Ferrari v. Bob’s Canoe Rental, Inc., 2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)
Posted: January 6, 2015 Filed under: Assumption of the Risk, Legal Case, New York, Paddlesports, Release (pre-injury contract not to sue), Rivers and Waterways | Tags: Bob's Canoe Rental, Canoe, Canoe Livery, Canoeing, Inc., New York, Nissequogue River, Release, Tide Leave a commentFerrari v. Bob’s Canoe Rental, Inc., 2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)
[**1] Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually. Plaintiffs, – against – Bob’s Canoe Rental, Inc., Defendant. INDEX No. 09-6690
09-6690
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)
July 31, 2014, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: river, canoe, trip, low tide, summary judgment, stranded, deposition, tide, rented, canoeing, paddling, safe, launch, minutes, mile, issue of fact, nonparty, high tide, entitlement, newspaper, decedent, halfway, paddle, facie, launched, arrived, canoed, times, stuck, woman
COUNSEL: [*1] For Plaintiffs: ELOVICH & ADELL, ESQS., Long Beach, New York.
For Defendant: GORDON & SILBER, P.C., New York, New York.
JUDGES: PRESENT: Hon. DENISE F. MOLIA, Acting Justice of the Supreme Court.
OPINION BY: DENISE F. MOLIA
OPINION
ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that the motion by the defendant for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint is granted, and it is further
ORDERED that the motion by the defendant for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari is denied as academic.
This action was commenced to recover damages for personal injuries allegedly sustained by the plaintiff Kathleen Ferrari, and her husband, the decedent Dennis Ferrari, when they were exposed to the elements after becoming stranded at low tide while canoeing on the Nissequogue River in Suffolk County, New York. The Ferraris had rented the canoe used by them that day from the defendant. In the complaint, the Ferraris allege, among other things, that the defendant was negligent in permitting them to rent the canoe and launch so close in time to low [*2] tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.
[**2] The following facts involving this incident are undisputed. The Ferraris rented a canoe from the defendant on October 27, 2008, intending to make a one-way trip on the Nissequogue River from a launching site located in a park in Smithtown, New York to a park in Kings Park, New York. Both sites were used by the defendant in its business of renting canoes to the public. The defendant’s employee, Geoffrey Lawrence, met the Ferraris, both signed the defendant’s release of liability form, and Dennis Ferrari signed a written lease agreement for the canoe.
The defendant now moves for summary judgment on the grounds that the Ferraris assumed the risk of their activities and that the defendant did not breach a duty of care. In support of the motion, the defendant submits, among other things, the pleadings, the deposition transcripts of the parties, the deposition transcripts of three nonparty witnesses, and an affidavit from an expert. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, [*3] tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties’ competing interest must be viewed “in a light most favorable to the party opposing the motion” (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]).
At his deposition, Dennis Ferrari testified that he had canoed approximately 12 times when he was younger and a Boy Scout, and that, before this incident, he had canoed as an adult on the Nissequogue River two times. He indicated that his first trip took four to four and one-half hours to travel the length of the river, and that his second trip took five hours to complete. He stated that he rented canoes for those trips, that he “believes” they were rented from the defendant, and that the rental company “schedule[s] you around the tides.” Dennis Ferrari further testified that he called the defendant the day before this trip to rent a canoe, that he believes that he was told it would be high tide for his trip at either 9:00 or 10:00 a.m, and that he was aware that low tide was generally six hours [*4] after high tide. He stated that he himself checked the time of high tide in the local newspaper, and that he does so “every day, because I do a lot of fishing.” He indicated that, on the day of this incident, he awoke at 7:30 or 8:00 a.m. and had breakfast, that he packed a lunch with wine and vodka, that he left his home at 9:30 a.m. to travel to Smithtown to rent the canoe, and that no one from the defendant was there when he arrived at approximately 10:00 a.m. He declared that neither he or his wife had cell phones, that they waited approximately one hour and then contacted the defendant by pay phone, and that he was told to travel to the mouth of the river in Kings Park. Dennis Ferrari further testified that he arrived at Kings Park at 11:30 or 11:45 a.m., that “there was somebody waiting there,” and “by this time, I’m thinking that its getting a little late, and I asked him if it was going to be a problem.” He stated that the person then drove them back to Smithtown, that they arrived “probably close to 12:30,” and “I just asked if we had enough time to make it down river. He said, yeah, it won’t be a problem.” He indicated that he and his wife launched the canoe a little after [*5] 12:30, that both were paddling the canoe, and that they did not eat or drink anything before they “got stuck” at approximately 4:30 p.m. Dennis Ferrari further testified that, for the approximately four hours before they were stranded, he and his wife were paddling [**3] “leisurely, because the river … takes you,” and that he noticed the tide “going out fast” approximately 20 minutes before they got stuck in the mud. He indicated that he and his wife paddled “maybe a couple of hundred yards” in that last 20 minutes, that, “as the water started to go out,” he tried to paddle closer to the shore, and that they became stranded near the Smithtown Landing Country Club. He stated that the Country Club was approximately three or four miles from the launch site in Smithtown and more than halfway to Kings Park, that he did not have any difficulties with the canoe before he and his wife were stranded, and that, after they were stuck, he got out of the canoe to attempt to pull it to shore. He was unsuccessful and re-entered the canoe. He declared that the sun went down at approximately 5:00 or 5:30 p.m., and that he and his wife were not rescued for hours after they were stranded.
At her deposition, [*6] Kathleen Ferrari testified that she had never been canoeing before, that her husband told her that he had canoed on the Nissequogue River twice before, and that he rented a canoe and said that they had to be at Smithtown at either 9:00 or 10:00 a.m. on the day of this incident. She stated that they waited approximately 15 minutes for someone from the defendant to show up, that they called from a pay phone, and that they were told that they had to go to Kings Park. She indicated that they met the man in Kings Park at approximately 11:00 a.m., that her husband asked if they were getting out too late and if it was safe, that the man said that they were fine, and the man told them to leave their car so that he could drive them back to Smithtown. Kathleen Ferrari further testified that, because they were approximately 20 minutes away from Smithtown, her husband kept asking about the tides and told the man that “we’re not going to be actually going out until 11:30,” and that the man kept assuring him that it was safe. She stated that they launched from Smithtown at approximately 12:00 p.m., that they paddled at “quite a pace” because her husband was “concerned that we kept moving,” and that [*7] when her husband mentioned that tide was changing fast they were almost at the end of their trip. She indicated that she and her husband did not have any alcohol to drink until well after they were stranded and in order to combat the cold, and that it took hours before they were rescued.
Geoffrey Lawrence (Lawrence) was deposed on March 7, 2011, and testified that he was a seasonal full-time employee of the defendant in 2008, that he canoed the Nissequogue River daily that year, and that the length of the river from Smithtown to Kings Park is five and one-half miles. He stated that the defendant always launches its canoes from Smithtown, and that the average time to complete the trip to Kings Park at a moderate rate of paddling is two and one-half hours. He indicated that high tide was at approximately 10:30 a.m. on October 27, 2008, that low tide was at 4:30 p.m., and that the time for return of canoes was 4:30 p.m., as it is always at the time of low tide. Lawrence further testified that the Ferraris signed the releases and lease agreement in his truck at Kings Park, that he gave them general instructions, and that Dennis Ferrari said he was experienced, he had done this before, and [*8] he knew where he was going. He stated that he recalled Dennis Ferrari asking if they still had time to launch, and that, generally, the latest time that he would rent a canoe to someone, depending on the tide and time of sunset, would be 2:00 p.m. He indicated that he advised Dennis Ferrari that they could not be in later than 4:30 p.m. that day, that he did not know of any other incidents where someone was stranded on the river, and that he waited in Kings Park for the Ferraris after they launched. He declared that he became anxious when the Ferraris did not arrive at 4:30 p.m., that he went looking for them in his truck, and that he found them stranded near the Smithtown Landing Country Club.
[**4] Nonparty witness Ann Schumacher was deposed on September 3, 2010, and testified that she was employed by the Smithtown Fire Department as an EMT-B in 2008, that she was also a registered nurse, and that she had training in hypothermia and intoxication. She stated that she and her crew responded to an emergency call on October 27, 2008, that this was the first time she had been called to rescue someone stuck on the Nissequogue River, and that she completed a patient care record regarding Dennis [*9] Ferrari. She indicated that Dennis Ferrari did not appear intoxicated, that she did not smell alcohol on his breath, and that he was not slurring his speech.
