Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682
Posted: September 21, 2014 Filed under: Assumption of the Risk, Cycling, Georgia, Legal Case | Tags: assumption of the risk, bicycle, Bicycle South, Bike, Cycling, helmet, Inc., Incorporated, Open and Obvious, Opportunities, Product liability, Skid Lid Manufacturing Company, Trek Bicycle Corporation, Wheel 1 CommentWilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682
Lois Elaine Wilson, Plaintiff-Appellant, v. Bicycle South, Inc., a Georgia Corporation, et al., Defendants-Appellees
No. 89-8522
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682
October 30, 1990
SUBSEQUENT HISTORY: As Amended.
PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Georgia. No.1: 85-cv-2658-CAM; Moye, Jr., Judge.
DISPOSITION: AFFIRMED.
COUNSEL: Robert H. Benfield, Jr., Middleton & Anderson, Atlanta, Georgia, for Appellant.
For Trek Bicycle: Stephen F. Dermer, Smith Gambrell & Russell, Atlanta, Georgia.
For Bicycle South: Jonathan Mark Engram, Swift Currie McGhee & Hiers, Thomas E. McCarter, Atlanta, Georgia.
For Opportunities, Inc.: Tommy T. Holland, Carter & Ansley, Christopher N. Shuman, Atlanta, Georgia.
For Skid Lid: Palmer H. Ansley, Long Weinberg Ansley & Wheeler, David A. Sapp, Atlanta, Georgia.
JUDGES: Clark, Circuit Judge, Morgan and Hill, * Senior Circuit Judges.
* See, Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
OPINION BY: HILL
OPINION
[*1504] HILL, Senior Circuit Judge
I. INTRODUCTION
This appeal concerns a products liability action based upon alleged breach of warranty, strict liability, and negligence resulting in injuries to Lois Elaine Wilson (“Wilson”), appellant. Wilson incurred head injuries during an accident in Georgia while on a cross-country bicycle trip. The jury returned a verdict in favor of Wilson and against one defendant on a bicycle helmet defect claim, and against Wilson and in favor of three defendants on a bicycle wheel defect claim. The district court granted a judgment notwithstanding the verdict on the helmet claim. Plaintiff appeals [*1505] this grant and also alleges several other errors by the district court concerning the bicycle wheel claim.
A. Issues Presented
Appellant raises four distinct categories of issues on appeal. First, appellant claims that the district court erred in granting appellee Skid Lid Manufacturing Company’s (“Skid Lid”) motion for a judgment notwithstanding [**2] the verdict. Second, appellant contends that the district court improperly commented on the evidence. Third, she asserts that the district court committed reversible error by refusing to admit “similar accident” evidence. Finally, appellant maintains that the district court erred in charging the jury on the defense of “legal accident.”
We hold that the trial court did not err in granting the JNOV. Nor do the trial judge’s comments on the evidence provide cause for reversal. Similarly, we find appellant’s third and fourth contentions to be meritless.
B. Factual and Procedural History
On January 6, 1983, appellant purchased a Trek 614 touring bicycle. Trek Bicycle Corporation (“Trek”) manufactured the bicycle, Opportunities, Incorporated (“Opportunities”) assembled the bike’s rear wheel according to Trek’s specifications, and Bicycle South, Inc. (“Bicycle South”) sold the bike to appellant. The latter three parties will be referred to collectively as “the bicycle defendants.” On February 9, 1983, appellant also purchased, from a company not a party to this lawsuit, a bicycle helmet manufactured by Skid Lid. Rather than purchase a helmet covering her entire head, appellant chose [**3] one that only covered the top half of her head, coming down to about the top of her ears.
Wilson purchased the bike and helmet for a cross-country bicycling trip from Florida to California. Eight days into her trip, on April 23, 1983, Wilson sustained head injuries in a fall from the bicycle while she was riding downhill on a two-lane Georgia highway between Plains and Americus, Georgia. Between January 6 and April 23, Wilson had ridden approximately 1200 to 1600 miles on the bicycle.
The cause of appellant’s fall is disputed by the parties. Appellant maintains that the rear wheel collapsed into a saddle-like shape as a result of an improper manufacturing process and a failure to retrue the spokes of the wheel after the rim was assembled. Under this theory, the tension in the wheel, which was not released after the rim was formed and the wheel assembled, caused the spokes to loosen after use and led to the collapse. The bicycle defendants, on the other hand, maintain that the fall did not result from the wheel collapse, but that the wheel collapsed as a result of appellant’s fall from the bike. 1
1 The actual cause of the fall does not affect the issues currently before this Court.
[**4] The point of initial impact between Ms. Wilson’s head and the pavement was behind her left ear and below the edge of the helmet. As a result of the impact, she claims that she sustained three injuries. The first two, a basilar skull fracture and occipital scalp laceration, were not particularly serious and do not comprise the more serious damage. The more serious injury was a “contre-coup” (an injury to the opposite side of the head from the point of initial impact) brain contusion.
Alleging defects in the bicycle wheel and helmet, Ms. Wilson filed a complaint in this products liability action based upon breach of warranty, strict liability, and negligence. During the trial, appellant attempted to introduce evidence of a prior bicycle wheel defect claim brought by another party against Trek, Opportunities, and another bicycle store, alleging that the incidents were substantially similar. The trial court excluded the earlier incident.
At the beginning of his charge, the trial judge explained to the jury:
As a federal judge, I have the right, power, and duty to comment on the facts, to express my opinion with respect thereto . . . but remember, in the last analysis, every factual issue [**5] in this case must be decided by you, by you alone, and anything that anybody else in this room says [*1506] about the facts is a mere opinion, not binding upon you.
Subsequently, referring to witness testimony, the judge again emphasized that “as sole judges of the facts, you, the jury, and you only, must determine which of the witnesses you believe and what portion of their testimony you accept and what weight you attach to it.” Prior to analyzing and giving his opinion of the evidence that Ms. Wilson presented, 2 the judge again cautioned the jury that “you, as jurors, are at liberty to disregard each, every, and all comments of the court in arriving at your own findings of the facts.” At the conclusion of his remarks, the trial judge further emphasized:
Let me stress as strongly as I can that you, the jury, are the sole and only judges of the facts. The past several minutes I have been giving you [**6] my opinion with respect to matters committed solely to your decision, not mine. My comments are and can only be expressions of a personal opinion and are not binding on you in any way, shape, or form. Remember that in considering every issue in this case, including those to which I have just alluded, you must resort to your own recollection of the evidence, not that which I have just stated. . . . You must, in the diligent performance of your duty, rely on your recollection of all the evidence and not merely that which I may have called to your attention and emphasized.
2 The trial judge focused especially on items of derogatory information with respect to appellant’s expert, Mr. James Green.
On April 13, 1989, the jury returned a verdict in favor of appellant against appellee Skid Lid in the amount of $ 265,000 on the helmet claim. On the bicycle wheel claim, the jury returned a verdict against appellant and in favor of the bicycle defendants.
On April 21, 1989, appellee Skid Lid moved for a judgment notwithstanding the verdict, and on May 24 the trial court entered an Order granting the motion. The court did so because it found that Ms. Wilson had “assumed the risk of injury as to parts of her body patently not covered by the helmet.”
II. DISCUSSION
A. The Helmet & the Judgment Notwithstanding the [**7] Verdict
[HN1] We review the district court’s grant of a JNOV under the same standard as the district court used in determining whether to grant a JNOV. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):
All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” A motion for judgment n.o.v. should be granted only where “reasonable [people] could not arrive at a contrary verdict. . . .” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (citations omitted)
In applying this standard for the sufficiency of evidence, we also look to Georgia substantive law to determine whether Skid Lid deserved judgment as a matter of law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Salter v. Westra, 904 F.2d 1517, 1524 (11th Cir.1990).
Defendants in products liability actions have asserted two similar defenses in attempting to steer clear of liability, assumption of the risk and the “open and obvious [**8] rule.” 3 While the trial judge in this case based the JNOV on assumption of the risk, we also address the open and obvious rule because affirmance of the JNOV is proper even if based on a different rationale. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986).
3 This rule is also known as the “patent danger rule” and has its roots in a New York decision involving negligence law, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). New York later abandoned the rule in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).
