants rely heavily on this case, asserting that it applies to claims of reckless conduct.[21]
The Release that Plaintiffs executed in this case is also sufficiently “clear and unequivocal.” The Release provides:
3. I consent to the Minor’s participation in the Event(s) and/or entry into restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.
4. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s) . . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.[22]
Similar to the language at issue in Ketler, the Release expressly states that the signor assumes responsibility for injuries caused by Defendants’ own negligent conduct. The release also expressly states that the Defendants are released from any and all causes of action that may arise from Defendants’ negligent conduct. Accordingly, this Court agrees with the parties that the Release validly exculpates Defendants from liability for their own negligence.
Defendants also rely on Lafate v. New Castle County[23] and Devecchio v. Delaware Enduro Riders, Inc.[24] to support their position that the Release waives claims of reckless conduct. Both Lafate and Devecchio concern agreements that released the tortfeasors from liability for their own negligent conduct. Both cases also discussed whether the language of the releases was sufficiently tailored to release the tortfeasor’s negligent conduct. In Lafate, this Court refused to grant the defendant’s motion for summary judgment on grounds that the release did not clearly and unambiguously release the tortfeasor from claims that it was negligent.[25] In Devecchio, this Court granted the defendant’s motion for summary judgment because the plaintiff signed a valid covenant not to sue for injury resulting from the plaintiffs own negligence.[26]
Defendants’ reliance on these cases in light of Plaintiffs’ potential claim of reckless conduct is inapposite. Because the parties have agreed that Defendants are insulated from claims of negligence, the question of whether the release clearly and unambiguously insulates the defendants from liability for their own negligent conduct is moot. Neither the holding in Lafate nor in Devecchio relate to allegations of reckless conduct. Accordingly, because Plaintiffs now assert that Defendant’s conduct was reckless, Lafate and Devecchio are distinguishable from the case at bar.
Finally, the Court considers whether, for purposes of this motion, recklessness is subsumed in negligence, and is therefore barred as a form of negligence. Prosser and Keeton on Torts is particularly informative, providing that “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[27] Adopting Prosser and Keeton’s interpretation, this Court finds that although the Release does insulate Defendants from liability for negligent conduct, it does not bar claims of “more extreme forms of negligence, ” such as “reckless” conduct.[28]
C. A Motion for Judgment on the Pleadings is Inappropriate at this Juncture in Light of any Undeveloped Claims of Reckless Conduct
Although Tommy’s father’s execution of the Release precludes recovery from Defendants on a theory of “negligence, ” Plaintiffs assert that the Defendants’ conduct was “reckless.” Plaintiffs did not explicitly allege in a separate count of the complaint that Defendant’s conduct was reckless, but Plaintiffs did make it apparent in the complaint that it was an intended theory of liability.[29] In their briefing and at oral argument, Plaintiffs suggested that Defendants, among other things, had been aware of previous collisions with the shipping container, and that their ignorance of these prior incidents amounts to reckless behavior.[30]Accordingly, the Court must determine whether the Release bars Plaintiffs from asserting claims resulting from injuries caused by Defendants’ reckless conduct.
Courts in Delaware have a strong preference for resolving cases on their merits, or at least allowing discovery to proceed such that additional evidence in support of the parties’ contentions can be developed.[31] While this preference is not outcome-determinative, the preference for resolving cases on the merits is a strong factor in determining whether to grant or deny a dispositive motion.
Plaintiffs, at oral argument and in their response to the motion, argue that they are entitled to recovery based on Defendants’ allegedly reckless conduct. The parties agree that this theory is separate from the one count of “negligence” listed in the complaint.[32] The operative language of the Release does not explicitly enumerate or contemplate recklessness as a theory of recovery barred by the Release. Under Delaware law, as provided in Ketler, a release must be “clear and unambiguous” in order to effectively release the business owner from liability.[33]
This Court finds that the language of the release is not “clear and unambiguous” with respect to Defendants’ liability for their own allegedly reckless conduct. In Ketler, the release at issue specifically used the word “negligence, ” and stated that Defendants “will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendants].” The Delaware Supreme Court held that this language satisfied the “clear and unequivocal” standard and upheld the language of the agreement.
