Advertisements

Want a Job Working on the River? USFS has 6 River Ranger Positions Open on Snake River!

Seasonal hiring started earlier this year for Forest Service seasonal workforce for Summer 2019. The Application period open day on September 10, 2018 and close at midnight EST October 10, 2018

Jackson Ranger District will be hiring up to 6 Forestry Technician “River Ranger” in Jackson, Wyoming on the Snake River ranger from GS-04 to GS-06.. The GS-06 will be serve as the crew lead.

Announcement numbers

GS-04 19‐TEMP‐R4‐FTRECRR‐4DT‐BV
GS-05 19‐TEMP‐R4‐FTRECRVR‐5DT‐BV
GS -06 19‐TEMP‐R4‐FTREC‐6DT‐BV

Please contract for addition information or question about the River Ranger Positions

David Cernicek – River Manager
307-739-5417
dcernicek

John Newman – Lead River Ranger
307-739-5538
johnnewman

Thanks,
John B. Newman

rms%20-%20logo.jpg

“Supporting professionals who study, manage and protect North America’s rivers”

River Management Society ~ PO Box 5750, Takoma Park, MD USA 20913-5750 ~ +1-301-585-4677

open?upn=GJ4razR2F2b9e2-2BhTGB4XftE9mPndUqfrrTiMJcmXrtxlIQ3vqgcR0C0-2Bw9S39wAM0waKkgSc0owo8mmuaVjA8y03bVc7VMrs9YYlxirIY4WLtlYqnAwpG8ke7MPH56qskSI4dxRe1pg9g0nkrifKEGW4-2FlPF90KcV2MMe0jGu98TX7hhrCcOza3yKjTbIX47LWLwWqwcDP0KHBjrbld77e-2BkgHTAncELxyFF-2FXc2qElhUnK2tkq66GnaLfZPSm-2F6VUbWP-2FC1Nv3Kf1eKqG-2FmcLS2Ltbq4EYaKOHCylQDdxaheXZJfDIY-2Fv4s3FyQDrZ28DgMT4frM8jW8UnvntnMg-3D-3DRiver 2019.docx

Advertisements

Kayaking and Rafting Equipment on Sale!

10%-60% OFF select items.
457da7c1-4e12-4f38-99f8-8dd78fccf904.jpg

DOWN RIVER’S FALL SALE

Thurs, Sept. 6th – Sunday, Sept. 16th at Down River Equipment

Don’t wait until next season to gear-up! Winter is the

best time to get your rig dialed in for the upcoming season.

When the snow starts to melt, be River-Ready!

S.gif
Check Out these Sales!!

10%-60% off select items

(Valid in-stock items only)

231442b2-9db2-4f7c-a719-ea11e2090836.jpg
15% Off Hyside
d6f73509-95d6-4ccb-9fb5-2d4eaaf80ff8.jpg
20% Off Sawyer
1ebdba24-12d2-44a2-b94d-0e8601ffd0c0.jpg
20% Off Astral
db6ee0eb-a223-415f-9f2b-fcd0dd17a637.jpg
20% Off Cataract Oars
00aa5005-1e4a-4a8f-9aea-627a3c1042c8.jpg
Up to 60% Off Apparel
03d153f0-4321-4da1-b47f-582fa9e39611.jpg
15% Off DRE Cargo Gear
S.gif
This is just a glimpse into this Enormous Sale! Shop our Website to Checkout the Full Sale!
Shop Now
S.gif
3156de73-29b7-4e1e-b04b-bd5a1e088559.jpg
Spend $100-Get a Raffle Ticket!

Last years Grand Prize Winners went home with a Brand New Maravia Playcat!!