[*1507] We need not reach the assumption of the risk issue if the helmet was not defective because Skid Lid would have breached no duty to Ms. Wilson. We thus initially address the open and obvious rule. [HN2] The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga. App. 811, 295 S.E.2d 183, 185 (1982). This determination [**9] regarding the peril is made on the basis of an objective view of the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 393 S.E.2d 64, 66 (1990) (certiorari denied June 21, 1990). In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like. Stodghill is instructive in this respect. In Stodghill, the plaintiff was using a bulldozer manufactured by the defendants to clear felled trees from a construction site when a tree jumped over the bulldozer blade and struck him in the chest. The plaintiff claimed that the machine was defective because it had no protective metal cage surrounding the driver’s seat. The Georgia Court of Appeals recognized that the plaintiff “was obviously aware that the bulldozer he was operating had no protective cage and that the absence of this safety device exposed him to the danger of being injured by anything which might strike the driver’s compartment.” Id. 295 S.E.2d at 184. The court concluded that
“because the failure of the appellees in this case to install a protective cage over the driver’s seat of the bulldozer was an obvious characteristic of the machine [**10] which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed, it cannot reasonably be considered a design or manufacturing defect under Georgia law.”
Id. at 185.
Similar to the absence of the protective cage on the bulldozer, it is or should be apparent to one who purchases an article of clothing or protective gear that the article can only protect that portion of the body which is covered. A person purchasing a bullet proof vest cannot realistically claim that he expected it to protect him from a bullet in the leg. Likewise, one purchasing a sleeveless t-shirt cannot protest that it should have protected him from a scrape on the arm. In the case at bar, rather than selecting a helmet covering her entire head, appellant elected to purchase a helmet that she knew covered only the top half of her head. She did know, or certainly should have known, that the helmet with less extensive coverage would not protect her from an impact to an area not covered by the helmet. Unlike a full helmet, the half-helmet was not designed to protect against impacts anywhere on the head. The extent of coverage was “an obvious characteristic [**11] of the [helmet] that created no hidden peril and did not prevent the [helmet] from functioning properly for the purpose for which it was designed.” Stodghill, 295 S.E.2d at 185. We thus find, as a matter of law, that the helmet was not defective under Georgia law. 4
4 We note that Georgia courts have been careful to avoid treating the American public as children where a peril is obvious or patent and the product thus not defective. In Weatherby, the five-year old plaintiff had been a passenger on an off-road motorcycle that did not have its gas cap in place. During the ride over uneven terrain, gasoline splashed from the open tank and ignited, causing burns to the plaintiff. The court found that an open fuel tank “surely suggests the possibility of spillage,” that because the fuel tank is located above the engine “gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug,” and that the dangers of spilled gasoline coming into contact with an engine are generally known. 393 S.E.2d at 67. The court consequently concluded as a matter of law that the peril of an open fuel tank resting over the engine and its spark plug was “an obvious or patent peril,” and that the product was thus not defective. Id. at 68.
[**12] Even if the failure to cover the full head were a defect, it is still beyond peradventure that appellant assumed the risk of injury to the parts of her body patently not covered by the helmet. [HN3] Under Georgia law, “‘if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is [*1508] barred from recovery.'” 5 Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975) (citation omitted). The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head. Had appellant, somehow, been unaware that the helmet only partially covered her head, the result might be different. As counsel for appellant admitted at oral argument, however, there is no evidence that she thought the helmet covered more of her head than it did cover, or that she believed it would protect her from injury to parts of her body not covered. Nor do we find, after our careful review of the transcript, any testimony to that effect. As for the second portion of the test, unreasonable use, it seems axiomatic [**13] to say that it is unreasonable to use a helmet to protect a portion of the body that the helmet clearly does not cover.
5 This test, in contrast to the open and obvious rule, looks to the subjective perceptions of the user or injured party. Another difference between assumption of the risk and the open and obvious rule is that while the latter places the burden of proof on the plaintiff, the former places it on the defendant. Weatherby, 393 S.E.2d at 66. See also Annotation, Products Liability: modern status of rule that there is no liability for patent or obvious dangers, 35 A.L.R. 4th 861, 865 (1985) (discussing open and obvious rule and the differences from assumption of the risk).
In sum, the district judge properly granted appellee Skid Lid’s motion for a JNOV.
B. Comments on the Evidence
At the close of the case, the district judge employed the time-honored, though little used, right and duty of a federal trial judge to comment on the evidence. As the Supreme Court stated in Quercia v. United [**14] States, 289 U.S. 466, 469, 53 S. Ct. 698, 698-99, 77 L. Ed. 1321 (1932):
[HN4] In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. (citation omitted) In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. (citations omitted) Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and [**15] light to laymen. (citation omitted)
[HN5]
The trial judge will not be reversed unless his comments “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” Id. at 472, 53 S. Ct. at 700. See also United States v. Hope, 714 F.2d 1084, 1088 (11th Cir.1983) (“[a] trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error”). 6 It is only where [*1509] this prejudice exists that the substantial rights of the parties are affected and Fed.R.Civ.P. 61 permits disturbing a judgment. 7 In assessing whether this prejudice exists and has affected the parties’ substantial rights, we consider the record as a whole and not merely isolated remarks. See Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 334-335 (5th Cir. Unit B June 1981). “The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.” Bass v. International [**16] Bhd. of Boilermakers, 630 F.2d 1058, 1065 (5th Cir.1980) (citations omitted).
6 Other circuits have adopted similar language regarding a trial judge’s right to comment on the evidence. See, e.g., White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990); Vaughn v. Willis, 853 F.2d 1372 (7th Cir.1988); United States v. Munz, 542 F.2d 1382 (10th Cir.1976), cert. denied, 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 555 (1977); Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir.1967); Meadows v. United States, 144 F.2d 751 (4th Cir.1944); A number of practitioners and commentators have also assessed the role of the judge in a jury trial. See, e.g., Bancroft, Jury Instructions, Communications, Juror Substitutions and Special/Partial Verdicts: Selected Topics — The Principal Law, 340 Prac.L.Inst. 611 (1987); Loeffler, Project — Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987 (III. Trial: Authority of the Trial Judge), 76 Geo.L.J. 986 (1988); Murphy, Errors in the Charge, 14 Litig. 39 (1988).
[**17]
7 [HN6] Fed.R.Civ.P. 61 provides in part:
“No error . . . is ground for granting a new trial . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Appellants allege that the district judge went too far in commenting on the evidence and on the testimony of their expert, Mr. Green. We do not doubt that a trial judge could misuse his authority. 8 After careful review of the record, however, while we are not prepared in this case to suggest the outside limits on a trial judge’s comments, we are satisfied that the district judge here did not overstep his bounds. As recounted in Part I.B. of this opinion, he went to great lengths to assure that the jury understood that it was the sole fact-finder in the case. 9 When his remarks are considered in their entirety, on the facts of this case we find no prejudice affecting the substantial rights of the parties.
8 Perhaps one of the best examples of a jury charge that would constitute an abuse of authority today, but was permitted prior to Quercia, is Judge Emory Speer’s eight and one-half hour, 92 page charge in United States v. Greene, 146 F. 803 (S.D.Ga.1906), cert. denied, 207 U.S. 596, 28 S. Ct. 261, 52 L. Ed. 357 (1907). In testimony before a congressional committee looking into the possibility of impeaching Judge Speer, Alexander Lawrence (one of Greene’s defense attorneys) characterized the judge and his charge as follows:
He knows the jury, knows how to play on their passions, on their prejudices, as no living man that I have seen could do it; he has a faculty for marshalling evidence that I have never seen another living man able to marshal; and in that Greene & Gaynor case he charged that jury for eight hours and I will challenge any six prosecuting attorneys in the United States, from the Attorney General down, all of them together, to take that mass of testimony taking three months’ time that Judge Speer heard, and then put it down in as ingenious an argument against the defense as Judge Speer put it in that thing. It was a masterpiece of oratory, but a very poor thing when you come down to look at it from a judicial standpoint.
H. Res. 234, 63rd Cong., 2d Sess. (1914) (Minority Report of Representative Volstead).
Since, Quercia, many appeals courts have overturned cases where the trial judge has gone too far. See, e.g., Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11 (2d Cir.1981) (trial judge’s comments to the jury gave all the arguments for the defendant, being “tantamount to directing a verdict” for defendant); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 761 (5th Cir.1979) (trial judge’s mistaken assertions virtually destroyed appellant’s circumstantial case, requiring reversal); Maheu v. Hughes Tool Co., 569 F.2d 459, 471-472 (9th Cir.1978) (trial judge’s comments amounted to “personal character reference” for witness and thus “went too far”).