Turning to the Release that Plaintiffs executed, this Court finds that the Release is silent as to claims of recklessness. The Release does not mention “reckless” conduct, and instead only expressly refers to injury caused by Defendants’ “negligence.” In the absence of such language, the Release does not clearly and unambiguously exculpate Defendants from liability for their own reckless conduct. Accordingly, the Release does not operate to bar Plaintiffs’ claim of recklessness.[34]
This Court holds that the Release does not bar claims of reckless conduct. This Court expresses no opinion at this juncture as to whether Plaintiffs ultimately can establish claims against for recklessness. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings, and will grant Plaintiffs leave to conduct further discovery with the option of potentially amending the complaint in support of their contention that Defendants’ conduct was “reckless.”[35]
D. The Court does Not Reach Defendant’s Argument under the Doctrine of Assumption of the Risk
Finally, Defendants’ contend that Plaintiffs assumed the risk of injury from Defendants’ alleged reckless conduct. However, the record has not been sufficiently developed to determine whether Defendants’ conduct was reckless or whether Plaintiffs assumed the risk of injury from Defendants’ allegedly reckless conduct.[36] Accordingly, the Court does not reach this contention at this stage of the litigation.
IV. CONCLUSION
Defendant’s Motion for Judgment on the Pleadings is DENIED. The Court has enclosed an Order establishing a Scheduling Conference in this case.
Very truly yours,
Richard R. Cooch Resident Judge
Notes:
[1] Defendant Houghton’s Amusement Park, LLC did not make an appearance in this case and had a default judgment taken against it on June 21, 2016.
[2]Compl. ¶¶ 79-87.
[3]Compl. ¶ 48.
[4]Defs.’ Mot. for J. on the Pleadings, Ex. A.
[5]Defs.’ Mot. for J. on the Pleadings, Ex. A. Tommy also signed an agreement, titled “Minor’s Assumption of the Risk Acknowledgment, ” that Defendants reference in their motion as another reason they are not liable for Plaintiffs’ injuries. However, it appears from the motion and subsequent filings that the release signed by Tommy is only mentioned in passing, and is not relied upon by Defendants. The release signed by Tommy’s father is the determinative release in the case at bar.
[6]Compl. ¶¶ 79-87.
[7]Compl. ¶¶ 49, 51, 77, 87. Specifically, the Complaint alleges that “Defendants’ failure to exercise reasonable care as alleged above comprised outrageous conduct under the circumstances, manifesting a wanton and reckless disregard of the rights of the Plaintiffs.” Compl. ¶ 87. The Complaint also alleges that Tommy’s injuries were caused by the “reckless indifference” of Defendants. Compl. ¶¶ 51, 77. Moreover, the Complaint alleges that the track was “reckless[ly] design[ed].” Compl. ¶ 49.
[8]At oral argument, Plaintiffs’ counsel answered in the affirmative when the Court asked “Am I understanding Plaintiffs’ position correctly when I read the papers to say that Plaintiffs are not alleging ordinary negligence, but rather recklessness?” Lynam et al. v. Blue Diamond LLC Motocross et al, C.A. No. N14C-11-121 RRC, at 6 (Del. Super. July 6, 2016) (TRANSCRIPT) [hereinafter Oral Arg. Tr.].
[9] Defs.’ Mot. for J. on the Pleadings, Ex. A.
[10] A judgment on the pleadings is based only upon a review of Plaintiffs’ complaint and Defendants’ answer. However, under Rule 12(c), “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment.” Super. Ct. Civ. R. 12(c). In the case at bar, Defendants introduced the two executed releases as exhibits to their motion. However, the releases were not a part of the pleadings. Nevertheless, the parties agree that this motion should be treated as a motion for judgment on the pleadings.
[11] Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Jan. 17, 2014) (quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012)).
[12] Id. (quoting Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb. 4, 2009).
[13] Id. (internal quotation marks omitted).
[14] See Oral Arg. Tr. at 6.
[15] Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016) (upholding “hold harmless” agreements and releases that relieve a proprietor from liability for its own negligent activities).