At his deposition, nonparty witness Edward Springer (Springer) testified that he was employed by the Smithtown Fire Department as an EMT-Critical Care in 2008, that he responded to an emergency call on October 27, 2008, and that he completed a care record regarding Kathleen Ferrari that date. He indicated that he recorded her blood pressure as 80/60, that she was hypothermic, and that her pupils were normal. He stated that if she was intoxicated her pupils would be “different [than] normal,” and that he did not smell alcohol on her breath. Springer further testified that he has rented canoes on the Nissequogue River, that he was verbally told when high tide would be, and that he was aware that low tide is six hours later. He stated that “he believed” it took him three hours to complete a trip on the river, and that the Smithtown Landing Country Club is a little more than halfway to the end of the river.
Nonparty witness Greg Krockta (Krockta) was deposed on September 1, 2011, and testified that he was fishing on the Nissequogue [*10] River on the day of this incident, that he observed a man and a woman in a canoe, and that the woman was slumped over and looked “ill or something.” He stated that the man was paddling the canoe, that the woman was not paddling, and that the man was yelling at the woman to “get up and paddle.” He indicated that he did not know if the couple that he saw are “the same two people [involved in this lawsuit],” that he thinks that the two were the only “male and female combination” that he saw that day, and that he believes that he could identify the couple if shown photographs. Krockta further testified that he lives near the river less than one mile from the launching area, that he often fishes and boats on the river, and that it would take a novice approximately two hours to get from the Smithtown … launching area to the end of the river.”
In an affidavit dated December 8, 2011, the defendant’s expert witness, David Smith (Smith), swears that he is a retired commander with the United States Coast Guard and, among other things, a member of the National Safe Boating Council. He states that he has reviewed the complaint and bill of particulars, the depositions of the Ferraris, Lawrence [*11] and Krockta, and the tidal data for the Nissequogue River. He indicates that he inspected the river on June 14, 2011, when he paddled a canoe from the Smithtown launch site to the vicinity of the Smithtown Landing Country Club. Smith further swears that he chose the June date because the tidal times were substantially the same as on the date of this incident, that he was provided a 17-foot aluminum canoe, and that he took a companion but that “he was the sole paddler of the canoe at all times.” He states that he was 73 years old at the time, and that the combined weight of he and his companion was 426 pounds. He indicates that his review of the Ferraris depositions reveals that their combined weight was 302 pounds, and that Dennis Ferrari was 49 years old on the day of this incident. Smith further swears that he launched his canoe at 11:38 a.m., encountered a headwind of 5-10 miles per hour, and arrived at the Smithtown Landing Country Club at 1:03 p.m. having covered a distance of 3.2 miles in 1 hour and 25 minutes. He states that he estimates that he would have completed the 5 Vi miles from Smithtown to Kings Park in 2 hours and 26 minutes. Smith [**5] opines that, with a reasonable degree [*12] of boating and aquatic safety certainty, the Ferraris had “ample time to complete the course of the Nissequogue River well before the onset of low tide” on the date of this incident.
As a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein (see Morgan v State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 NYS2d 421 [1997]; Mendoza v Village of Greenport, 52 AD3d 788, 861 NYS2d 738 [2d Dept 2008]; Paone v County of Suffolk, 251 AD2d 563, 674 NYS2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Cotty v Town of Southampton, 64 AD3d 251, 880 NYS2d 656 [2d Dept 2009]; Rosenbaum v. Bayis Ne’Emon, Inc.., 32 AD3d 534, 820 NYS2d 326 [2d Dept 2006]). In addition, the plaintiff’s awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff (see Maddox v City of New York, 66 NY2d 270, 487 N.E.2d 553, 496 NYS2d 726 [1985]; Kremerov v. Forest View Nursing Home, Inc.., 24 AD3d 618, 808 NYS2d 329 [2d Dept 2000] Dept 2005]; Gahan v Mineola Union Free School Dist., 241 AD2d 439, 660 NYS2d 144 [2d Dept 1997]). If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 NYS2d 49 [1986]). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 NYS2d 499 [2d Dept 2006]; Lapinski v Hunter Mountain Ski Bowl, 306 AD2d 320, 760 NYS2d 549 [2d Dept 2003]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 NYS2d 663 [2d Dept 1992]).
Here, the defendant has established [*13] that Dennis Ferrari was an experienced canoeist, with experience regarding the tides on the Nissequogue River, and with knowledge about the risk involved in canoeing at low tide. Dennis Ferrari testified that he had specific knowledge that low tide would occur at approximately 4:30 p.m. that date, and he indicated that it was his experience that a trip on the river could take five hours. Nonetheless, he decided to launch the rented canoe as late as 12:30 p.m., and apparently urged his wife to paddle at “quite a pace” to ensure that they accounted for the tides. It is determined that getting stranded at low tide, whether in a river or on a sand bar near a beach, is an inherent risk in canoeing and arises out of the nature of the sport. Accordingly, the defendant has established its prima facie entitlement to summary judgment on the ground that the Ferraris assumed the risk of canoeing on the river.
In addition, it is undisputed that, prior to their commencing their trip on the river, the Ferraris signed a release of liability form which states, in part:
2. I KNOWINGLY AND FULLY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASES or others, [*14] and assume full responsibility for my participation; and
* * *
[**6] 4. I, for myself and on behalf of my heirs … HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS THE Bob’s Canoe Rental, Inc. … WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent of the law.
Exculpatory provisions in a contract, including a release or a covenant not to sue, are generally enforced although they are disfavored by the law and closely scrutinized by the courts (Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]). Thus, the language of the exculpatory agreement must express the intention of the parties in unequivocal terms in order to relieve a defendant from liability for negligence (Lago v Krollage, id.; Gross v Sweet, 49 NY2d 102, 400 N.E.2d 306, 424 NYS2d 365 [1979]). It must appear absolutely clear that the agreement extends to negligence or other fault of the party (Gross v Sweet, id., Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301, 189 N.E.2d 693, 239 NYS2d 337 [1963], Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 177 N.E.2d 925, 220 NYS2d 962 [1961]). “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear” (Gross v Sweet, supra). Here, the defendant has established its prima facie entitlement to summary [*15] judgment on the ground that the Ferraris are bound by the release of liability herein.
Having established its entitlement to summary judgment dismissing the complaint, it is incumbent upon the plaintiff to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill, supra). In opposition to the defendant’s motion, the plaintiff submits, among other things, four newspaper articles, the pleadings and bill of particulars, the deposition transcripts of the parties, and the affirmation of her attorney. The newspaper articles relied on by the plaintiff are plainly inadmissible and they have not been considered by the Court in making this determination (Young v Fleary, 226 AD2d 454, 640 NYS2d 593 [2nd Dept 1996] [newspaper articles submitted on summary judgment motion constitute inadmissible hearsay]; see also P & N Tiffany Props. Inc. v Maron, 16 AD3d 395, 790 NYS2d 396 [2d Dept 2005]; Platovsky v City of New York, 275 AD2d 699, 713 NYS2d 358 [2d Dept 2000]).
In his affirmation, counsel for the plaintiff contends that the defendant had a duty to warn the Ferraris that it was essential that they complete their trip on the river “well before the 4:30 low tide,” and that the Ferraris justifiably relied on the defendant’s material misrepresentation that it was safe to leave as late [*16] as they did that day. The affidavit of an attorney who has no personal knowledge of the facts is insufficient to raise an issue of fact on a motion for summary judgment (Sanabria v. Paduch, 61 AD3d 839, 876 NYS2d 874 [2d Dept 2009]; Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 826 NYS2d 152 [2d Dept 2006]; 9394, LLC v Farris, 10 AD3d 708, 782 NYS2d 281 [2d Dept 2004]; Deronde Prods., Inc. v. Steve Gen. Contr., Inc., 302 AD2d 989, 755 NYS2d 152 [4th Dept 2003]). The plaintiff has not submitted any evidence that individuals canoeing on the Nissequogue River must fully complete the trip “well before” low tide, or that the Ferraris could not have completed their trip on the river having left as late as 12:30. In addition, the plaintiff has not submitted any evidence why it took approximately four hours to traverse a little more than halfway on their trip, or to rebut the [**7] testimony of Lawrence and the nonparty witnesses, as well as the opinion of the defendant’s expert, that the entire trip takes three hours or less to complete, paddling at a moderate rate.