[**18]
9 It seems that the jurors responded to the trial judge’s direction that they were the sole fact-finders. The judge brought to their attention that appellant’s expert had been prepared to testify that the helmet was defective because of one set of facts and then shifted his reasoning when that set of facts was disproven; nevertheless, the jury still awarded appellant $ 265,000 against the helmet manufacturer.
In the course of his remarks, appellant also contends that the trial judge improperly restricted her case to the testimony of her one expert, Mr. Green. In stressing the importance of Mr. Green’s testimony to appellant’s case, the judge stated as follows:
In this case, as in every case, there are the two big main issues: one, liability, and, two, the amount of any damages proximately flowing therefrom. The plaintiff has the burden of proving each and every element of the plaintiff’s case. The plaintiff’s entire case here, and in meeting the elements which must be proved, rests upon the expert testimony, [*1510] that is, the expert opinion, of Mr. Green. Except for Mr. Green’s testimony, the plaintiff [**19] has not made out a case of liability. With Mr. Green’s testimony, the plaintiff has made out a legal case on liability; therefore, the court suggests that the first, immediate, and crucial issue in the case for you to determine is the credibility or the believability of Mr. Green.
After studying the record, we find no merit in appellant’s contention. We are inclined to agree with the trial judge that, without Mr. Green, the case would not have been one for the jury.
In sum, we find that on the facts of this case the trial judge’s comments to the jury, when taken as a whole, neither excited a prejudice affecting the substantial rights of the parties nor incorrectly instructed the jury.
C. The Allegedly Similar Accident
Appellant argues that the trial court erred by refusing to admit evidence of the collapse of another wheel manufactured by appellees Trek and Opportunity. Appellant sought to show appellees’ notice of a defect in the wheel, the magnitude of the danger, appellees’ ability to correct a known defect, the lack of safety for intended purposes, the strength of the product, the standard of care, and causation.
The trial judge denied the proffer on the grounds that the evidence [**20] was not probative because of the necessity for a considerable amount of extrinsic evidence to determine whether the incidents were sufficiently similar to meet the standards of Fed.R.Evid. 403. 10 [HN7] A trial judge has broad discretion over the admission of evidence, Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985), and we find that the district judge did not abuse his discretion. 11
10 The cause of the alleged similar incident had never been established because that case settled out of court. The parties in the instant case vigorously dispute the actual cause, demonstrating that even had the trial court reached the issue of whether the two incidents were similar this issue would have required a trial within a trial.
11 Because of our disposition of this issue, we need not reach the question of whether the two incidents were actually similar, and if so, whether the prior incident would have been properly excluded under Fed.R.Evid. 403.
D. The Charge on “Legal Accident”
In his [**21] instructions to the jury, the judge included a charge on “legal accident.” 12 To determine whether such a charge is appropriate, we first look to Georgia substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). [HN8] Georgia law permits a charge on “legal accident” where there is evidence in the record authorizing a finding that the occurrence was an “accident.” 13 Chadwick v. Miller, 169 Ga. App. 338, 344, 312 [*1511] S.E.2d 835, 840 (1983). 14 Where appropriate, the charge is valid in a products liability case. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 579, 346 S.E.2d 923, 926 (1986).
12 This portion of the charge reads as follows:
Now, let me tell you that the mere fact that an accident happened or an occurrence happened from which injury stemmed standing alone does not permit a jury to draw any inference that the occurrence was caused by anyone’s negligence or by any defect.
Now, I have used the word “accident” loosely, as I think is commonly the practice, is interchangeable with the word occurrence producing injury, but in Georgia law accidental injury means, in connection with personal injury actions such as this, any injury which occurs without being caused by the negligence either of the plaintiff or of the defendants. The idea of accident removes responsibility for the cause of the injury if found to have occurred by reason of a legal accident as defined under Georgia law, that is, one which is caused by the negligence neither of the plaintiff or the defendants.
It is necessary that you find from a preponderance of the evidence in this case, in order to find for the plaintiff, that the occurrence and/or resulting injuries were the result of defect and/or negligence and/or breach of warranty to the exclusion of legal accident, as I have defined that term to you, because the plaintiff has the burden of proof, as I will charge you later, to demonstrate by a preponderance of the evidence that the occurrence did, in fact, result from defect and/or negligence and/or breach of warranty, to the exclusion of legal accident.
[**22]
13 [HN9] “Accident” is defined as “an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick, 169 Ga. App. at 344, 312 S.E.2d 835.
14 Appellant cites Seaboard Coastline R.R. Co. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), for the proposition that a charge on “legal accident” can be given only where there is no evidence of negligence on the part of either party. The Georgia Court of Appeals recognized in Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 386 S.E.2d 696, 697 (1989), however, that Delahunt had misstated the law in Georgia.
Because the manner of giving jury instructions is procedural rather than substantive, it is governed by federal rather than state law. McCullough, 587 F.2d at 759. In reviewing alleged errors in jury instructions, we must determine whether the trial court’s charge, considered as a whole, “sufficiently instructs the jury so that the jurors understand the issues involved and are not misled.” Mark Seitman & Assocs., Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th [**23] Cir.1988) (citation omitted). We will only reverse if we are left with “a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted).
After careful review, we find evidence in the record that supports a charge on legal accident as defined by Georgia law. We are therefore satisfied that the district judge properly guided the jury with respect to this issue.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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Win Jens Voigt’s 2014 Tour de France Bike!
Posted: August 23, 2014 Filed under: Cycling | Tags: Colorado, France, Google Play, iTunes, Jens Voigt, Twitter, USA Pro Challenge Leave a commentJens Voigt’s 2014 Tour de France Bike to be Given Away through USA Pro Challenge Tour Tracker Sweepstakes
Fan Favorite Giving Bike to Fans During Final Professional Race
Woodland Park, Colo. (Aug. 22, 2014) –Trek Factory Racing’s Jens Voigt (GER) will be giving away the bike he rode during the 2014 Tour de France through a sweepstakes on the 2014 USA Pro Challenge Tour Tracker mobile app. Fans will have a chance to collect a piece of professional cycling history as Voigt hangs up his jersey and retires from the sport following the Pro Challenge.
“Yep, the Pro Challenge is my last race. I still can’t believe it myself,” said Voigt. “I’ve been a cyclist for 33 years…that’s been the most constant part of my life. It’s going to be a big chunk that’s closing. There are going to be a lot of challenges coming my way. It was a good career. I had some great moments. I met some of the greatest people in the world. I am thankful for the sport of cycling and what it gave to me.”
To enter to win the Trek Madone Team Edition bike Voigt rode in the 2014 Tour de France, fans can download the free USA Pro Challenge Tour Tracker mobile app on iTunes and Google Play. Then, click on the “more” button at the bottom of the screen and complete the entry form.
Entries will be accepted starting today (Friday, Aug. 22) through Sunday, Aug. 24 at 11:59 p.m. MT. Applicants must be over 18 years of age and a legal resident of the U.S. to win. The winner will be selected and notified on September 2. For full rules and details, please log on to prochallenge.com/Jens.
“I think I have a pretty good fan base in the U.S. and it just felt right to end my career here in Colorado,” added Voigt. “I am a big fan of the idea that you are the master of your destiny. I want to stop in good condition and put on a show one more time…finish feeling good and strong, knowing that I squeezed every little bit out of me.
About the USA Pro Challenge
Referred to as “America’s Race,” the USA Pro Challenge will take place August 18-24, 2014. For seven consecutive days, the world’s top athletes race through the majestic Colorado Rockies, reaching higher altitudes than they’ve ever had to endure. One of the largest cycling events in U.S. history and the largest spectator event in the history of the state, the USA Pro Challenge continues to set records in professional cycling by taking the riders to unprecedented elevations. Featuring a challenging course, the fourth annual race will spotlight the best of the best in professional cycling and some of America’s most beautiful scenery. More information can be found online at www.USAProChallenge.com and on Twitter at @USAProChallenge.
Altitude is more than you think. Even professional bike racers are worried about the altitude in Aspen
Posted: August 19, 2014 Filed under: Cycling | Tags: Alex Howes, Aspen, Aspen Colorado, Ben Hermans, BMC Racing Team, Colorado, Garmin-Sharp, Pitkin County, Reijnen, Snowmass, United States, USA Pro Challenge, x, y, z Leave a commentThe conversation at the pre-race press conference and the press conference after stage one was the concern about the altitude.
Kiel Reijnen (USA) UnitedHealthcare Pro Cycling Team had this to say about the altitude
“I am by no means a pure sprinter, but this course is a bit of a slap in the face, what a tough way to start a stage race. It’s a really deceptive stage. It’s difficult to control and it’s really unpredictable. I’m still out of breath and it’s been more than an hour since the finish, and I was already at altitude to begin with.”