Click Here for Raffle Details
S.gif
ROCKY MOUNTAIN RAFTS 15% OFF

Valid September 6th-16th. In-stock items only

415dbee2-31cd-482c-aa08-9e34b97e7e82.jpg
S.gif
As Always, Give us a Call for any Questions!
S.gif
6387bee0-8537-410b-962e-6258d5508d2c.jpg S.gif
S.gif S.gif

Down River Equipment

11937 West I-70 Frontage Road North

Wheat Ridge, CO 80033

Phone: 303.467.9489 | Fax: 303.940.8812

Email: dre

Website: www.downriverequip.com

S.gif
Down River Equipment Company | 11937 West I-70 Frontage Road North, Wheat Ridge, CO 80033
@downriverequip
#PaddlesportsLaw #RecLaw #RecreationLaw #OutdoorLaw #ORLawTextbook http://www.rec-law.us/ORLawTextbook #ORLawTextbook #OutdoorRecreationTextbook #ORRiskManagment #OutdoorRecreationRiskManagementInsurance&Law @SagamorePub
http://www.rec-law.us/ORLawTextbook
Virus-free. www.avast.com

It’s Showtime—Welcome to Paddlesports Retailer 2018!

https://gallery.mailchimp.com/a2ca0cd34300ff7a11aa2898a/images/e7dfa937-3c6f-4a89-b4a3-01fcdf32d410.jpg

Proudly Presenting the Exhibitors, Buyers & Schedule for
Paddlesports Retailer 2018
(growing bigger each day)

The official tradeshow of the paddlesports industry arrives in Oklahoma City this month. Join more than 700 buyers, reps & paddlesports media already signed up & ready to go!

https://gallery.mailchimp.com/a2ca0cd34300ff7a11aa2898a/images/dd481381-75e5-4431-9a65-c811ec6bdc03.jpg
Packed Show Schedule
Make time to see & do it all! View the official schedule from Demo Day to Awards Night!
https://gallery.mailchimp.com/a2ca0cd34300ff7a11aa2898a/images/000e4ba1-5b44-4428-86d9-e83269e43052.jpg
Paddling Magazine Product & Industry Awards
Submit your best products within 12 categories today. Buyers & media will be voting!
https://gallery.mailchimp.com/a2ca0cd34300ff7a11aa2898a/images/5bee760f-7771-456b-bbe3-0e7e9b9494c0.jpg
136 Exhibitors

See the impressive list of participating vendors, their booth numbers & floor plan locations.

https://gallery.mailchimp.com/a2ca0cd34300ff7a11aa2898a/images/986719f8-0c08-469a-a018-c1e679eb3394.jpg
Fab Demo Day Entertainment
OKC craft brewers COOP Ale Works will be ready to party at Riversport Adventure Park, along with newgrass funk band Arkansauce at 7pm, 8/27.
https://gallery.mailchimp.com/a2ca0cd34300ff7a11aa2898a/images/77a8cc9f-c520-47dd-899a-363f4394667f.jpg
To-Date Store Registrations
475 buyers have committed, with more signing up each day! Don’t delay: register for FREE.
https://gallery.mailchimp.com/a2ca0cd34300ff7a11aa2898a/images/b04bed32-2aae-4cb4-a4a3-3e9390b3290f.jpg
Take in OKC
Experience this 100-million-dollar paddling destination with your colleagues & paddling friends from around the world! Our OKC video sets the stage.

https://paddlesportsretailer.us15.list-manage.com/track/open.php?u=a2ca0cd34300ff7a11aa2898a&id=2599d53210&e=3b3f7654a6

Virus-free. www.avast.com

Join Save the Colorado to Help Save the Colorado

Donations Subscribe to News
Save The Colorado
Hi Friends of the Colorado River!

HERE’S WHAT YOU NEED TO KNOW: WE ARE IN THE THICK OF THE FIGHT TO PROTECT THE COLORADO RIVER!

It may end up being one of the hottest, driest summers in Colorado River basin history as scorching temperatures are recorded from Denver all the way to Los Angeles. The river itself is under extreme stress with some of the “lowest flows in history” recorded in the Colorado River and its tributaries. But the dam builders are not slowing down, and so neither is Save The Colorado!

https://i1.wp.com/savethecolorado.org/wp-content/uploads/2018/07/Screenshot-525.png

We’ve had a flurry of news coverage over the last month about our fights to stop proposed new dams in Wyoming, Utah and Colorado. Further, as the Colorado River declines, the questions continue to increase about the viability of Lake Powell and Glen Canyon Dam.