The plaintiff’s remaining contention sounds in negligent misrepresentation. In order to prevail on her claim, the plaintiff must establish that the defendant had a “duty to use reasonable care to impart correct information due to a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided [*17] (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 863 N.E.2d 585, 831 NYS2d 364 [2007]; MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 929 NYS2d 571 [1st Dept 2011]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 736 NYS2d 737 [3d Dept 2002]; see also Fresh Direct, LLC v Blue Martini Software, 7 AD3d 487, 776 NYS2d 301 [2d Dept 2004]; Grammer v. Turits, 271 AD2d 644, 706 NYS2d 453 [2d Dept 2000]). As noted above, the plaintiff has failed to submit any evidence that the information provided by Lawrence was incorrect or false. In addition, the testimony of Dennis Ferrari and Kathleen Ferrari establishes that they did not reasonably rely on Lawrence’s general statement that it was safe to leave as late as 12:30 p.m. that day. Dennis Ferrari testified as to his knowledge that low tide was at 4:30 p.m. that day, and that, according to him, the trip could take five hours. Kathleen Ferrari testified that her husband was concerned that they paddle at more than a moderate pace. Despite this, the plaintiff has failed to submit any evidence why they were only able to traverse a little more than halfway on their trip before becoming stranded, and how Lawrence’s general statements mislead them.
In addition, despite the fact that this is not a wrongful death case, counsel for the plaintiff also contends that the Ferraris are entitled to every inference that can reasonably be drawn from the evidence in determining whether a prima facie case of negligence is made as against the defendant (see Noseworthy v City of New York, 298 NY 76, 80, 80 NE2d 744 [1948]). Setting [*18] aside the issue whether the doctrine is applicable herein, even with the reduced burden of proof thereunder, the plaintiff is required to submit proof from which the defendant’s negligence may be inferred (see Sanchez-Santiago v Call-A-Head Corp., 95 AD3d 1292, 945 NYS2d 716 [2d Dept 2012]; Barbaruolo v DiFede, 73 AD3d 957, 900 NYS2d 671 [2d Dept 2010]; Martone v Shields, 71 AD3d 840, 899 NYS2d 249 [2d Dept 2010], and the plaintiff is not absolved from demonstrating the existence of a triable issue of fact to avoid summary judgment (Albinowski v Hoffman, 56 AD3d 401, 868 NYS2d 76 [2d Dept 2008]; Blanco v Oliveri, 304 AD2d 599, 600, 758 NYS2d 376 [2d Dept 2003]). In any event, the subject doctrine is not applicable under the circumstance herein as the defendant’s knowledge as to the cause of the decedent’s accident is no greater than that of the plaintiff (Knudsen v Mamaroneck Post No. 90, Dept. of N.Y. – Am. Legion, Inc., 94 AD3d 1058, 942 NYS2d 800 [2d Dept 2012]; Zalot v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Dept 2011]; Martone v Shields, supra; Kuravskaya v Samjo Realty Corp., 281 AD2d 518, 721 NYS2d 836 [2d Dept 2001]).
Finally, the plaintiff has not submitted any evidence to dispute the efficacy of the signed release of liability, and does not address the issue in her opposition to the defendant’s motion. New York Courts have held that the failure to address arguments proffered by a movant or appellant is equivalent to a concession of the issue (see McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 817 NYS2d 295 [2d Dept 2006]; Weldon v Rivera, 301 AD2d 934, 754 NYS2d 698 (3d Dept 2003]; Hajderlli v Wiljohn 59 LLC, 24 Misc3d 1242[A], 901 N.Y.S.2d 899, 2009 NY Slip Op 51849[U] [Sup Ct, Bronx County 2009]) [**8] . Accordingly, the defendant’s motion for summary judgment dismissing the complaint is granted. [*19]
The Court now turns to the defendant’s motion for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari. The computerized records maintained by the Court indicate that the parties entered into a stipulation to amend the caption to reflect Kathleen Ferrari’s appointment as the executrix of the estate of Dennis Ferrari. Said stipulation was so-ordered by the undersigned on October 17, 2013, and recorded with the Clerk of the Court on October 21, 2013. Accordingly, the defendant’s motion is denied as academic.
Dated: 7-31-14
/s/ Denise F. Molia
A.J.S.C.
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Posted: December 1, 2014 Filed under: Paddlesports | Tags: Dories, Grand Canyon Grand Canyon Dories, Martin Litton Leave a commentMartin Litton, the man who turned the Sierra Club around and saved the Grand Canyon Passes Away in his sleep yesterday.
gcimage
Thanks for everything you did.
Love the Dolores River? Remember when it flowed freely? Join this Organization and help Keep the Dolores alive!
Posted: November 7, 2014 Filed under: Colorado, Paddlesports, Whitewater Rafting | Tags: Dolores, Dolores River, Dolores River Boating Advocates, Dolores River Valley Plan, x, y, z Leave a comment
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Fort Collins Needs Your Help to Put Together a Downtown River Project and Kayak Park
Posted: October 7, 2014 Filed under: Paddlesports, Rivers and Waterways | Tags: #Poudre, Cache La Poudre River, Fort Collins, Fort Collins Colorado, Larimer County Colorado, River, x, y, z Leave a comment
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Commercial Summer Fatalities: 2014
Posted: July 30, 2014 Filed under: Mountaineering, Paddlesports | Tags: Chattooga River, Commercial, Commercial Raft Company, Mountaineering, Raft, Rafting, Rock climbing, Whitewater, Whitewater Rafting Leave a commentOur condolences to the families of the deceased.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
Whitewater fatalities are light blue
Medical fatalities are light red
This is up to date as of July 27, 2014
If this information is incorrect or incomplete please let me know. Thank You.
|
Date |
State |
Activity |
Where |
How |
Outfitter or Guide Service |
Sex |
Home |
Age |
Source |
Source |
|
5/28 |
AZ |
Whitewater Kayaking |
Colorado River, Grand Canyon, Badger Rapid |
Did not right his kayak |
|
M |
|
43 |
|
|
|
6/3 |
AZ |
Whitewater Rafting |
Colorado River, Grand Canyon |
Allergic reaction |
|
F |
Seattle, WA |
54 |
|
|
|
6/7 |
CO |
Whitewater Rafting |
Clear Creek |
Fell out of raft, possible respirator problems |
|
M |
Brighton, CO |
41 |
||
|
6/10 |
CO |
Whitewater Rafting |
Arkansas River, Salt Lick |
boat flipped or dump trucked |
Royal Gorge Rafting |
M |
Enid, OK |
48 |
||
|
6/14 |
CO |
Whitewater Rafting |
Arkansas River, Royal Gorge |
respiratory problems before he and five other rafters were tossed out |
|
M |
Colorado Springs, CO |
44 |
||
|
6/16 |
CO |
Whitewater Rafting |
Roaring Fork river |
Fell out of raft |
Blazing Adventures |
M |
Denver, CO |
44 |
|
|
|
6/27 |
ID |
Whitewater Rafting |
Salmon River, The Slide |
Ejected from raft |
Epley’s Whitewater Adventure |
M |
Poulsbo, WA |
50 |
||
|
7/15 |
WY |
Mountaineering |
Grand Teton |
Fell |
Jackson Hole Mountain Guides |
F |
Edmond, OK |
43 |
||
|
7/24 |
CO |
Whitewater Rafting |
Fell out of raft |
Timberline Tours |
F |
Dallas, TX |
57 |
Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Perfect example of a flaw in our system hiring a lifeguard increases your chance of a lawsuit in Florida; No lifeguard no liability.
Posted: July 23, 2014 Filed under: Florida, Risk Management, Rivers and Waterways | Tags: Florida, Lawsuit, Legal liability, liability, Lifeguard, Lifeguards, Newport Beach Fire Department, Ocean, Panama City, Recreation, Sea Leave a commentDon’t take this as a condemnation of the entire system unless you understand it
This article looks at a major hole created by lawsuits in our system. Once a city in Florida hires a lifeguard it accepts responsibility for the people swimming in the waters around the guard. If the guard does not act responsible, i.e. someone drowns, then the city can be sued.
However if no guard is there then there is no liability for the city.
Because it is impossible to prove that a lifeguard did their job right when a jury is looking at the loss of a loved one, hiring a lifeguard brings on lawsuits.
The solution is simple. It requires an acceptance of reality. People are going to drown no matter how many lifeguards maybe on the beach. Pass a law saying that cities are not liable unless the actions of the lifeguards are gross or wilful and wanton. Immunity for the city will put lifeguards on the beaches.
See Are lifeguards a liability? However be cognizant that some of the legal opinions are not from attorneys. The legal basis for those statements is suspect.
What do you think? Leave a comment.