Alex Howes (USA) Team Garmin-Sharp
“I myself am a victim of the high altitude. It was pretty relaxed for the first third of the race, but that last lap really heated it up and it was just full gas from there on. You see a lot of punch and lift from riders toward the end, and that’s not really something you see at this kind of altitude. It’s pretty exciting to see that out here.”
Colorado Resident Kiel Reijnen Takes Stage 1 of the 2014 USA Pro Challenge
Crowds of Cheering Fans Lined the Streets of Downtown Aspen to Greet the Best Riders in the World
Aspen, Colo. (Aug. 18, 2014) – Set against the beautiful backdrop of Aspen and Snowmass, the 2014 USA Pro Challenge got off to an exciting start with a circuit race of three 22-miles laps that included 2,300 ft. of climbing per lap, creating an aggressive day of racing. Colorado Resident Kiel Reijnen (USA) of UnitedHealthcare Pro Cycling Team took home the stage win, which also puts him in the overall lead heading into the second day of racing.
“This stage was really exciting last year. It was a nail-biter and this year was the same,” said Reijnen. “The USA Pro Challenge is a huge goal for our team. Everyone is here watching and it’s really important to the team we do well here.”
In a close finish, Reijnen took the stage win, followed by Howes in second and Ben Hermans (BEL) of BMC Racing Team in third.
After the conclusion of the first stage of the USA Pro Challenge, Reijnen holds the Smashburger Leader Jersey, Lexus Sprint Jersey and, new for this year, the Colorado National Guard Best Colorado Rider Jersey . Jacques-Maynes has the Sierra Nevada King of the Mountains Jersey and Summerhill was awarded the FirstBank Most Aggressive Rider Jersey. Clement Chevrier (FRA) of Bissell Development Team has the Colorado State University Best Young Rider Jersey heading into Stage 2 tomorrow.
USA Pro Challenge Starts Monday
Posted: August 16, 2014 Filed under: Colorado, Cycling | Tags: Aspen, Aspen Colorado, Colorado, Denver, Monarch Mountain, USA Pro Challenge Leave a comment
Are you ready to race in Colorado?
The USA Pro Challenge starts Monday in Aspen.
Find the route near you and go see the race!
USA Pro Challenge brings out the best in its fans
Posted: August 13, 2014 Filed under: Cycling | Tags: #USAProChallenge, Bicycle Racing, Colorado, Costume, Cowboy hat, Cycling, Pro Challenge, Tour de France, USA Pro Challenge Leave a commentBicycle racing is more than just cycling. The atmosphere is always fun.
Why do spectators enjoy looking great at cycling raises
One of the great joys of watching the climbs on the grand European tours is the time we have to watch the outfits the spectators wear. That desire to be European fashion conscious has crossed the Atlantic and is growing in the US. The US Pro Challenge has seen an increase each year in the desire to be seen on the tour.
People in costumes always waive and love to have their picture taken.
Her sign says have you seen my friend. She must have known an orange cowboy hat and purple tights might make her friends hard to find.
Do the riders have the time as they wiz by to see the outfits?
Some costumes are difficult to assign a category too, however at least he is riding a bike. That may or may not be good for cycling.
Some of the outfits can be as easy as a hat to makes you stand out in the crowd or a hair color so you loved ones can spot you…..and hide. When wearing a similar hat the pope always seems to smile.
Do you think Jens saw him?
Then you see the group costumes where friends (or at least I hope they are friends) agree on a theme to wear to the raise. 
I’m not exactly sure the true nature of some of the themes. The relationship between Santa Clause and a Yeti in Vail still has me confused. The Wheaties box is just an afterthought….I hope.
It is bad when two people in a costume start to argue about it. It is always a hard to hear what the argument is about when both voices are coming from fur covered heads.
Age is not a limiting factor in costumes. No matter how small you may be getting dressed up is part of the excitement of the tour.
Unless maybe you dad makes you wear the costume, in the heat. But at least no one can recognize you if it covers your face.
There always the marketing gurus who send employees out to represent their products. Energy snacks, water bottles two perennial favorites.
The best are when friends know a rider in the tour and want to show their support. Although I’m not sure I would come out of the team RV to see my friends of a gold speedo was the costume of choice.
His face mask almost matches his tattoo.
Even the UCI gets into the race, maybe just a crown, but it is still more than a non-descript ball cap.
What is curious is when a city gets into the act. The winner of the stage that ends in Breckenridge has the dubious honor of being photographed with a fur hat and shield. I thought winners were to be lauded, not punished?
Even if you are not a big fan of bicycle racing (heaven forbid) you should at least stroll the start and finish near you to see the fans!
Buffets
Posted: August 6, 2014 Filed under: Cycling | Tags: #USAProChallenge, Bicycle Racing, Chris Froome, Pro Challenge, Richie Porte, Team Sky, USA Pro Challenge Leave a commentBuffets
You work with the PR team of a professional cycling team to schedule a time to talk to a rider. You email back and forth frantically during the race, at night and stop by the team bus in the morning to stand around wearing a pleading puppy face.
You get a date so you start working on your questions. You research the rider you got the time to sit down with, and you know the person inside and out. You start out with general ones, softballs to set the ground work, to start the information flowing. Then you start working your way to the tougher questions.
Then the day arrives. You attend the race and jot notes about your rider’s race that day. You get back to your room early to clean up, and you arrive ten minutes before the scheduled time. Not too early to look too eager, but never late. You find a place to talk, secure yet open so everyone feels good and information will flow. The rider comes down and sits down to talk. You exchange pleasantries, and you start with the easy questions to get things rolling.
But the rider throws back a curve, and your prepared questions gently fall to the floor as you grin and jump on the answer.
Buffets. What is your favorite thing about racing in the US? Buffets.
I had the opportunity to interview Richie Porte of Team Sky at the USA Pro Challenge. Every statement above is true. I did not want to sound like an amateur or an idiot and by the end of the interview, I did not care. When you ask a professional bicycle racer what his favorite thing about racing in a county, and he says the buffet’s it throws you for a laughing out loud loop from which you never recover.
After talking to professional cyclists for years, this was the last answer I expected, but it was the first thing out of the mouth of Richie Porte during the USA Pro Challenge. However, after listening to him compare the fare offered at the Tour de France or the rest of the European races I understood. Based on Richie’s comments, it was easy to maintain weight on the Tour de France because if you waited too long there was nothing to it. Even if you got to dinner early, it still was slim pickings.
Richie Porte, along with Chris Froome had been in the US for two weeks training and enjoying the country before the USA Pro Challenge even started. Once the race started, they raced. However, they thoroughly enjoyed the racing in the US, buffets included.
The next thing Richie said was the fans were fantastic. I’m sure after watching the three segments of the Tour de France through the 
UK, he might change his mind, but he said the US fans were fantastic. If you went off the back in France, the fans called you names, gave you grief and sometimes spit at you.
Here in the US, the fans cheered and clapped for everyone, even the last rider was encouraged to ride better. US fans are just happy to watch great athletes race.
Teams enjoy coming to the US for the USA Pro Challenge besides the food and the fans. The views along the race course are unmatched outside of Nepal. The crowds are not only enthusiastic, but they understand bicycle racing. The word peloton in Colorado does not get you a questioning express. Coloradans understand bicycle racing.
After spending an hour with Richie Porte, I had a great time, met a great person and obviously, a great cyclist. Richie still had a smile and a great sense of humor even after a hard day riding in the thin air.
This tough piece investigating a Team Sky rider reads like a chamber of commerce piece encouraging people to come to Colorado. Obviously, the riders enjoy racing in the US.
16 Professional Cycling Teams To Take on Colorado including BMC & Tejay Van Garderen
Posted: August 5, 2014 Filed under: Cycling | Tags: Colorado, Garderen, Peter Sagan, Tejay Van Garderen, USA Pro Challenge Leave a comment
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Enjoy Bicycle Racing? Enjoy photos of races from the 20’s & 30’s? Want to see new bicycle racing photographs from 100 years ago?
Posted: July 29, 2014 Filed under: Cycling | Tags: bicycle, Cycling, France, Goggles, Goggles & Dust, Googles & Dust: Images from Cycling’s Glory Days, Lance Armstrong, Tour de France, Velo Press, Vincenzo Nibali Leave a commentGoggles & Dust: Images from Cycling’s Glory Days, Velo Press
Velo Press will publish early this fall a new book for photographs of cycle racing from the early 1900’s that you have not seen before. Goggles & Dust: Images from Cycling’s Glory Days, has 101 photographs from the turn of the century of bicycle racing in France.