First, Aspen Journalism wrote a story about our lawsuit to stop the proposed “Windy Gap Firming Project” in Colorado which would drain a new nine billion gallons of water directly out of the Colorado River every year. Titled, “Court Battle Continues Over Windy Gap Firming Project“, the story quotes me as saying, “We are just trying to inject some sanity and stop the madness,” said Gary Wockner, director of Save the Colorado, an environmental nonprofit based in Ft. Collins that supports the Colorado River and is the lead petitioner in the case. “The Colorado River is the most dammed, drained, depleted river on the planet.”

Second, Wyofile, a non-profit news agency in Wyoming, wrote two stories about our work in Wyoming to stop proposed new dams and diversions, including the “Fontenelle Dam Expansion” which would take over twenty-five billion gallons out of the Green River every year which is a tributary to the Colorado River. One story titled “As Water Shortages Loom, Wyoming Seeks Water-Bank Bill” quotes me here: “In Fort Collins, a group called Save the Colorado has vowed to fight every new diversion and impoundment in the basin. Gary Wockner, the group’s president, said all entities are in a gold rush. “Everybody’s trying to get while they can still get,” he told WyoFile.

https://i2.wp.com/savethecolorado.org/wp-content/uploads/2018/07/Screenshot-526-1.png

Another story in Wyofile about three projects in the Green River basin titled, “Conflict Looms As Wyoming Seeks More Green River Water“, quotes me here: “Gary Wockner, president of the Save the Colorado conservation group, wants no new dams or diversions in the basin. His group is watchdogging the rip-rap project and two other water-storage efforts in Wyoming — the proposed $80 million dam on the West Fork of Battle Creek and a plan to expand the Big Sandy Reservoir. “We weighed in publicly on all three,” Wockner said in a phone interview from Fort Collins, Colorado. “The Colorado River is already one of the most dammed and diverted rivers. Zero water reaches the sea.”

Third, the Boulder Weekly in Boulder, Colorado, is turning into one of the lead news agencies about the Colorado River chaos. Over the last month, they’ve run three important stories, two of which highlight Save The Colorado’s work.

One, a May 31st Boulder Weekly article titled “Draining The Bathtub: Critics claim Fontenelle project will harm Colorado River Basin” quotes me here, “The Fontenelle Dam riprap would allow them to drain the reservoir and their water rights would allow them to drain it twice per year,” says Gary Wockner, president of Save the Colorado. “We oppose them reengineering this dam so they can drain 150,000 acre-feet of water out of the Green River every year. And that’s what it would give them the opportunity to do.”

https://i0.wp.com/savethecolorado.org/wp-content/uploads/2018/07/Screenshot-527.png

Two, the front-page story on May 31st in the Boulder Weekly is an editorial taking direct, critical aim at the Walton Family Foundation (the WalMart heirs) and their funding of environmental groups, scientists, government agencies, and the media in the Colorado River basin. The long column is a good read for an insider’s view of what’s going on, and is titled: “The New Model For Saving The Colorado River Might Just Kill It“. Take a look at this story if you want a deep dive into some of the ‘dirty laundry’ of behind-the-scenes Colorado River motives and funding.

Three, on July 12, the Boulder Weekly printed another long front-page story titled “A Drop In The Bucket: Water Banking Pilot Program Finished, For Now” about the failed effort to save Lake Powell over the last three years. Save The Colorado is quoted heavily in the article because we’ve taken a lead voice in the fight to drain Lake Powell and tear down Glen Canyon Dam. I’m quoted here as saying, “This isn’t a temporary situation, this is ongoing and permanent,” Gary Wockner says. “They still haven’t even gotten remotely close to the root cause of the problem, which is climate change is real and every scientist indicates that it’s going to get worse and that Lake Powell is not sustainable.”

