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.”
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
$99.00 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
Releases
Waivers
Covenants Not to sue
Who should be covered
What should be included
Negligence Clause
Jurisdiction & Venue Clause
Assumption of Risk
Other Clauses
Indemnification
Hold Harmless Agreement
Liquidated Damages
Previous Experience
Misc
Photography release
Video Disclaimer
Drug and/or Alcohol clause
Medical Transportation & Release
HIPAA
Problem Areas
What the Courts do not want to see
Statute of Limitations
Minors
Adults
Defenses Myths
Agreements to Participate
Parental Consent Agreements
Informed Consent Agreements
Certification
Accreditation
Standards, Guidelines & Protocols
License
Specific Occupational Risks
Personal Liability of Instructors, Teachers & Educators
College & University Issues
Animal Operations, Packers
Equine Activities
Canoe Livery Operations
Tube rentals
Downhill Skiing
Ski Rental Programs
Indoor Climbing Walls
Instructional Programs
Mountaineering
Retail Rental Programs
Rock Climbing
Tubing Hills
Whitewater Rafting
Risk Management Plan
Introduction for Risk Management Plans
What Is A Risk Management Plan?
What should be in a Risk Management Plan
Risk Management Plan Template
Ideas on Developing a Risk Management Plan
Preparing your Business for Unknown Disasters
Building Fire & Evacuation
Dealing with an Emergency
Insurance
Theory of Insurance
Insurance Companies
Deductibles
Self-Insured Retention
Personal v. Commercial Policies
Types of Policies
Automobile
Comprehension
Collision
Bodily Injury
Property Damage
Uninsured Motorist
Personal Injury Protection
Non-Owned Automobile
Hired Car
Fire Policy
Coverage
Liability
Named Peril v. All Risk
Commercial Policies
Underwriting
Exclusions
Special Endorsements
Rescue Reimbursement
Policy Procedures
Coverage’s
Agents
Brokers
General Agents
Captive Agents
Types of Policies
Claims Made
Occurrence
Claims
Federal and State Government Insurance Requirements
Bibliography
Index
The 427-page volume is sold via Summit Magic Publishing, LLC.
What is a Risk Management Plan and What do You Need in Yours?
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
$99.00 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.
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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.
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
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.
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
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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.
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.
Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.
Posted: April 16, 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
$99.00 plus shipping
What is a Risk Management Plan and What do You Need in Yours?
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
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
Need a Handy Reference Guide to Understand your Insurance Policy?
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.
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
The GoPro Mountain Games are Back and Better Than Ever!
Posted: May 10, 2018 Filed under: Mountain Biking | Tags: GoPro, GoPro Mountain Games, Vail Leave a commentRocky Mountain Bicycles Recall Mountain Bicycles Due to Crash Hazard
Posted: December 29, 2017 Filed under: Mountain Biking | Tags: Altitude, Brake Cable, Brake Cable Housing, Downtube, Instinct, logo, Pipeline, Rocky Mountain, Rocky Mountain Bicycles Leave a commentHazard: The brake cable housing was not secured properly during manufacturing, which can cause brake failure, posing a crash hazard to the rider.
Consumers should stop using the recalled bicycles immediately and contact an authorized Rocky Mountain dealer for free inspection and free repair.
Recall Date: December 27, 2017
Recall Number: 18-069
Name of Product: Mountain bicycles
Remedy: Repair
Consumer Contact: Rocky Mountain at 866-522-2803 from 9 a.m. to 5 p.m. ET Monday through Friday, via email at info@bikes.comor online at http://www.bikes.com and click on Safety/Recall at the bottom of the page.
Pictures available here: https://www.cpsc.gov/Recalls/2018/Rocky-Mountain-Bicycles-Recall-Mountain-Bicycles-Due-to-Crash-Hazard
Units: About 1,300 (in addition, 1,800 were sold in Canada)
Description: This recall involves all model year 2018 Altitude, Instinct and Pipeline mountain bicycles. The carbon fiber and aluminum bicycles were sold in different colors. The model name is printed on a sticker on the top tube of the bicycles. Rocky Mountain is printed on the down tube. The Rocky Mountain logo is also printed on the headbadge on the headtube. The specified platform family is also printed on the rear triangle of the bicycle at the seatstay.
Incidents/Injuries: None reported
Sold At: Rocky Mountain bicycle dealers nationwide from June 2017 through November 2017 for between $2,600 and $7,300.
Manufacturer(s): Rocky Mountain Bicycles, of Canada
Importer(s): Rocky Mountain Bicycles, of Canada
Distributor(s): Rocky Mountain Bicycles, of Canada
Manufactured In: Taiwan and Canada
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recall, CPSC, Consumer Product Safety Council,
VeloSwap is coming Up Fast, November 4, 2017
Posted: October 27, 2017 Filed under: Cycling, Mountain Biking | Tags: biking, Cycling, Mountain biking, Velo Swap, Veloswap Leave a comment
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