We’ve seen the suffering photos before; these cover all aspects of the race from the start to the finish, crashes and repairs to victories. The photographs bring back those great days in ways you’ve never seen before.
The greatest kick I got was seeing what has not changed in 100 years of racing the Tour de France. Cars still follow the riders, and based on the 2014 tour; riding conditions still suck, spectators still run alongside races as they struggle up hill.
At the same time, the photographs show you bicycle racing has come a long way. No longer do riders carry spare tires; water bottles are plastic and on the seat and down tubes and bikes are more than a single speed.
If you enjoy old cycling or new racing, you’ll love this book.
Goggles & Dust: Images from Cycling’s Glory Days, Velo Press, Hardcover September 2014, ISBN 978-1-937715-29-8
What do you think? Leave a comment.
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Want to Volunteer for the USA Pro Challenge, sign up Now!
Posted: June 20, 2014 Filed under: Colorado, Cycling | Tags: Aspen, Bicycle Racing, Colorado, Colorado Springs, Cycling, Denver, Monarch Mountain, USA Pro Challenge, Volunteer Leave a comment
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Everyday Kid Phil Gaimon Rides Off the Couch into a Pro Cycling Contract
Posted: May 10, 2014 Filed under: Cycling | Tags: Cycling, Gaimon, Garmin-Sharp, Phil Gaimon, Racing, Sports, United States, x, y, z 1 CommentBoulder, CO, USA – May 6, 2014 – Professional cyclist Phil Gaimon has written a book telling the true story of his unlikely transform
ation from fat kid to professional bike racer. Pro Cycling on $10 a Day: From Fat Kid to Euro Pro, is now available in bookstores, bike shops, and online. Preview Gaimon’s debut book at http://www.velopress.com/phil.
Plump, grumpy, slumped on the couch, and going nowhere fast at age 16, Phil Gaimon begin riding a bicycle with the grand ambition of shedding a few pounds before going off to college. He soon fell into racing and discovered he was a natural, riding his way into a pro contract after just one season despite utter ignorance of a century of cycling etiquette. A few hardscrabble seasons later, Gaimon was offered a contract to race in 2014 for Team Garmin-Sharp, an elite cycling team that competes at the sport’s highest level.
Pro Cycling on $10 a Day is a true story, a guide, and a warning to aspiring racers who dream of joining the professional racing circus. Gaimon’s adventures in road rash serve as a hilarious and cautionary tale of frustrating team directors and broken promises. His education in the ways of the peloton, his discouraging negotiations for a better contract, his endless miles crisscrossing America in pursuit of race wins, and his conviction that somewhere just around the corner lies the ticket to the big time fuel this tale of hope and ambition from one of cycling’s best storytellers.
Pro Cycling on $10 a Day chronicles the racer’s daily lot of blood-soaked bandages, sleazy motels, cheap food, and overflowing toilets. But Gaimon also celebrates the true beauty of the sport and the worth of the journey, proving in the end that even among the narrow ranks of world-class professional cycling, there will always be room for a hardworking outsider.
Pro Cycling on $10 a Day: From Fat Kid to Euro Pro Phil Gaimon Paperback with b&w photographs throughout.
6″ x 9″, 312 pp., $18.95, 9781937715243
Phil Gaimon is a professional cyclist for Team Garmin-Sharp, a writer, and an entrepreneur who retired from laziness and computer games in 2004 in favor of riding a bike to lose weight. On a whim, he started racing and soon discovered that he was a natural. Phil advanced rapidly through the amateur ranks and turned professional in his second full year. He slowly learned the rules and clawed his way to the top of the American pro ranks, joining Garmin-Sharp in 2014. He maintains a website, http://www.Philthethrill.net, where he chronicles his ceaseless pursuit of the best cookies and milk in America, and tweets at http://www.twitter.com/philgaimon.
Can’t wait to read it.
Providence Cyclo-cross Festival Expo ‘Dealer Day’ Seen as Alternative to Interbike
Posted: May 8, 2014 Filed under: Cycling | Tags: Bike Cooperative, Cyclo-cross, Interbike, PROVIDENCE, Providence Rhode Island, Roger Williams Park, x, y, z Leave a comment
Received this email today. Splintering the industry is not good for anyone.
Providence Cyclo-cross Festival Expo Includes ‘Dealer Day’
Event Seen as Affordable Alternative to Interbike
PROVIDENCE, R.I. – (May 6, 2014) – The Providence Cyclo-cross Festival aims to capitalize on its stature as a ‘must race’ event and draw exhibitors and retailers to it’s expanded expo. The newly introduced Dealer Day takes place on Friday, October 3, 2014 and adds an additional incentive for shops and manufacturers to attend the cornerstone of the Holy Week of Cyclo-cross.
“We’re working with The Bike Cooperative and select exhibitors to create a Friday event that focuses on the dealers. Many Northeast shop owners are too busy to leave their shops in September, their last great month before the off-season, to travel to Interbike. We’re offering a cost-effective means for manufacturers to reach them,” said event director Richard Fries. “Conversely, for the shops, we have an event that allows them to load up their staff in a van, drive a few hours to Providence, demo new product, attend some clinics, and maybe jump in a race. And they’re back at their shop in time to open on Saturday morning.”
Affordable display rates, an impeccable venue and a location within a short distance from major metropolitan centers like Boston and New York sweeten the deal.
“We want to offer an expo that is affordable for the bike manufacturers. We want the exhibitors for the energy and excitement they bring to the Festival, not their dollars. Whether you’re coming in with a full trailer or a small booth at the Builders’ Ball, Providence is a great value for all companies, large and small,” said Fries.
Space is limited and the expo is expected to sell out. Discounts are available for early registrants and space is allocated on a first come, first served basis. Pricing and registration are available at jw or Nick Keough at nickeough
ABOUT THE PROVIDENCE CYCLO-CROSS FESTIVAL: Selected as “The Best” of American cyclo-cross by Outside Magazine and as “The 2013 Domestic Event of the Year” by the editors of Cyclocross Magazine, The Providence Cyclo-cross Festival will be held Oct. 3-5, 2014, in historic Roger Williams Park. The internationally sanctioned event has drawn athletes from more than 20 nations. Additional attractions include the Divine Youth initiative, a consumer expo, food courts, the Harpoon Beer Garden, the New England Builders’ Ball, and Gran Fondo New England. For more information visit www.providencecrossfest.com.
May is National Bike Month
Posted: May 6, 2014 Filed under: Cycling, Mountain Biking | Tags: Bike-to-Work Day, Cycling, League of American Bicyclists, May, National Bike Month, Ride of Silence, Workweek and weekend Leave a comment
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Social media has become a powerful tool to spread the word about the joys and benefits of bicycling. So show your love by taking a moment today to upload our May is Bike Month Facebook timeline cover and freshen up your blog or website with a 
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Win Four Tickets to the Pro Challenge Stage of Your Choice: Enter the National Poster Contest by April 18th
Posted: April 20, 2014 Filed under: Cycling | Tags: Bike Race, Bike Racing, Cycling, Peter Sagan, Tejay Van Garderen, USA Pro Challenge Leave a comment
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Denver B-Cycle is hiring!
Posted: February 28, 2014 Filed under: Cycling | Tags: Colorado, Cycling, Denver, Denver B-cycle, Rental Bikes Leave a comment
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McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
Posted: February 20, 2014 Filed under: Cycling, Legal Case, Minors, Youth, Children, North Dakota, Release (pre-injury contract not to sue) | Tags: bicycle, Bismarck Park District, Cycling, Minor, ND, North Dakota, parent, Park District, Release Leave a commentMcPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
Scott Kondrad, a minor, by and through Shari McPhail as next friend, Plaintiff and Appellant v. Bismarck Park District, Defendant and Appellee
No. 20020196
2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
January 17, 2003, Filed
Prior History: [***1] Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
Disposition: AFFIRMED.
Counsel: Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.
Randall J. Bakke, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.
Judges: Opinion of the Court by Maring, Justice. Mary Muehlen Maring, William A.
Neumann, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.
Opinion By: Mary Muehlen Maring
Opinion
[**412] Maring, Justice.
[*P1] Scott Kondrad, a minor, by and through his mother, Shari McPhail, as next friend, appealed from a summary judgment dismissing his action for damages against the Bismarck Park District for injuries suffered in a bicycle accident.