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Copyright 2014 Recreation Law (720) 334-8529
Call or Email me if you need legal services around these issues.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Dolores River Boating Advocates needs some volunteers next week
Posted: July 19, 2014 Filed under: Rivers and Waterways | Tags: Boat, Colorado, Dolores, Dolores River, McPhee Reservoir, x, y, z Leave a comment
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Point 65 Sweden acquires Boblbee: A line of backpacks developed to protect your gear
Posted: July 17, 2014 Filed under: Paddlesports, Sea Kayaking | Tags: Boblbee, Canoes and Kayaks, Kayak, Northern Europe, Sweden, x, y, z Leave a comment
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Commercial Summer Fatalities: 2014
Posted: July 9, 2014 Filed under: Arizona, Colorado, Idaho, Paddlesports, Whitewater Rafting | Tags: Chattooga River, Colorado, Commercial, Commercial Guide Service, Commercial Raft Company, Mountaineering, Rafting, Rock climbing, Whitewater, Whitewater Rafting Leave a commentOur condolences to the families of the deceased.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
Whitewater fatalities are light blue
Medical fatalities are light red
This is up to date as of July 1, 2014
If this information is incorrect or incomplete please let me know. Thank You.
|
Date |
State |
Activity |
Where |
How |
Outfitter or Guide Service |
Sex |
Home |
Age |
Source |
Source |
|
5/28 |
AZ |
Whitewater Kayaking |
Colorado River, Grand Canyon, Badger Rapid |
Did not right his kayak |
|
M |
|
43 |
|
|
|
6/3 |
AZ |
Whitewater Rafting |
Colorado River, Grand Canyon |
Allergic reaction |
|
F |
Seattle, WA |
54 |
|
|
|
6/7 |
CO |
Whitewater Rafting |
Clear Creek |
Fell out of raft, possible respirator problems |
|
M |
Brighton, CO |
41 |
||
|
6/10 |
CO |
Whitewater Rafting |
Arkansas River, Salt Lick |
boat flipped or dump trucked |
Royal Gorge Rafting |
M |
Enid, OK |
48 |
||
|
6/14 |
CO |
Whitewater Rafting |
Arkansas River, Royal Gorge |
respiratory problems before he and five other rafters were tossed out |
|
M |
Colorado Springs, CO |
44 |
||
|
6/16 |
CO |
Whitewater Rafting |
Roaring Fork river |
Fell out of raft |
Blazing Adventures |
M |
Denver, CO |
44 |
|
|
|
6/27 |
ID |
Whitewater Rafting |
Salmon River, The Slide |
Ejected from raft |
Epley’s Whitewater Adventure |
M |
Poulsbo, WA |
50 |
Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.
If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR. Court finds (or confuses) both no duty owed to prove negligence and assumption of the risk on the part of the deceased.
Posted: June 16, 2014 Filed under: Assumption of the Risk, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, drowning, Limited liability company, Livery, Louisiana, Tubing Leave a commentLouisiana is one state that does not allow the use of a release. (See States that do not Support the Use of a Release.) This limits the possible defenses in LA.
Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Date of the Decision: March 23, 2012
Plaintiff: Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children
Defendant: Tiki Tubing, LLC and Abc Insurance Company
Plaintiff Claims: negligence, gross negligence, duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. Also failure of the employees of the defendant to perform CPR properly.
Defendant Defenses:
Holding: for the defendant tubing livery
The plaintiff is the husband of the deceased and mother of their children.
The defendant was a tubing rental (livery) operation on the Amite River in Louisiana. For the fee the defendant provides parking, a bus ride to the put in, tubes and a beach entry and exit. The Amite River is advertised by the defendant on it’s website at 1” to 3” deep with 6”-8” holes. The river is slow moving and smooth.
The defendant also states “Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The defendant provides life jackets free of charge however customers are not required to wear them. No one was aware of a prior drowning on the river. No employees of the defendant were trained in life saving or first aid or CPR.
The deceased was accompanied by two other companions. One of the three printed the other names on the release. The deceased did not sign the release. The three were also given safety instructions.
The men started leaving their tubes and swimming downstream for a short distance before waiting for the current to bring their tube to them. At some point the deceased went under the surface and did not come up. Eventually an employee found the deceased and got him to the surface.
A companion started CPR and was assisted by four other people including some employees of the defendant.
The plaintiff filed suit which was dismissed after the defendant filed a motion for summary judgment. The plaintiff appealed.
Summary of the case
The court outlined the plaintiff’s claims as:
Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River.
The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
Under Louisiana law a tort is defined as:
The elements of a cause of action in tort are fault, causation, and damage. The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law.
The court found that to prove her case the plaintiff must prove:
(1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise.
Failure to prove one element defeats the plaintiff’s claims.
The court first looked at whether or not the defendant had control over the river to be liable for it. The court defines this as the defendant having custody and control over the river. To determine whether the defendant had the requisite custody and control the court held it had to consider:
(1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” This court has held that a state-owned river cannot be in the custody of a landowner.
Even if the plaintiff could prove the defendant’s “custody” of the river, the plaintiff would also have to prove that the river section at issue was defective.
This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective. Further, “variations in water depth within natural swimming areas are standard.” Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
The conditions of the river at the time of the decedents drowning were all conditions that under Louisiana law were inherent risks and thus assumed by the deceased.
The court next looked the risks of tubing.
Tubing has been defined as an activity that is obviously and inherently dangerous. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. When a risk is obvious, there is no duty to warn or protect against it.
The court concluded the deceased voluntarily left this tube to swim in the river without a life jacket.
The court then looked at the issue of failure to perform CPR properly. Under Louisiana law if a person voluntarily undertakes a “task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner.”
Although the plaintiff’s expert witness stated that CPR was performed improperly, no one was able to claim that the actions of the defendant employees were “unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.”
The court found since no one could point that a specific employee or employees had done something wrong in performing CPR then that claim must also fail.
The court upheld the trial courts motion for summary judgment with this statement.” Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death.”
So Now What?
Louisiana law came from the Napoleonic code. Consequently the laws in Louisiana are generally different, other than the protections afforded by the US constitution. Louisiana does not allow the use of a release to stop claims.
C.C. Art. 2004 (2005)
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
See States that do not Support the Use of a Release.
Here the court seemed to combine the issue to find the defendant owed no duty to the deceased and the deceased assumed the risk of the activity which lead to his death, without using the terms specifically.
What do you think? Leave a comment.
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Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Posted: June 8, 2014 Filed under: Assumption of the Risk, Legal Case, Louisiana, Rivers and Waterways | Tags: Amite River, assumption of the risk, CPR, Custody and Control, Defendant, drowning, Livery, Louisiana, Tiki, Tiki bar, Tubing Leave a commentParveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children Versus Tiki Tubing, LLC and Abc Insurance Company
NO. 2011 CA 1477
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
March 23, 2012, Judgment Rendered
NOTICE: NOT DESIGNATED FOR PUBLICATION.
PLEASE CONSULT THE LOUISIANA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Writ denied by Parveen v. Tiki Tubing, LLC, 90 So. 3d 1063, 2012 La. LEXIS 1798 (La., June 15, 2012)
PRIOR HISTORY: [*1]
On Appeal from the 21st Judicial District Court, in and for the Parish of Livingston, State of Louisiana. District Court No. 128,216. The Honorable Elizabeth P. Wolfe, Judge Presiding.
DISPOSITION: AFFIRMED.
COUNSEL: Nicholas M. Graphia, Monroe, La., Counsel for Plaintiff/Appellant, Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children.
C. David Vasser, Jr., Baton Rouge, La., Counsel for Defendant/Appellee, Tiki Tubing, L.L.C.
JUDGES: BEFORE: CARTER, C.J., PARRO AND HIGGINBOTHAM, JJ.
OPINION BY: CARTER
OPINION
[Pg 2] CARTER, C.J.
The plaintiff appeals the summary judgment dismissing her suit for damages arising from the drowning death of her husband. For the reasons that follow, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Tiki Tubing, L.L.C. (Tiki) is a commercial enterprise located on the banks of the Amite River. During peak summer months, Tiki employs 10-15 full time employees. For a fee, Tiki provides customers with parking, tube rental, a bus ride upstream, and a beach entry and exit on the river. The tubing route on the Amite River takes approximately four hours to complete. The Tiki website describes the Amite River as “smooth and slow moving and … 1 to 3 feet deep with a few deeper holes from [*2] 6 to 8 feet deep.” The website continues: “All bodies of water have some inherent risks. Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The tubers are grouped together at the Tiki hut and bused upstream to the ingress point on the river. At this point, the tubers select their tubes and enter the water.
According to John Fore, the managing member of Tiki, there are no warning signs posted at the hut or along the river. Tiki provides life jackets free of charge to customers; however, customers are not required to wear them. Neither Fore nor the Tiki employees were aware of any prior drowning on the tubing route. There are no lifeguards or rescuers on staff, and employees are not trained in water safety or in cardiopulmonary resuscitation (CPR). Tiki employees do not travel the river with the tubers, and there is no emergency equipment along the river route or at the Tiki [Pg 3] facility. Tiki does hire off-duty Livingston Parish Deputies as independent contractors to assist with crowd control, public drinking, drugs, broken glass, and unlocking of cars. The deputies are not posted on the tubing route; they are not hired to handle medical [*3] emergencies.