Wherever a proposal is moving forward to further dam, drain, divert, or deplete the river, Save The Colorado is in the face of the dam builders, in the media, in the courtroom, and in the state and federal agency’s eyes. We are an aggressive watchdog for the ecological health of the river — the proposed new dams and diversions must be stopped!

All of this work is made possible by your support! Thank you and stay tuned for more of the action!


Paddlesports Retailer Announces 2018 Paddlesports Industry Dinner

Paddlesports Retailer, the official North American tradeshow of the paddlesports industry, has selected the Renaissance Oklahoma City Convention Center Hotel as the venue for the 2018 Paddlesports Industry Dinner, featuring the first ever Paddling Magazine Product & Industry Awards. The inaugural event will take place Wednesday, August 29 and will honor the innovative products, important people and best practices making vital contributions to the paddlesports industry.

The Paddling Magazine Product & Industry Awards is presented by Rapid Media and will be emceed by Founder and Publisher Scott MacGregor and Director of Marketing Cristin Plaice. “Paddlesports Retailer is more than a sales event and so our Paddling Magazine Product & Industry Awards will recognize outstanding work and will applaud excellence in the innovation and design driving today’s paddlesports industry,” says MacGregor. “We are putting the very best of paddlesports on stage at the Renaissance in Oklahoma City so that we can showcase it around the world.”

The Paddlesports Industry Dinner on the final evening of Paddlesports Retailer will create the perfect gathering for the industry to honor its own. The evening is a grand celebration convening in one place near the end of the busy summer season. “The Paddlesports Industry Dinner is intended to bring together hundreds of retail buyers and manufacturer reps to exchange local knowledge and principles of best practices on a global stage,” adds Paddlesports Trade Coalition Board Member and Kokatat’s Sales Manager Jeff Turner.

Retailers as well as paddlesports and outdoor media will receive access to this year’s New Product Showcase where they can preview all new 2019 products and vote for the Paddling Magazine Product & Industry Awards. Registered retailer attendees will receive complimentary tickets for Wednesday’s dinner and awards ceremony.

The Paddlesports Industry Dinner and Paddling Magazine Product & Industry Awards provides Paddlesports Retailer an additional marquee event to complement its on water Demo Day. The 2018 Demo Day takes place in the heart of Oklahoma City’s Boathouse District, at the $45 million whitewater course and flatwater training center.

Paddlesports Retailer has already registered 30 percent more exhibitor space and three times as many retailers as the 2017 show had at the same time last year. The show is 90 percent sold out and expects to be fully booked by June 1st.


There may be a new dawn in river and stream access in Colorado or access may forever disappear.

In the west, Whiskey is for drinking and water is for fighting.

When I moved to Colorado several decades ago, the biggest shock, I received was learning or attempting to understand Colorado’s water laws. In the Midwest, where I’m from, water was a problem: we worked to get rid of. My property law professor was an expert in field pipes. Water Pipes were pipes put into the ground by the federal government to help drain water from the fields. Any issues were over ownership, control and maintenance of the pipes, not the water that came out of them.

Colorado Water Laws were developed when the only use of water was for drinking, (when no whiskey was around), irrigating crops and mining. Until the last decade, use of water for any other purpose was not only a civil issue subjecting you to a suit for the loss of the water, but possible criminal action for theft.

In 1979 the Colorado Supreme Court Decision People v. Emmert, 198 Colo. 137; 597 P.2d 1025; 1979 Colo. LEXIS 814; 6 A.L.R.4th 1016 was decided, which allowed people to float on the surface, but not touch the sides or the banks of a river. That decision created an uneasiness that has survived, mostly allowing whitewater rafting, kayaking and canoeing in many areas.

Even so, many landowners disagreed with the decision. That disagreement was based on owning both sides of the land or “touching” the bottom of the river. Landowners would build dams so that a kayaker had no choice but to “touch” the bottom to get around the dam. When you saw a dam, you usually saw a sheriff’s deputy at the takeout ready to issue you a ticket.