We hold a waiver and release signed by McPhail exonerates the Park District for its alleged negligence in this case, and we affirm.
I
[*P2] The bicycle accident occurred on September 9, 1999, at the Pioneer Elementary School while Kondrad was [***2] participating in BLAST, an after-school care program operated by the Park District. Kondrad fell on the school grounds while riding a bicycle owned by a child who was not part of the BLAST program. Kondrad injured his arm in the fall, and McPhail subsequently sued the Park District for damages on Kondrad’s behalf, asserting Kondrad’s injuries were the result of the Park District’s negligent supervision of the children in the BLAST program. The Park District moved for a summary judgment, claiming McPhail had released the Park District from liability for the accident.
The district court construed the waiver and release signed by McPhail, determined it exonerated the Park District from liability, and granted the Park District’s motion for dismissal of the case.
II
[*P3] On appeal, Kondrad asserts the district court erred in granting the summary judgment dismissal and in concluding that the waiver and release signed by McPhail exonerated the Park District from liability for its alleged negligence.
[*P4] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to [***3] the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Jose v. Norwest Bank, 1999 ND 175, P7, 599 N.W.2d 293. Whether the district court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, P6, 615 N.W.2d 160. On appeal, we review the evidence in the light most favorable to the party opposing the motion for summary judgment, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Olander [**413] Contracting Co. v. Gail Wachter Invs., 2002 ND 65, P9, 643 N.W.2d 29.
[*P5] Resolution of this appeal requires us to interpret the “Parent Agreement” signed by McPhail when she enrolled Kondrad in the BLAST program, which included the following waiver and release language:
I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of [***4] severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ward on account of my participation of my child/ward in this program.
Kondrad argues this language must be interpreted as exonerating the Park District from liability for damages only as to injuries sustained during “activities associated with” the BLAST program. The Park District has conceded that riding a bicycle was not an activity associated with the program. Kondrad asserts the release does not, therefore, exonerate the Park District from liability if its negligence resulted in Kondrad incurring injuries while riding the bicycle. The Park District asserts the waiver is unambiguous and released the Park District from liability for any and all injuries sustained by Kondrad while participating in the BLAST program. The Park District argues the waiver and release exonerated it from [***5] liability for negligence resulting in injury or damages to Kondrad while participating in the program irrespective of whether, at the time of the injury, Kondrad was involved in a planned activity associated with the program.
[*P6] Generally, the law does not favor contracts exonerating parties from liability for their conduct. Reed v. Univ. of North Dakota, 1999 ND 25, P22, 589 N.W.2d 880. However, the parties are bound by clear and unambiguous language evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party. Id. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel. State, 2002 ND 128, P7, 649 N.W.2d 532. The construction of a written contract to determine its legal effect is a question of law for the court to decide, and, on appeal, this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation of it. Egeland v. Continental Res., Inc., 2000 ND 169, P10, 616 N.W.2d 861. [***6] The issue whether a contract is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc., 2001 ND 187, P14, 636 N.W.2d 189. An unambiguous contract is particularly amenable to summary judgment. Meide, 2002 ND 128, P7, 649 N.W.2d 532.
[*P7] We conclude the language of waiver and release under the agreement signed by McPhail is clear and unambiguous. We construe all provisions of a contract together to give meaning to every sentence, phrase, and word. U.S. Bank Nat’l Ass’n v. Koenig, 2002 ND 137, P9, 650 N.W.2d 820. The assumption of risk and waiver clauses are separate and distinct. Each contains a clearly expressed meaning and consequence. Under the assumption of risk clause, McPhail agreed to assume the full risk of injury and damages resulting from Kondrad participating in [**414] any activities associated with the BLAST program. In addition, under the waiver and release clause, McPhail waived and relinquished all claims against the Park District for injuries or damages incurred on account of Kondrad’s participation in the BLAST program. The language of waiver and release is not limited to only those injuries incurred [***7] while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.
[*P8] It is undisputed that Kondrad’s bicycle accident occurred on the school grounds while Kondrad was participating in the BLAST program. This is the very type of situation for which the Park District, under the release language, insulated itself from liability for alleged negligence while operating the after-school care program. Under the unambiguous language of the agreement, McPhail exonerated the Park District from liability for injury and damages incurred by Kondrad while participating in the program and caused by the alleged negligence of the Park District. 1
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -1
Under N.D.C.C. § 9-08-02 a party is precluded from contractually exonerating itself from liability for willful acts. See Reed v. Univ. of North Dakota, 1999 ND 25, P22 n.4, 589 N.W.2d 880. The release in this case is not specifically limited to exonerating the Park District from liability for only negligent conduct.
However, Kondrad’s claim against the Park District is based on negligence, and he has not argued the release is invalid because it purports to exonerate the Park District from liability for intentional or willful acts. We do not, therefore, address that issue in this opinion.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
[***8] III
[*P9] We hold the Parent Agreement signed by McPhail clearly and unambiguously exonerates the Park District for injuries sustained by Kondrad while participating in the BLAST program and which were allegedly caused by the negligent conduct of the Park District. We further hold, therefore, the district court did not err in granting summary judgment dismissing Kondrad’s action against the Park District, and we affirm.
[*P10] Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.
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Wow, very amazing and generous. Primal (Denver Bicycle Clothing Company Gave Back More Than One Million Dollars in 2013
Posted: January 31, 2014 Filed under: Cycling | Tags: Bike MS, Clothing, Cycling, Denver, League of American Bicyclists, Primal, Primal Gives Back program, Sea Otter Classic, Trips for Kids Leave a comment
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Saris sponsoring National Bicycling Poster Contest
Posted: January 21, 2014 Filed under: Cycling | Tags: Bicycling, Cycling, Poster Contest, SARIS Leave a comment
In 2010 we designed a poster contest to engage our youth on the numerous benefits of the bicycle. Over the past 3 years we have reached over 20,000 fifth graders through our contest. First place state winners receive a bike, light and helmet. One national winner will go to the 2015 National Bike Summit in Washington D.C.
To Enter:
1. Visit here to see if your state is participating.
3. Send poster in by March 7 to your coordinator.
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Stage 7 of USA Pro Challenge Decided: Boulder through Golden to Denver. 3 Bike Epicenters in 1 Day
Posted: December 26, 2013 Filed under: Cycling | Tags: Boulder, Colorado, Denver, Golden, Pro Challenge, USA Pro Challenge Leave a comment
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People for Bikes is Growing and Making Cycling Better
Posted: December 10, 2013 Filed under: Cycling | Tags: bicycle, Cycling, People for Bikes Leave a comment
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Navigate Colorado state parks with new trail maps
Posted: November 22, 2013 Filed under: Colorado, Cycling, Mountain Biking | Tags: Bicycle Colorado, Bike Trails, Colorado State Parks, Parks, Trails Leave a commentColor-coded to make finding the right trail easier.
If you’re a frequent user of trails in Colorado’s state parks, here’s great news: Colorado Parks and Wildlife has created 60 new trail maps that use color coding to show allowable uses on specific trails, indicated by mile marker.
The new maps include information such as elevation, trail length, trail surface and GPS grids, similar to USGS 24k topographic maps.
The free maps are available on the Colorado Parks and Wildlife website.
From:
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BSA Summer Camp was able to have punitive damages claim dismissed prior to trial
Posted: November 18, 2013 Filed under: Minors, Youth, Children, Mountain Biking, Summer Camp, Tennessee | Tags: biking, Boy Scouts of America, Gross negligence, Inc., Mountain biking, Product liability, Punitive damages, Sequoyah Council, Sequoyah Council. BSA Leave a commentPlaintiff’s complaint was not sufficient to adequately plead its claim for punitive damages.
N.H., a minor child, v. N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)
Plaintiff: N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually
Defendant: Sequoyah Council, Inc., Boy Scouts of America
Plaintiff Claims: (1) it [defendant] failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners
Defendant Defenses: Unknown
Holding: Motion to dismiss punitive damages claim by defendant granted for defendant
This is a pre-trial decision and should not be relied upon for a firm statement about the law in Tennessee as far as dismissing claims prior to trial.
The plaintiff was a boy who went to a Boy Scout Summer Camp in Tennessee. While mountain biking at the camp his brakes allegedly did not work, and he rode off the trail and hit a tree.
The plaintiff sued for a multitude of claims, including an allegation that punitive damages were being requested. The defendant filed this motion prior to trial to eliminate the claim for punitive damages.
Summary of the case
The court looked at Tennessee’s law concerning punitive damages. Under Tennessee’s law, punitive damages are only available for “only the most egregious of wrongs.” “Accordingly, under Tennessee’s law, “a court may … award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.”