On June 21, 2009, 37-year-old Mansoor Raja and two of his friends decided to tube the Amite River. Raja had never tubed before, and after reading about Tiki from its internet website, Raja, Akhlaq Akhtar, and Tariq Mehmood drove to the facility. The group was presented with a liability waiver at the hut, and Akhtar printed all three men’s names on the bottom of the sheet.1 Although Raja was with Akhtar when Akhtar completed the form, Raja did not read or sign the waiver. Akhtar remembered the men being given a document containing safety instructions and that this information also was posted on a board. According to Akhtar, all three men read the instructions, which specifically mentioned the availability of life jackets. Akhtar asked the other men if they needed life jackets, but the general consensus was that the water would not be deep enough and that the life jackets were not needed. The waiver sheet is the only “warning” at the Tiki facility.
1 The waiver is entitled “Participant’s Agreement, Release, and Assumption of Risk.” The bottom of the form has multiple lines upon which customers write their names.
The three men boarded the bus, rode upstream, retrieved their tubes, [*4] and entered the river. According to Akhtar, Raja and Mehmood were playing around and getting caught in trees in the water. Akhtar tried to rush the other two men along so that they would not get separated from the group. The water was shallow, and Raja and Mehmood were leaving their tubes and [Pg 4] swimming freely in the river. The three men continued in this fashion for 15 to 20 minutes.
On the river trip, Raja was “getting excited.” He would leave his tube, swim downstream with the current, then wait for his tube to float to him. Raja did this four or five times. The men stopped to take a photograph, after which Raja said he would swim just one more length. Suddenly, while swimming ahead of his tube, Raja disappeared under the water. Then, Mehmood began having trouble in the water. Akhtar floated toward his friends and was able to help Mehmood get hold of the tube and out of the water. Raja, however, panicked and was unable to grasp the tube. According to Akhtar, the water was “too far deep” and moving much faster underneath the surface. Akhtar did not leave his tube in an attempt to pull Raja from the water because, according to Akhtar, the water was too deep and the current would [*5] have pulled him under too. Akhtar explained: “If you go to somebody who’s drowning, he’ll take you with him even if you are [a] good swimmer….”
Other floaters, noticing the commotion, began calling for help; the authorities were alerted with a call to 911, and another tuber ran toward the ingress point where several employees were working to notify them that someone was “lost.” Christopher Seese, a teenage employee of Tiki, stated that he first thought someone had simply gotten off his tube and run off. Upon realizing there was a problem, three employees ran to the scene. Fifteen to twenty tubers were sitting on the beach, and several tubers were swimming around in the deeper area of the river. The employees immediately entered the river. It took Christopher five to ten minutes to [Pg 5] locate Raja in the eight-foot-deep pocket in the river by dragging his foot in the water. Raja’s body was resting against a submerged log. According to Christopher, the current in the pocket was no stronger than the rest of the river; however, the water was deeper. It was estimated that it took an additional three to four minutes to get Raja out of the water and onto the shore.
Raja was brought to [*6] the shore, and another tuber was the first to attempt CPR. Because he was on the opposite side of the river, Akhtar estimated that it took him ten minutes to get to Raja after he was pulled from the water. Upon reaching shore, Akhtar observed that the unidentified tuber was performing CPR incorrectly, so Akhtar took over.2 Akhtar blew air into Raja’s chest, and Tiki employee Jacob Bourgeois assisted with chest compressions. Ultimately, four different people performed chest compressions on Raja, assisting Akhtar with CPR until the rescue helicopter arrived. According to Akhtar, Raja’s pulse was restored and he was warm to the touch prior to the arrival of paramedics and being airlifted to a hospital. Raja’s death certificate indicates he died the next day, June 22, 2009.
2 Akhtar explained that he had received training in CPR during military service.
Raja’s surviving spouse, Neelam Parveen, filed this wrongful death and survival action for damages against Tiki and its insurer, alleging Tiki’s negligent acts and omissions were a proximate cause of Raja’s death. After answering the petition, Tiki filed a motion for summary judgment, alleging Tiki did not breach any legal duty to Raja. Subsequent [*7] to the filing of Tiki’s motion for summary judgment, but prior to the hearing on the motion, the trial court granted the plaintiff leave to file a supplemental and amending [Pg 6] petition for damages. Therein the plaintiff alleged that she was entitled to punitive damages under general maritime law in that Tiki’s conduct was grossly negligent, reckless, and wanton. Thereafter, the plaintiff filed an opposition to Tiki’s motion for summary judgment, with attachments thereto, as well as a supplemental opposition.
Following a hearing, the trial court granted Tiki’s motion for summary judgment, and the plaintiff’s claims against Tiki were dismissed with prejudice. The plaintiff appeals, asserting several arguments in support of her position that summary judgment was improperly granted.
SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions [*8] on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966B. Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Proc. Ann. art. 966A(2).
Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. All Crane, 47 So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Proc. Ann. art. 966C(2) [Pg 7]. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Id. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary [*9] burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966C(2); All Crane, 47 So. 3d at 1027.
In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter but, instead, to determine whether there is a genuine issue of triable fact. All Crane, 47 So. 3d at 1027. A court cannot make credibility decisions on a motion for summary judgment. Id. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.
[Pg 8] DISCUSSION
The plaintiff advances several theories of recovery for the alleged negligence or gross negligence of Tiki. [*10] Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
The elements of a cause of action in tort are fault, causation, and damage. Seals v. Morris, 410 So. 2d 715, 718 (La. 1981). The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Id. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La. App. 1 Cir. 5/9/03), 849 So. 2d 622, 627, writ denied, 03-1579 (La. 10/3/03), 855 So. 2d 315. The inquiry is whether the plaintiff [*11] has any law–statutory, jurisprudential, or arising from general principles of fault– to support her claim. Faucheaux v. Terrebonne Consol. Government, 615 So. 2d 289, 292 (La. 1993); Fredericks v. Daiquiris & Creams of Mandeville, L.L.C, 04-0567 (La. App. 1 Cir. 3/24/05), 906 So. 2d 636, 639, writ denied, 05-1047 (La. 6/17/05), 904 So. 2d 706.
[Pg 9] Under Louisiana Civil Code article 2317, “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Louisiana Civil Code article 2317.1 modifies Article 2317 and provides in pertinent part:
[The] custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
The plaintiff alleges that in accordance with Article 2317.1, Tiki, as custodian3 of the tubing route on the Amite River, owed a duty to its patrons [*12] to employ safety measures to prevent drowning and to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. In order to prevail on a claim of negligence under Articles 2317 and 2317.1, the plaintiff will have the ultimate burden at trial of proving by a preponderance of the evidence each of the following elements: (1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise. See Riggs v. Opelousas General Hosp. Trust Authority, 08-591 (La. App. 3 Cir. 11/5/08), 997 So. 2d 814, 817. Failure to prove any one of these elements will defeat the [Pg 10] plaintiff’s claim and thus establish the defendant’s entitlement to summary judgment. See Grogan v. Women’s and Children’s Hospital, Inc., 07-1297 (La. App. 3 Cir. 4/16/08), 981 So. 2d 162, 165.
3 There are no allegations or evidence [*13] suggesting that Tiki owned the area of the river, or the land abutting that portion of the river, in which Raja drowned.
The Louisiana Supreme Court has instructed that determining who has custody of a thing is a fact-driven determination. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So. 2d 1002, 1009. Courts should consider: (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. Dupree, 765 So. 2d at 1009. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” Id. at 1009. This court has held that a state-owned river cannot be in the custody of a landowner. See Tobey v. State, 454 So. 2d 144, 145 (La. App. 1st Cir. 1984) (a tubing accident did not result from any condition of the land).
Even if the plaintiff were to establish that material issues of fact remain in dispute regarding custody of the tubing route on the Amite River, the plaintiff also must prove that the portion of the Amite River at issue suffered from a vice or defect in order to recover damages under Articles 2317 [*14] and 2317.1. A defect is defined as a condition that creates an unreasonable risk of harm. Moory v. Allstate Ins. Co., 04-0319 (La. App. 1 Cir. 2/11/05), 906 So. 2d 474, 480, writ denied, 05-0668 (La. 4/29/05), 901 So. 2d 1076. The record establishes that Raja drowned in an area of the river described as a drop or a deep pocket. This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective [Pg 11] condition.”4 Johnson v. City of Morgan City, 99-2968 (La. App. 1 Cir. 12/22/00), 787 So. 2d 326, 330-31, writ denied, 01-0134 (La. 3/16/01), 787 So. 2d 315. Further, “variations in water depth within natural swimming areas are standard.” Johnson, 787 So. 2d at 330. Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. Sevin v. Parish of Plaquemines, 04-1439 (La. App. 4 Cir. 4/27/05), 901 So. 2d 619, 623-24, writ denied, 05-1790 (La. 1/27/06), 922 So. 2d 550. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
4 Moreover, [*15] not every defect gives rise to statutory liability under Articles 2317 and 2317.1. Ruschel v. St. Amant, 11-78 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1149, 1153. The defect must be of such a nature as to constitute a dangerous condition that reasonably would be expected to cause injury to a prudent person using ordinary care under the circumstances. Ruschel, 66 So. 3d at 1153.