[16] Id. at 747-48.
[17] Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012) (internal quotation marks omitted) (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).
[18] Ketler, 132 A.3d at 747.
[19] Id.
[20] Id.
[21] Oral Arg. Tr. at 14-16.
[22] Defs.’ Mot. for J. on the Pleadings, Ex. A (emphasis added).
[23] 1999 WL 1241074 (Del. Super. Oct. 22, 1999).
[24] 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).
[25] The plaintiff in Lafate was injured by a metal bar used to divide a basketball court. This Court found that while the agreement did “speak[] of ‘any and all injuries which may be suffered by [players] during [their] participation, ‘” the absence of the word “negligence” insufficiently insulated the defendants from liability for their own negligent conduct. Lafate, 1999 WL 1241074, at *4.
[26] In Devecchio, the defendant owned a motorcycle race track that required riders to sign agreements releasing the defendant from liability for injuries resulting from both the riders and the defendant’s negligence. The release pertaining to the defendant’s negligence expressly used the word “negligence.” This Court found that the release using the word “negligence” was sufficiently clear and unambiguous, and therefore insulated the defendant from liability for its own negligent conduct. Devecchio v. Enduro Riders, Inc., 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).
[27] W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)). Delaware courts often rely on Prosser and Keeton on Torts in reaching their conclusions. See, e.g., Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); Lafate v. New Castle County, 1999 WL 1241074 (Del. Super. Oct. 22, 1999); Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).
[28] Additionally, the Delaware Civil Pattern Jury Instructions for negligence and recklessness are substantially different. The Delaware Civil Pattern Jury Instruction for negligence provides:
This case involves claims of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. That standard is your guide. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person’s conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn’t negligent.
Del. Super. P.J.I. Civ. § 5.1 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. On the other hand, the Delaware Civil Pattern Jury Instruction for reckless conduct states:
Reckless conduct reflects a knowing disregard of a substantial and unjustifiable risk. It amounts to an “I don’t care” attitude. Recklessness occurs when a person, with no intent to cause harm, performs an act so unreasonable and so dangerous that he or she knows, or should know, that harm will probably result.
Del. Super. P.J.I. Civ. § 5.9 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. It is apparent from a comparison of the two different jury instructions that negligence conduct requires a departure from the ordinary standard of care exhibited by the reasonably prudent person, an objective standard. However, in contrast, it appears from the pattern jury instructions that reckless conduct requires a subjective “I don’t care” attitude that evidences an even greater departure from the ordinary standard of care, amounting to an unreasonable conscious disregard of a known risk.
[29] Compl. ¶¶ 49, 51, 77, 87. For example, Plaintiffs allege that “The reckless design of the track, which was intentionally constructed next to the pre-existing intermodal container, requires riders to land from a jump and immediately decelerate in order to execute a 90° right turn.” Compl. ¶ 49. Moreover, Plaintiffs allege that Tommy’s injuries were “a direct and proximate result of the negligence, carelessness and reckless indifference of Defendants.” Compl. ¶ 77.
[30] Pl.’s Suppl. Resp. in Opp’n to the Mot. for J. on the Pleadings, at 2.
[31] Keener v. Isken, 58 A.3d 407, 409 (Del. 2013); see also Wallace v. Wood, 2007 WL 3331530 (Del. Ch. Oct. 31, 2007); DeSantis v. Chilkotowsky, 2004 WL 2914314, at *2 (Del. Super. Nov. 18, 2004), Sup. Ct. Civ. R. 56.
[32] Plaintiffs did not plead any explicit claim of recklessness. See, e.g., J.L. v. Barnes, 33 A.3d 902, 916 n.77 (De. 2011) (treating recklessness and gross negligence as interchangeable and noting, “In order for a plaintiff to plead gross negligence with the requisite particularity, the plaintiff must articulate ‘facts that suggest a wide disparity between the process [] used . . . and that which would have been rational.'” J.L. states that a complaint pleading ten pages of facts to support a claim of gross negligence or recklessness was sufficient to meet the pleading standard). Defendants argue that Plaintiffs have not properly pleaded reckless conduct under Superior Court Civil Rule 9(b). However, the Court need not reach that issue since it will give Plaintiffs the opportunity to amend their complaint.