Punitive damages are not available for gross negligence. To receive punitive damages under Tennessee’s law:
A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.
In this case, the complaint did not make any allegations that fit within the required definitions. Consequently, the part of the complaint demanding punitive damages was dismissed.
So Now What?
This was a pre-trial motion that was of interest; however, this is not a final decision in the case and could be overturned by another court after the trial on this case.
Tennessee has higher requirements for most other states to ask for and receive punitive damages. Consequently, the defendant was able to dismiss that part of the complaint in advance of trial.
It never hurts to know the specifics of what is required to prove damages above normal damages. That knowledge can help keep you safe.
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N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)
Posted: November 18, 2013 Filed under: Cycling, Legal Case, Summer Camp, Tennessee | Tags: biking, Boy Scout, Boy Scouts of America, Eagle Scout, Elizabeth Hernandez, Gross negligence, Inc., Mountain biking, Product liability, Sequoyah Council, Sequoyah Council. BSA, Tennessee Supreme Court Leave a commentN.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)
N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America
NO. 2:11-CV-171
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
2012 U.S. Dist. LEXIS 87452
April 30, 2012, Filed
COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.
For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.
JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.
OPINION BY: J. RONNIE GREER
OPINION
ORDER
This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.
FACTS
The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.
The defendant was allegedly negligent as follows: (1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).
Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.
LEGAL STANDARD
[HN1] Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
[HN2] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).
ANALYSIS
[HN3] “In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.
[HN4] The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. 1
1 [HN5] The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”
Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].
The Court has reviewed the Complaint and agrees with the defendant. [HN6] “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.
[HN7] Under Tennessee law, “A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) ( [HN8] “To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).
In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.
ENTER:
/s/ J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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USA Pro Challenge gets jump on 2014 and announces host cities
Posted: November 5, 2013 Filed under: Colorado, Cycling | Tags: #ProChallenge, Aspen, Bicycle Racing, Breckenridge, Colorado, Colorado Springs, Crested Butte, Cycling, Denver, Gunnison, USA Pro Challenge, Vail, Woodland Park Leave a commentLast day of race to be voted on by viewers and cyclists and Tom Danielson got his wish
The USA Pro Challenge has announced the 2014 race. The host start and finish cities are:
Stage 1: Monday, Aug. 18 – Aspen Circuit Race
Stage 2: Tuesday, Aug. 19 – Aspen to Mt. Crested Butte
Stage 3: Wednesday, Aug. 20 – Gunnison to Monarch Mountain (mountaintop finish)
Stage 4: Thursday, Aug. 21 – Colorado Springs Circuit Race
Stage 5: Friday, Aug. 22 – Woodland Park to Breckenridge
Stage 6: Saturday, Aug. 23 – Vail Individual Time Trial
Stage 7: Sunday, Aug. 24 – ???
The question mark for the final stage is a pretty neat finish idea. The public will get to vote for the final stage they want. The choices are:
Denver Circuit Race similar to the final stage of the 2013 race
Start in Golden (2012 Stage 6 start city) and finish in Denver
Start in Boulder (2012 Stage 6 finish city) and finish in Denver
Start in Boulder and end in Golden
Go here to vote on the race you want. What’s Your Vote For Stage 7? Voting gets you a 15% discount off USA Pro Challenge items in the store.
The course:
The course is similar to the very successful 2013 race. Cities with two things; money and people who want to watch a bicycle race are involved. So Aspen and Vail are probably always going to be on the race circuit. The turn out and support in Gunnison, Crested Butte and Mt Crested Butte is 100%, even though that is only 20% of what Vail turns out. Breckenridge and Colorado Springs are next as far as both and the perennial Denver is becoming the home to great cycling because of work of past volunteers and the USA Pro Challenge.
Merry Christmas Tom Danielson
The only location with issues will be the finish on Monarch Mountain. This finish is a long way from Gunnison and close to Chaffee County, but still lacking in numbers of people. However it fulfills team Garmin Sharp’s Tom Danielson’s Christmas wish to have a mountain stage win at the Pro Challenge. Now he better win that stage!
But that will be a great finish no matter how many people. If you are a fan of the tour in Europe everyone watches, this will become a classic just like those finishes. It is a long and grueling climb. Probably only Wolf Creek Pass from the west is steeper. Finding a good place to see the race is going to be tough so get their early to stake out your spot.
Overall the race course looks fantastic so far. Until we see the actual routes we’ll not know the elevation or distances, however with the starts and finishes already picked this is destined to be another great week of cycling in Colorado.
It is going to be a great week of bicycle racing in Colorado.
See Host Cities Announced for 2014 USA Pro Challenge
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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Interbike 2013
Posted: October 2, 2013 Filed under: Cycling, Mountain Biking | Tags: bicycle, biking, Cycling, Interbike, National Bicycle Dealers Association, NBDA, Tradeshow Leave a commentThe Good, The Bad, The Ugly and the Confusing
Overall, I believe Interbike was a success for the exhibitors attending and indoors.
New Venue: The show moved from the Sands to the Mandalay Bay Convention center. I had been to the convention center many times for the ski show and was familiar with the venue. Everyone else seemed confused with the new venue and booth arrangement. However, that confusion had a big payoff. The smaller 10 x 10 booths that normally don’t see anyone till late the first day or later were packed from the beginning. I talked to one exhibitor who had expected to have meetings the morning of the first day and did not get to them because of the traffic. That’s great.
Overall everyone thought traffic was good and constant.
Mandalay Bay’s food court was closed so that left few options for food. 4 options actually, all with the same fare. Day 1 and 2 the food was expensive but great. Day 3 the lettuce started to wilt. $7.50 for a Gatorade was also a little tough, but I should be used to it by now at trade shows.
When the Food court is open, life will get better. More and better food options are always great at a trade show.
Part of the show was outside. In theory, it was a great idea, the opportunity to test bikes, check out things what would not fit or would be hard to get into a trade show. The only problem was Mother Nature did not cooperate. It was hot. Most attendees got about 150’ out to the “paddock” and quit, returning quickly to the air-conditioned indoors. However the idea works.
The venue did bring back the crit. Having two bicycle races at a tradeshow, cyclecross and a crit are great! Two of the best reasons to attend the show is to relax after the day on the show floor and watch racing rather than crowing into a bar and not getting served (sorry started thinking about OR at SLC).
It would be nice to have a couple of straight aisles to move from one end of the show to the other. It helps with orientation also.
The overall opinion of the move to Mandalay Bay from the Sands: nicer bathrooms.
Eventually, everyone will know where everyone else is and things will settle back to the old familiarity everyone felt at the Sands. Mandalay Bay is smaller than the sands, but with the outdoor space, (weather permitting) and how much nicer the entire area is, Mandalay Bay will work.
Traffic: Traffic was down; Interbike preliminary numbers reported “Overall attendance was down 7 percent from 2012”. I think 7% is optimistic. Day two of the demo seemed that way to everyone I talked to. However, the total numbers do not matter; it only matters if the right people were there and every exhibitor I talked to accept one said they were happy with the attendance.
The one exhibitor who thought numbers were down was upstairs in the main hall and could have been downstairs in health and fitness business. That area was light, light might not be the best word, void might be better.
Walking through the health and fitness business section, it seemed like the same number of exhibitors were there. However buyers were not. Part of the problem was there was nothing on the main show floor saying where to find H&F Biz. or how to get there. I finally asked someone on how to get to the H&F Biz.
The App. The Interbike App was much better, must faster and worth downloading. Don’t go to a tradeshow and not use the app if they have one. The only problem was people walking around following their phones and having me bump into them……or maybe I was following my phone and bumping into them…..
Demo. The demo is the best part of Interbike. You get to ride bikes and figure out how bikes ride. You can compare bikes side by side or ride by ride. You get to talk to the mechanics, the people who work on the bikes and ask them questions about what works and what does not work. I’m afraid that Interbike will become like the ski show. People show up for the demo and skip the tradeshow.
Consumer Day: The major talk of the show was Consumer Day: The big talk for the entire show, instead of what was new, consumer day. Originally, Interbike tried to entice retailers to bring six of their best clients to Vegas and attend Interbike on the last day, for $50 each. That was expanded to anyone who attended Vegas Cyclecross and paid less, then anyone who rode the Vegas Fondo, then members for People for Bikes. Supposedly, the difference in what you paid was a different swag bag.
Exhibitors had three issues throughout the show: How was it going to work? Information was either hard to find or just missing as far as most exhibitors were concerned.