The plaintiff argues that Tiki had a duty to provide an adequate and correct warning to customers regarding the dangers of tubing and the depth and current of the Amite River, and also had a duty to post lifeguards along the tubing route.5 Tubing has been defined as an activity that is obviously and inherently dangerous. See Tobey, 454 So. 2d at 146. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. See Hall v. Lemieux, 378 So. 2d 130, 132 (La. App. 4th Cir. 1979), [Pg 12] writ denied, 381 So. 2d 1220 (La. 1980). When a risk is obvious, there is no duty to warn or protect against it. Moory, 906 So. 2d at 478. Akhtar described Raja as “not a good swimmer.”6 Despite his limited swimming abilities and knowing that the water was over his head in parts, Raja voluntarily [*16] left his tube to swim freely in the river without a life jacket, allowing the current to carry him away from his tube.
5 Louisiana’s general negligence liability provision is found in Louisiana Civil Code article 2315. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under Article 2315. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So. 2d 270, 275. In order for liability to attach under a duty-risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault, 816 So. 2d at 275-76.
6 During the few times that Akhtar and Raja swam together in a pool, Raja would swim one pool length at a time, keeping [*17] his head out of the water the entire time. Raja would go in water over his head; however, he would hold onto a “pipe.”
Finally, citing to Harris v. Pizza Hut of La., Inc., 455 So. 2d 1364 (La. 1984), the plaintiff argues that Tiki assumed a duty when its employees attempted life-saving measures on Raja and then breached that duty by improperly performing CPR on Raja. In Harris, the supreme court held that a restaurant had a duty, once it hired a security guard, to have that guard protect patrons from the criminal activities of third persons in a reasonable and prudent manner. Id. at 1369. This court has recognized that the negligent breach of an assumed duty may create civil liability. McGowan v. Victory and Power Ministries, 99-0235 (La. App. 1 Cir. 3/31/00), 757 So. 2d 912, 914. If a person voluntarily or gratuitously undertakes a task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner. McGowan, 757 So. 2d at 914; see La. Civ. Code Ann. art. 2315.
Tiki employees acknowledged having no formal CPR training. Akhtar stated that he had been trained in CPR, and Akhtar was performing breathing assistance on Raja, while several [*18] others–including Tiki employees–assisted with chest compressions on Raja. The affidavit of the [Pg 13] plaintiff’s expert, Dr. Adam Broussard, set forth the CPR guidelines and concluded that, based on Jacob’s deposition, “the responders did not correctly perform CPR.” Dr. Broussard’s affidavit establishes that early CPR “performed correctly is the single most important intervention that can be performed in the field by a lay person.”
Raja was pulled from the water after being submerged for at least ten minutes. Akhtar stated that when Raja was brought up to the surface, he was not moving and not conscious. Akhtar began breathing into Raja with the assistance of four others, who took turns doing chest compressions. Akhtar observed that after the second person’s turn with chest compressions, Raja was warm to the touch and a pulse was discernible. Although Dr. Broussard’s affidavit establishes that CPR was performed improperly, his affidavit does not establish that the efforts of Tiki employees were unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.
CONCLUSION
The [*19] plaintiff failed to produce factual evidence sufficient to establish that she would be able to meet her burden at trial of proving by a preponderance of the evidence all of the elements of a cause of action in negligence or gross negligence. Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death. See Sevin, 901 So. 2d at 624. For the above-stated reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, Tiki [Pg 14] Tubing, L.L.C, dismissing the suit filed against it by Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children. Costs of this appeal are assessed to the plaintiff, Neelam Parveen.
AFFIRMED.
WordPress Tags: Tiki,Unpub,LEXIS,Neelam,Behalf,Mansoor,Raja,Minor,Children,Versus,Insurance,Company,COURT,APPEAL,LOUISIANA,CIRCUIT,March,Judgment,NOTICE,PUBLICATION,CONSULT,RULES,APPELLATE,PROCEDURE,CITATION,OPINIONS,SUBSEQUENT,HISTORY,Writ,June,PRIOR,Judicial,District,Parish,Livingston,State,Honorable,Elizabeth,Wolfe,Judge,DISPOSITION,COUNSEL,Nicholas,Graphia,Monroe,Plaintiff,Appellant,David,Vasser,Baton,Rouge,Defendant,Appellee,JUDGES,CARTER,PARRO,HIGGINBOTHAM,OPINION,death,husband,STATEMENT,FACTS,PROCEDURAL,enterprise,Amite,River,employees,customers,tube,rental,beach,hours,feet,injury,tubers,tubes,John,member,life,jackets,Neither,lifeguards,rescuers,resuscitation,equipment,Deputies,contractors,drugs,cars,emergencies,Akhlaq,Akhtar,Tariq,Mehmood,waiver,sheet,Although,instructions,information,consensus,Participant,Agreement,Release,Assumption,Risk,trees,length,swimmer,commotion,tuber,Christopher,Seese,employee,Upon,area,foot,chest,Jacob,Bourgeois,compressions,helicopter,arrival,hospital,certificate,spouse,survival,action,insurer,omissions,Therein,Thereafter,opposition,attachments,arguments,SUMMARY,device,fact,Crane,Georgia,Vincent,admissions,affidavits,Code,Proc,determination,criteria,Instead,absence,role,truth,decisions,Factual,inferences,opponent,Whether,purposes,Richard,Hall,DISCUSSION,theories,recovery,negligence,custody,patrons,guests,vices,procedures,tort,causation,Seals,Morris,existence,prerequisites,Bowman,East,Faucheaux,Terrebonne,Consol,Government,Fredericks,Daiquiris,Creams,Mandeville,Under,Civil,article,custodian,vice,accordance,Articles,preponderance,Riggs,Opelousas,General,Hosp,Trust,Failure,entitlement,Grogan,Women,allegations,Supreme,Dupree,Orleans,Courts,person,relationship,direction,landowner,Tobey,accident,Moory,Allstate,depth,Johnson,Morgan,Further,variations,areas,Fourth,distinction,Sevin,Plaquemines,Moreover,Ruschel,Amant,dangers,currents,swimmers,Lemieux,Despite,abilities,jacket,provision,analysis,Pinsonneault,Merchants,Farmers,Bank,injuries,scope,protection,Harris,Pizza,restaurant,manner,McGowan,Victory,Power,Ministries,task,assistance,affidavit,Adam,Broussard,guidelines,intervention,efforts,CONCLUSION,Costs,upstream,four,website,three,five
Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Posted: May 26, 2014 Filed under: Legal Case, Paddlesports, Pennsylvania, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: Ohiopyle, Ohiopyle Pennsylvania, Ohiopyle State Park, Ohiopyle Trading Post, Raft Rental, Rafting, Release, Whitewater Rafting, Youghiogheny River Leave a commentWroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Cari J. Wroblewski, Plaintiff, v. Ohiopyle Trading Post, Inc., Defendant.
Civil Action No. 12-0780
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
2013 U.S. Dist. LEXIS 119206
August 22, 2013, Decided
August 22, 2013, Filed
COUNSEL: [*1] For CARI J. WROBLEWSKI, Plaintiff: Emmanuel J. Argentieri, LEAD ATTORNEY, Parker McCay, Mount Laurel, NJ; Gary F. Piserchia, PRO HAC VICE, Parker McCay P.A., Mt. Laurel, NJ.
For OHIOPYLE TRADING POST, INC., Defendant: P. Brennan Hart, LEAD ATTORNEY, Jeanette H. Ho, Pietragallo, Bosick & Gordon, Pittsburgh, PA; John R. Brumberg, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA.
JUDGES: Mark R. Hornak, United States District Judge.
OPINION BY: Mark R. Hornak
OPINION
Mark R. Hornak, United States District Judge
Cari Wroblewski brings suit against Ohiopyle Trading Post, Inc. (“Ohiopyle”) alleging that she suffered injuries to her knee as a result of Defendant’s negligence and gross negligence when she was thrown from her raft during a white water rafting trip. Ohiopyle argues that it is entitled to summary judgment because (1) Plaintiff signed a Rental Agreement which contained a provision releasing Defendant from liability (“Release”) for the very claims made in this matter and (2) Defendant did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting. These matters, having been fully briefed by the parties and oral [*2] argument having been presented, are ripe for disposition. For the reasons which follow, Ohiopyle’s Motion for Summary Judgment is granted.