[33] Ketler, 132 A.3d at 747.
[34] Because the Court finds that Defendants’ release does not explicitly bar claims of “reckless” conduct, this Court does not reach the question of whether such a release is potentially permissible under Delaware law. However, this Court notes that other jurisdictions have differing perspectives on whether exculpatory agreements barring claims for recklessness, gross negligence, willful acts, or strict liability are enforceable. See Randy J. Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). For example, in Barker v. Colo. Region-Sports Car Club of Am., the Colorado Court of Appeals held that exculpatory agreements can release a party only for simple negligence, and not from willful and wanton negligence. 532 P.2d 372, 377 (Colo.App. 1974). Similarly, in Wheelock v. Sport Kites, Inc., the United States District Court for the District of Hawaii held that a release was invalid with respect to claims of gross negligence and strict liability. 839 F.Supp. 730, 736 (D. Haw. 1993). The above annotation suggests that a common reason to not enforce such an agreement is because they are void against the state’s public policy.
Alternatively, other jurisdictions have upheld agreements that exculpate business owners for reckless conduct or strict liability. For example, in Murphy v. N. Am. River Runners, Inc., the West Virginia Supreme Court discussed the matter, stating:
Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is contrary to public policy. When such an express agreement is freely and fairly made, between two parties who are in equal bargaining position, and there is no public interest with which the agreement interferes, it will generally be upheld.
412 S.E.2d 504, 508-09 (W.Va. 1991).
[35]Delaware Courts have previously allowed such an amendment to be made. As this Court held in Guy v. Phillips, a party may amend a complaint following additional discovery when the amended count arises out of the same factual basis for the original complaint. 1997 WL 524124 (Del. Super. July 2, 1997).
[36] In support of this defense, the Court notes that Defendants rely solely on Deuley v. DynCorp Int’l, Inc., 2010 WL 704895 (Del. Super. Feb. 26, 2010). However, Deuley is distinguishable from the case at bar. In Deuley, surviving relatives of decedents killed by an improvised explosive device (“IED”) in Afghanistan filed a wrongful death action. As part of the employment agreement, the decedents signed an agreement that provided employees expressly assumed the risk of injury or death. In reaching its conclusion that the decedents assumed the risk of death, the Court found that “when [the decedents] signed the releases, even a poorly informed American had to have appreciated that working in Afghanistan involved the general risk of insurgent or terrorist attacking by an IED.” Deuley, 2010 WL 704895, at *4. “The complaint offers no reason to find that any plaintiff here was probably unaware of the general risk of being injured or killed by a bomb.” Id. In the case at bar, drawing inferences in the light most favorable to the Plaintiffs, it is unlikely that Plaintiffs were aware of the risk posed by the shipping container, since they allege that they were unable to inspect the track prior to Tommy using it. Accordingly, Defendants’ reliance on Deuley is inapposite since it could be determined that a collision with the metal shipping container was not contemplated by the Plaintiffs when they signed the Release.
New Book Aids Both CEOs and Students
Posted: April 25, 2019 Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line Leave a comment“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.
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The Reference book is sold via the Summit Magic Publishing, LLC.
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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.
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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
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Posted: April 11, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line Leave a commentEveryone has told you, you need a risk management plan. A plan to follow if you have
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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
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Posted: April 2, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line Leave a commentThis 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
Posted: March 28, 2019 Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line Leave a comment“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.
CABDA Midwest Show is becoming a big Event. Are you going?
Posted: September 27, 2018 Filed under: Cycling, Mountain Biking | Tags: Bicycle Tradeshow, CABDA, Chicago Area Bicycle Dealers Association, Cycling Leave a comment
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New Book Aids Both CEOs and Students
Posted: June 6, 2018 Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: and Law, Desk Reference, Insurance, Law, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Reference Book, Reward, Risk, Risk Management, ski area, Textbook, Whitewater Rafting Leave a comment“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.
Need a Handy Reference Guide to Understand your Insurance Policy?
Posted: May 28, 2018 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, and Law, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Risk Management Leave a commentThis 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.