They’re going to steal us blind. One booth used plastic wrap on their booth each night to prevent theft when no one was in the booth. Friday morning they left the wrap on.
Can we sell to the people coming in? Many exhibitors pay for part of their costs and save shipping by selling to the exhibitors the last day. Retailers have a great deal on product and exhibitors have less to pack and ship and a little cash in their pocket at the end of the show. Exhibitors were met Friday morning with a piece of paper warning them not to sell anything on the last day. This was met with mixed reaction. Some booths that normally sold everything packed up everything and some booths were empty just as they normally were.
Consumer badges had a yellow/tan background. I started counting them when I saw them. I waited by the main door at 9:00 am expecting a rush of consumers. There was no rush of anyone. (I could have been at the wrong door…..) By 4:00 Pm I had counted 36 consumer badges. I did not search; I just counted if I saw a badge. By mid-morning, many consumers had turned their badge around so they were not identifiable as a consumer, so I’m sure there were more people than 36 consumers.
Interbike reported that “Preliminary data shows that approximately 750 verified consumers attended Interbike’s 1st consumer-access day on Friday, September 20th.” I think that is a little bit of a stretch or they reported something wrong. There were not 750 people on the show floor combined on Friday: Exhibitors, Buyers, Media and Consumers. I can’t believe I missed 714 people walking around the show floor.
The biggest tragedy of consumer day was exhibitors thought the consumers had chased buyers away. The exhibitors seemed right. There appeared to be a lot less buyers on the floor the last day. This was an open discussion on the floor throughout Friday.
The one funny thing is what the “consumers” did buy. Las Vegas has a dozen booth filler companies as I call them. I met one at an Interbike a while ago. They live in Vegas and make a living selling stuff at tradeshows. Many times they have nothing to do with the show. They are contacted by the convention center owners or the tradeshow when a tradeshow has space. They just quickly move in, set up and sell what they have. It is better to have “what are they doing here” booths than empty space according to my source.
At this year’s Interbike half of the consumers were walking around with bags from one of these booths. It was some sort of muscle stimulate selling for $60+ dollars on the show floor and available online for $5.
At least there wasn’t a personal injury law firm with a booth like last year.
Should you attend?
Yes. You should always attend your industry tradeshow.
1. You find new things. Not in the big booths, but the next new thing that sits by your counter or in five years may occupy a large portion of your showroom floor. Small companies can’t hire reps and can’t come to see you. The next great bicycle thing only shot is the national tradeshow. That five minutes they can grab from you aisle you walk the back rows may be your profit next year.
The big booths have reps; the small booths have one shot.
2. You need to learn. Not just from the education seminars but from everyone there. Standards change. The legal balance on how you run your store shifts with what some think is the wind. The best chance you have to stay on top of these issues is attending a trade show. Conversations in booths and in aisles can make big difference in how you run your store.
3. Industry Support. The industry’s only real chance together is at a tradeshow. Those people, who volunteer their time and money to serve on boards for you, need to know it is worth their time and effort. You should show up to show the organizations that serve you, both as a retailer and a rider, that they are doing a good job. You need to let them know you care. The National Bicycle Dealers Association (NBDA) booth was staffed by a board member the entire show. You could walk up at any time and talk about your issues, gain their insight and let them know you appreciate their efforts.
4. You put a face on an email or a phone number. Relationships are the key to the cycling industry. The stronger the relationship the better you and the industry. When you know who you are dealing with. When their face pops into you mind when you answer the phone the better your store or your
If nothing else you can stand around with the rest of us and watch consumers walk around…….
What do you think? Leave a comment.
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If you agree to the rules you have to follow the rules
Posted: September 30, 2013 Filed under: Delaware, Mountain Biking, Release (pre-injury contract not to sue) | Tags: Bike Race, Cycling, DE, Delaware, Delaware Trail Spinners, Mountain biking, National Offraod Bicycle Association, NOBA, Release, Rules, Sanctioning, Sanctioning Body, Standard of Care, Standards, U.S. Cycling Federation 2 CommentsSanctioning body said you must do XYZ, which creates a standard of care you will be judged by
McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)
Plaintiff: Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased
Defendant: National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners
Plaintiff Claims: negligence
Defendant Defenses: release
Holding: for the plaintiff, sent back for trial
In this case the deceased was racing in an Off Road [Mountain] Bike Race when he died of dehydration. The lawsuit was started by his parents against the organizations that sanctioned the race, NORBA, the race, and the race course owner. The suit alleged failure of the standards created by the sanctioning organization even though race had agreed to follow the standards.
The decedent died racing in a mountain bike race after being discovered along the race course unconscious. This was the deceased second NORBA race. There were no water or aid stations along the course. However the riders had access to their own water bottles on their bikes.
The plaintiffs argued there was no way for a beginner to access their water bottle on the course because it was so difficult unless they stopped riding. The only water available was what the participants brought with them. No physician, ambulance or emergency medical personnel at the race.
As a sanctioned race, NORBA provided defendant Delaware Trail Spinners the race organizer, with a “Pre-Event Planning Checklist.” In order to host the event the defendant Trail Spinners had to go through the checklist and agree to abide or provide the items on the checklist. The race director for Trail Spinners specifically stated that “there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race.” NORBA also sends an official who according to the checklist will confirm issues and sign off on the checklist. In this case the NORBA representative did not sign off on the checklist.
To be able to race participants had to sign a one day membership to NORBA and sign a release. The court pointed out that no one explained the release to the participants. The back of the trial membership form said that everyone had to carry 8 ounces of water and that if the race exceeded sixty minutes NORBA would provide water to the race participants.
Before the race began one of the Trail Spinners race organizers, spoke to the 80 to 100 race participants. He told them without a bullhorn or PA system that there was no ambulance on site, but that one could be called if needed. He also told the contestants to be “”careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.”
The deceased was found after a search in an unconscious state off the trail. The friend called 911 from his cell phone and went and got assistance back at the race headquarters. When he arrived back with two people to help him they started CPR. The deceased bike still had a water bottle with water in it. The deceased died of heat stroke fifteen days later.
Summary of the case
Delaware law, the state where the race was held, was the law applied to this case. The defendants filed a motion for summary judgment based on the release and the defense of primary assumption of the risk. Delaware merged secondary assumption of risk with comparative negligence, however Primary or express (written) assumption of risk is still a defense. The court defined the differences as:
Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.”
The court quickly concluded that the summary judgment granted by the lower court should be overturned. The court felt that
…genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race.
The court reviewed the record of the case pointing out every place where the requirements set forth by the sanctioning body, NOBA were not met by the race. (Whether those issues would have made a difference was never discussed.)
The court then shifted and wrote that because it could be argued that the deceased did not understand the release was a waiver of the risks that it was a material fact, which voided the release.
In the present case, plaintiffs assert that a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.
The court arrived at this decision by stating the law and then interpreting it differently than all other courts had interpreted the law.
However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms.
Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous.
If you don’t understand what you are signing, then the release was not clear and unambiguous. I know of no other case that has argued that before.
So Now What?
The obvious issue here was the written documentation that required water and first aid and the documentation given to the deceased that stated water would be available where not available. Every race, camp, organization needs to develop a checklist or risk management plan so they can operate. However, as in this case, failing to follow any checklist was enough to lose the defenses of Primary Assumption of the Risk and Release and send your case to trial.
ØIf it is written down and you agree to it, you must follow it.
ØIf it is written down by an organization that you belong to or are sanctioned by, then you must agree to it.
ØIf an organization that you belong to writes a standard, then you must meet the standard!
The court then looked at these facts and was not happy. It then applied the facts in such a way that the court could find the release invalid and send it back for trial.
To see other cases where the defendant lost because they violated their trade associations standard of care see:
ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp http://rec-law.us/zmKgoi
Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp http://rec-law.us/y7QlJ3
Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for. http://rec-law.us/14MebM4
Plaintiff uses standards of ACCT to cost defendant $4.7 millionhttp://rec-law.us/11UdbEn
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent http://rec-law.us/wszt7N
To Read other articles about standards see:
Can a Standard Impeded Inventions? http://rec-law.us/yOcca2
Playgrounds will be flat soon http://rec-law.us/zGC4DZ
Staying Current http://rec-law.us/ArdsVk
Stop Feuding, I doubt, move forward anyway, I think you can. http://rec-law.us/P763zu
This is how a standard in the industry changes http://rec-law.us/w76X3K
Words: You cannot change a legal definition http://rec-law.us/AbJ540
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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