I. Background
Cari Wroblewski was 37 years old at the time of the incident that forms the basis of this lawsuit. Wroblewski Dep. 7:4-5. She holds an associate’s degree in business as well as a bachelor’s degree in accounting. Id. at 8:18-9:19. In April 2010, two months prior to the trip at issue in this case, Plaintiff went white water rafting on the Salt River in Arizona where she signed a rental agreement with a release and was informed that white water rafting could be dangerous and that she could fall out of the raft. Id. 16:21-17:7; 20:14-21:9.
One of Plaintiff’s friends, Steve Rose, made arrangements to rent equipment from Ohiopyle for a rafting trip on the Youghiogheny River with a group of their friends on June 11, 2010. ECF No. 21 ¶ 2; ECF No. 25 ¶ 2. Joel Means, one of the owners of Ohiopyle, testified in his deposition that the lower section of the Youghiogheny River is considered “the intermediate white water section of the River” and consists of Class I through Class III rapids with borderline Class IV at certain levels. Means Dep. 14:8-15:1. [*3] Plaintiff had been told, not by an Ohiopyle employee but most likely by one of her friends in the group, that the rapids on the river would be mild, level two and three rapids. Wroblewski Dep. 37:6-23. 1
1 “Q: What made you think before then that the rapids were levels two or three?
A: From what I had been told they were supposed to be rather mild rapids.
Q: Who told you that they were rather mild rapids?
A: I don’t recall.
Q: It wasn’t anyone from Ohiopyle Trading Post; was it?
A: No
Q: Was it one of the people in your group that went white water rafting that day?
A: Most likely.” Wroblewski Dep. 37:6-23.
On the morning of June 11, 2010, Means noticed that the river was “up and brown” from rain the night before, and that the water level had risen from 2.5 to 3.98 feet. Means Dep. 19:2-11. When the river’s water level reaches four (4) feet, rafters are required by state regulations to have an experienced guide accompany them on their rafting trip. 2 Id. 60:3-6. Ohiopyle is permitted to provide guided white water rafting tours when the level of the river is between four (4) and ten (10) feet. ECF No. 31. Means testified that the river level being of above average flow could make the rafting trip [*4] more difficult, but that the river is more dangerous at low levels than at high levels. Means Dep. 47:18-22.
2 At oral argument, Plaintiff’s counsel persistently argued not that the river level actually was four (4) feet at the time at issue, but that the Court should treat it as if it were. The Court knows of no record basis to do so.
Plaintiff and her friends traveled to the Youghiogheny River for the white water rafting trip on the morning of June 11, 2010. ECF No. 21 ¶ 1; ECF No. 25 ¶ 1. Upon arriving at the River, Plaintiff went to the bathroom for “quite a while” while the rest of her group started to get their rented equipment. ECF No. 25 at 2, ¶ 1; Wroblewski Dep. 31:8-19. Means informed the rest of Plaintiff’s group that the level of the river was above average flow that day and therefore the river that day was a “real white water river” and not a “float trip.” Means Dep. 16:16-17. Means told Steve Rose that if he and the others in the group no longer wished to rent equipment, Ohiopyle would provide the group with a guided whitewater rafting tour at a discounted rate of $40 per person rather than the usual price of $60 per person (a non-guided rafting trip costs about $20 per [*5] person). Id. 38:9-14; 46:21-47:8. Plaintiffs group declined the offer of a discounted guided rafting trip. Means also instructed his employees that day to “make sure [the group understood] what game they’re about to play,” in reference to the river. Id. 39:11-15. Presumably because she was in the bathroom, Plaintiff never heard from Means his advice as to the conditions of the river or offer of a guided tour. Wroblewski Dep. 32:2-12.
When Plaintiff was finished in the bathroom, she went to get her equipment from Ohiopyle and was “in a rush” because her friends had gotten a head start. ECF No. 25 at 2, ¶¶ 2-3; Wroblewski Dep. 31:8-19. An Ohiopyle employee handed Plaintiff a Rental Agreement and told her that she “needed to sign the form and meet up with [her] group because they were getting their gear.” ECF No. 25 at 2, ¶ 5; Wroblewski Dep. 76:6-21. Plaintiff testified that “[t]hey hurried me along” and she was not given an opportunity to read the Rental Agreement. Wroblewski Dep. 78:7; 76:22-23. She also testified that the Ohiopyle employee “didn’t ask me to read it, they just gave it to me and said please sign this and catch up with your group, they’re already getting their stuff.” [*6] Id. 78:3-13. Plaintiff signed Ohiopyle’s Rental Agreement which included a waiver and release of liability provision (“Release”). ECF No. 19-5. 3
3 Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement. ECF No. 19-5.
After receiving her rafting equipment, Plaintiff and her group received a safety briefing by an Ohiopyle employee before being sent to the river to embark on their trip. ECF No. 25 ¶ 8; Wroblewski Dep. 32:13-16. In the safety briefing, Plaintiff was warned that white water rafting can be dangerous, and it was possible that participants could fall out of the raft. Wroblewski Dep. 33:6-12.
After rafting through the first set of river rapids, Plaintiff grew concerned that the rapids were not level two or three. Id. 37:6-10. Plaintiff stated that she was concerned that the river was more than she could handle, and that she considered getting off of the river but “[t]here was no place to get off.” Id. 40:5-16. Plaintiff did not express her concerns to any others on the rafting trip. Id. 40:10-1. Near the end of the whitewater rafting trip, Plaintiff was thrown from the raft. ECF No. [*7] 21 ¶ 5; ECF No. 25 ¶ 5; Wroblewski Dep. 41:12-20. According to Plaintiff, she was dragged under water and struck her knee on a rock, sustaining serious injuries. ECF No. 21 ¶ 6; ECF No. 25 ¶ 6; Wroblewski Dep. 41:21-42:1.
Plaintiff filed this action against Defendant in June 2012. ECF No. 1. Defendant moved for summary judgment. ECF Nos. 19, 20, 21. Plaintiff filed her response, ECF Nos. 24, 25, and Defendant filed a reply as well as a supplement. ECF Nos. 26, 27, 31. For the reasons discussed below, Defendant’s Motion for Summary Judgment is granted.
II. Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The parties must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In other words, summary judgment may be granted only if [*8] there exists no genuine issue of material fact that would permit a reasonable jury to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.2009) (citations omitted). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (1986). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier [*9] of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.
III. Discussion
Ohiopyle advances two arguments in support of its summary judgment motion. First, Defendant submits that the Rental Agreement form signed by Plaintiff contained a valid and enforceable release of liability in favor of Defendant, releasing Defendant from liability for the very claims made in this matter. Secondly, Defendant argues that it did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting, and this Defendant should not have any liability.
On June 11, 2010, prior to white water rafting, Plaintiff signed a two-page document that contains a release of liability and is titled “RENTAL AGREEMENT” in capital letters at the top of its first page. ECF No. 19-5. The top half of the first page is a form to be filled out with information relating to the primary renter and the white water rafting equipment to be rented. Id.
The bottom half of the first page begins with the header “TERMS AND CONDITIONS,” with thirteen (13) paragraphs listed in three columns [*10] under this header. Id. The actual language releasing Ohiopyle from liability regardless of its own negligence is listed as paragraph nine (9) in this section. Id. The font of the Release language is the same size as the other paragraphs listed under “TERMS AND CONDITIONS” but, unlike the other paragraphs, is written in all capital letters. Id. The exculpatory clause consequently falls on the bottom half of the front side of the first page, in both the left and middle columns and, by itself, makes up approximately half of the language listed under “TERMS AND CONDITIONS.” Id.