If a landowner owned both sides of the river another trick, you would see is fencing strung across the river, sometimes with railroad ties attached to prevent boaters from paddling down the river. Most boaters called them death traps because getting caught in one could kill a kayaker.

However, the worst was paddling down the river and hearing shots or looking to the bank and see someone pointing a gun at you. At least once a year I would receive a call from a kayaker who had been threatened at the end of a gun for floating on a river or creek. Generally, there was nothing you could do. The district attorneys did not like prosecuting paddlers for trespass, (after a lot of phone calls form a lot of CO attorneys). At the same time, it was more difficult for them to prosecute a voter for “defending” their property.

The city of Golden took a bold step and was able to convince the Colorado Supreme Court that water had a recreation purpose. That allowed Golden and a dozen other cities to put in kayak parks. Until that decision, the park could be built, but there might not be any water in the park to float a boat.

However, in the rule areas, fencing and guns still ruled. However, this may be coming to a head. In an article published February 3, Who owns the bottom of the river? Lawsuit pitting fisherman against landowner on the Arkansas River could answer the question
a fisherman has taken the issue to court. The article exams a lawsuit filed by a fisherman against a landowner. Read the article to get the facts straight, but generally the fisherman was tired of having rocks thrown at him and threatened by a gun when he enters the river at a public location, a river put in and walks downstream fishing.

The landowner may not own the water, but he owns the bottom of the river, or so he claims. (The landowner was prosecuted for shooting at the fisherman!)

The Utah Supreme Court looked at this same issue several years ago and concluded the state owned the bottom of the river. Utah Stream Access Coalition, v. Orange Street Development, 2017 UT 82; 852 Utah Adv. Rep. 69; 2017 Utah LEXIS 200. However, the legislature then passed a law overturning the decision. See Recreational Use of Public Water on Private Property. You can’t fish on a stream in Utah, but Utah believes you should be able to mine our National Parks and Monuments.

How will the Federal District Court, where this case has been filed, rule? I have no idea; I’m not a court watcher. I want them to rule that standing on a river bottom is not a reason to get shot. I want them to rule that putting your hands down to get over a manmade dam is not a reason to be arrested for trespass. I want them to rule that it is 2018 and tourism is the larger employer, largest generator of jobs and the basis for Colorado’s economy and shooting tourists and locals should not be allowed because they can’t walk on the water.

Go here to read the complaint filed in this case: Complaint

Do Something

Keep your finger’s crossed, not much else we can do except watch and wait for the decision.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

     

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

Mobile Site: http://m.recreation-law.com

© 2018 Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,


Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.

Defendant took plaintiffs on a guided personal watercraft tour with an employee/guide who had not been trained as required by Florida’s law.

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

State: Florida: United States District Court for the Southern District of Florida

Plaintiff: Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva

Defendant: Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff

Third Party Defendant(s): Jeffrey Wilkerson, Third-Party Defendant

Plaintiff Claims: Negligence Per Se

Defendant Defenses: : (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

Holding: For the Plaintiff

Year: 2007

Summary

If there is a statute that applies to your business or activity, you must know and abide by the statute. Failure to do so can void all of your defenses and in some cases the claim may not be covered by your insurance policy.

Here the defendant rented personal watercraft to the plaintiffs without instructing the guests as required by Florida Statute. By not abiding by the statute, the defendant’s defenses were void and the defendant’s liability was decided by the court.

Facts

The plaintiff’s, husband, wife and daughter paid for a guided personal watercraft (PWC or formerly known as jet ski) tour. During the tour, another tour participant panicked and drove his PWC at a high rated of speed into the plaintiff’s.

The plaintiff’s sued the defendant PWC tour company. The PWC tour company sued the participant who drove the PWC into the plaintiff’s as third-party plaintiffs versus third party defendants.

The defendants relied on four defenses:

(1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness;

(2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness;

(3) Florida statutory law does not apply; and

(4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

The plaintiff argued that because the defendant did not hire or require it’s guides to meet educational requirements required by state law, the defendant was negligent per se.

Negligence per se is negligence that violates a law or regulation which was created for the purpose of protecting a group of people that were injured by the plaintiff.

The Florida statutes in question were:

Florida Statute § 327.39

§ 327.39. Personal watercraft regulated.

(b) 1. It is unlawful for the owner of any leased, hired, or rented personal watercraft, or any person having charge over or control of a leased, hired, or rented personal watercraft, to authorize or knowingly permit the watercraft to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.

The second statute was Florida Statute § 327.54

§ 327.54. Liveries; safety regulations; penalty.

(1) A livery may not knowingly lease, hire, or rent a vessel to any person:

(e) When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:

1. Operational characteristics of the vessel to be rented.

2. Safe vessel operation and vessel right-of-way.

3. The responsibility of the vessel operator for the safe and proper operation of the vessel.

4. Local characteristics of the waterway where the vessel will be operated.

Any person delivering the information specified in this paragraph must have successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.

The first statute required the person renting a PWC to instruct the renter on the use of the PWC. The second statute identified the instructions to be given and required the person giving the instructions to have successfully completed a boater safety course. The defendant’s employee in this case had not given the necessary instructions and had not completed a boater safety course.

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

Federal judiciary has a rule they apply to these situations called the Pennsylvania Rule. The Pennsylvania Rule states:

…when a ship at the time of an collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.

Basically, the Pennsylvania rule shifts the burden of proof from the plaintiff, who normally has the burden to proof the defendant was at fault, to the defendant, requiring the defendant to prove, it was not at fault.

The next hurdle is the state law’s relationship to admiralty law. Admiralty law is a Federal law, in fact, a series of international laws, to control transportation of goods and people across borders and international travel. States can only make laws concerning admiralty issues if there is not federal law on the subject already. If the federal law conflicts with the state law, the federal law applies.

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident.

There is no federal law concerning the rental of PWCs. So, the two Florida statutes were available to the plaintiff. Additionally, the Florida statutes were created to protect a specific group of people, and the plaintiffs were part of the group to be protected.

These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

Side note: the defendant co-owner admitted he was not familiar with Florida’s statutes that were at issue. The court’s response was the classic you learn in law school, and you should learn in kindergarten. “…ignorance of the law is not a defense.”

The defendant argued that instruction would have changed the accident or prevented the accident. The court did not buy that argument.

However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

For the defendant not to be liable, the must be completely free of fault, and the violation of the Florida statute created fault on the part of the defendant; consequently, the defendant was not free of fault.

The defendant then argued the limitation of liability under admiralty law applied. The limitation of liability states the defendant is liable to the value of the vessel after the accident. Here the defendant argued the extent of their liability was $3,000 because that was what the PWC was worth.

For the defendant to use this defense, required a two-step test:

(1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.

Since the defendants could have easily investigated whether their employee had taken a boater safety course, and they did not, they could not take advantage of the limitation of liability because the defendant should have had knowledge of the unseaworthiness of the PWC.

The next defense argued was the release signed by the plaintiff. Here the release was void because it violated public policy. The statute created a safety requirement on the part of the defendant. The statute was enacted to keep the public safe. Therefore, failing to keep the public safe was a public policy issue.

[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.”

In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

The defendant’s motion for summary judgement was denied. The plaintiff had filed a motion for summary judgment as to the liability of the defendant. That motion was granted. The sole remaining issue then was the amount of the liability, how much the defendant owed the plaintiff.

So Now What?

Releases are the best defense to lawsuits in most states. However, the most effective legal argument to void a release is to claim the defendant was Negligence Per Se. Here the court found that because the statutes were created for public policy reasons, the release violated public policy and thus was void.

Most state courts just void the release stating the release cannot prevent claims based on violation of a statute.

More importantly, any time a statute is created that applies to your business or activity, you must understand and follow the statute. Both statutes argued above had criminal penalties for violation of the statutes. Not only was the defendant liable in a lawsuit for violating the statutes, the defendants could be fined by the state.

Don’t get into business without knowing the law.

More articles on Negligence Per Se

Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

    

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

© 2018 Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,