Paragraph nine (9) contains the following language:
9. READ CAREFULLY THE FOLLOWING WAIVER AND RELEASE OF LIABILITY: HAVING RECEIVED A SAFETY TALK BY A MEMBER OP LESSOR’S STAFF, AND HAVING READ THE SAFETY PRECAUTIONS AND RECOMMENDATIONS ON THE REVERSE SIDE HEREOF, LESSEE(S) HEREBY ACKNOWLEDGE THAT HE/SHE/THEY FULLY UNDERSTAND(S): (a) THAT OUTDOOR RECREATIONAL ACTIVITIES HAVE INHERENT RISKS, DANGERS, AND HAZARDS, AND THAT SUCH EXISTS IN MY USE OF THE EQUIPMENT ABOVE DESCRIBED AND MY PARTICIPATION IN WHITE WATER RAFTING AND RELATED ACTIVITIES; (b) THAT MY PARTICIPATION IN SUCH ACTIVITIES AND/OR THE USE OF SUCH EQUIPMENT [*11] MAY RESULT IN INJURY OR ILLNESS, INCLUDING, BUT NOT LIMITED TO, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL AND OR TOTAL PARALYSIS, DEATH, OR OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY; (c) THAT SAID RISKS AND DANGERS MAY BE CAUSED BY (i) THE NEGLIGENCE OF THE OWNERS, EMPLOYEES, OFFICERS, OR AGENTS OF LESSOR, (ii) THE NEGLIGENCE OF PARTICIPANTS, (iii) THE NEGLIGENCE OF OTHERS, (iv) ACCIDENTS, (v) BREACHES OF CONTRACT, AND (vi) THE FORCES OF NATURE OR OTHER CAUSES; (d) THAT RISKS AND DANGERS MAY ARISE FROM FORESEEABLE OR UNFORESEEABLE CAUSES, INCLUDING, BUT NOT LIMITED TO, GUIDE DECISION MAKING, INCLUDING THAT A GUIDE MAY MISJUDGE TERRAIN, WEATHER, TRAIL OR RIVER ROUTE LOCATION; WATER LEVEL; FALLING OUT OF OR DROWNING WHILE IN A RAFT, CANOE, OR KAYAK; AND SUCH OTHER RISKS, HAZARDS. AND DANGERS THAT ARE INTEGRAL TO RECREATIONAL ACTIVITIES THAT TAKE PLACE IN A WILDERNESS, OUTDOOR OR RECREATIONAL ENVIRONMENT; AND (e) THAT BY MY PARTICIPATION IN THESE ACTIVITIES AND/OR USE OF THE EQUIPMENT ABOVE DESCRIBED, I HEREBY ASSUME ALL RISKS, DANGERS, AND RESPONSIBILITY FOR ANY LOSSES AND/OR DANGERS, WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR OTHER CONDUCT OF THE OWNERS, [*12] AGENTS, OR EMPLOYEES OF LESSOR OR ANY OTHER PERSON.
AND FURTHER, ON BEHALF OF MY PERSONAL REPRESENTATIVES, SUCCESSORS, HEIRS, AND ASSIGNS, I DO HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, LOSS OF SERVICES, OR OTHERWISE WHICH MAY ARISE OUT OF MY USE OF THE EQUIPMENT ABOVE DESCRIBED, OR MY PARTICIPATION IN ANY ACTIVITIES INVOLVING SAID EQUIPMENT. I SPECIFICALLY UNDERSTAND THAT I AM RELEASING, DISCHARGING, AND WAIVING ANY CLAIMS OR ACTIONS THAT I MAY HAVE PRESENTLY OR IN THE FUTURE FOR THE NEGLIGENT ACTS OR OTHER CONDUCT BY THE OWNERS, AGENTS, OFFICERS, OR EMPLOYEES OF LESSOR.
I HAVE READ THE ABOVE WAIVER AND RELEASE, AND, BY SIGNING THIS RENTAL AGREEMENT, AGREE THAT IT IS MY INTENTION TO EXEMPT AND RELIEVE LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.
Id.
At the end of the “TERMS AND CONDITIONS” section, at the beginning of the right column, is the following language:
IN WITNESS [*13] WEREOF, and intending to be legally bound hereby, the undersigned Lessee(s) hereby certify that he/she/they have read and understood the terms and conditions of this Rental Agreement, and has/have affixed his/her/their hand(s) and seal(s) hereto on the dated indicated.
Id. Directly underneath this language, and in the column next to the exculpatory clause, multiple lines were provided where Plaintiff and the members of her party signed their names. Id. Plaintiff’s signature is the second to last signature listed on the form. Id.
The second page of the Rental Agreement has two sections. Id. The first section includes the header “SAFETY PRECAUTIONS” and the second section is titled “RECOMMENDATIONS.” Id. Both sections list a number of precautions and recommendations for how white water rafters should conduct themselves while on the river. Id.
The Defendant argues that the Release contained in the Rental Agreement is valid and enforceable. ECF Nos. 19, 20, 26. Plaintiff on the other hand asserts that the Release is unenforceable because its language is not sufficiently conspicuous to alert a party that it serves to release Defendant from liability and that Plaintiff did not actually assent [*14] to the terms of the Rental Agreement. ECF No. 24. To support her contentions, Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Id. at 7-8. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Id. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees. Id.
The parties agree that this Court must consider Pennsylvania law and apply it in this case. See Lin v. Spring Mountain Adventures, Inc., 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *3 (E.D. Pa. Dec. 23, 2010). Applying Pennsylvania law, the Pennsylvania Supreme Court explained that:
It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent [*15] to the agreement so that the contract is not one of adhesion. . . . once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (citations omitted).
Plaintiff primarily relies on three release of liability cases to support her contention that the Release is in this instance unenforceable: Beck-Hummel v. Ski Shawnee, Inc., 2006 PA Super 159, 902 A.2d 1266 (Pa. Super. Ct. 2006); [*16] Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (Pa. 2010), and Lin v. Spring Mountain Adventures, Inc., No. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010). 4
4 Plaintiff does not argue that the release in this instance is facially invalid.
In Beck-Hummel, the plaintiff brought a negligence claim for injuries she received from colliding with a barrier wall while snow tubing at the defendant’s resort. 2006 PA Super 159, 902 A.2d 1266. There, the release was printed on the backside of a lift ticket that the plaintiff’s husband purchased and had given to plaintiff. Id. at 1267, 1270-71. The release contained hard to read and inconspicuous language, it did not require a signature or acknowledgment, and was printed on the portion of the ticket that would be folded out of sight of the user. Id. at 1269, 1273-1274. The record also revealed the lift ticket was not given to the Plaintiff directly by the operator. The Pennsylvania Superior Court held that plaintiff’s assent to the terms of the disclaimer was not clearly established and therefore it could not hold as a matter of law that the release for snow tubing injuries was enforceable. Id. at 1275.
In Chepkevich, plaintiff skier, who had signed a release [*17] prior to skiing, asked a lift operator to stop a lift so that she and her 6-year-old nephew could board the lift. Although the lift operator agreed to do so, when the lift came behind the plaintiff and her nephew, the operator failed to stop the lift. The skier sued the ski resort for negligence for injuries she received as a result of falling from the ski lift. The release in this case was printed on a single page and titled “RELEASE FROM LIABILITY.” 2 A.3d at 1192. The language releasing liability was in the same font as the rest of the release, included the term “negligence”, and “specifically noted that riding the ski lift is a risky activity.” Id. The plaintiff argued that she did not read the exculpatory language nor did anyone orally inform her that she was entering into such an agreement. Id. at 1180-81. The court held that the release was valid, enforceable, and “clearly encompassed the risk at issue . . . [and] clearly spelled out the parties’ intention to release [defendant] from liability for injuries . . . regardless of any negligence on the part of the [defendant].” Id. at 1195. The court therefore upheld the grant of summary judgment in favor of the defendant. Id.
Finally [*18] in Lin, the plaintiff sued for serious injuries sustained from skiing when she lost control and fell into a snow making machine that was not properly padded. The document containing the release provision was titled “EQUIPMENT RENTAL FORM AND RELEASE FROM LIABILITY.” 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *2. On the front page of the release was a capitalized, blocked section in the center of the page, above the signature line, instructing the reader to “PLEASE READ THE AGREEMENT ON THE BACK OF THIS FORM BEFORE SIGNING. IT RELEASES U.S. FROM CERTAIN LIABILITY.” Id. Directly between the instruction to read the back of the release and the signature line was the following statement: “I, the undersigned, have carefully read and understood the Acceptance of Risk and Liability Release on the back of this paper.” Id. The exculpatory clause was located on the back of the form and stated multiple times that it was a release from liability. 2010 U.S. Dist. LEXIS 136090, [WL] at *2. The court found that even though the plaintiff had not read the release language, that she “was a voluntary signatory to a full-sized contract.” 2010 U.S. Dist. LEXIS 136090, [WL] at *5. The court held that the exculpatory clause was enforceable and granted defendant’s motion for summary judgment. [*19] 2010 U.S. Dist. LEXIS 136090, [WL] at *9.
This case is not analogous to Beck-Hummel, as Plaintiff contends. Unlike Beck-Hummel, Plaintiff “was not a mere recipient of a release printed on a ticket, but was a voluntary signatory to a full-sized contract.” Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *5. Plaintiff signed the Rental Agreement herself, and her signature is immediately preceded by instructions guiding her to read the entirety of the form and confirming that she had done so. Moreover, Plaintiff was provided a full-sized contract in which the Release was set forth on its front side, as opposed to a small unreadable ticket that she did not sign and in which the operative language was written on the reverse side.
Moreover, the language of the Release, construed strictly against Defendant, plainly expresses the intention of the parties to release Defendant from liability for future injury. The paragraph mentions “negligence” five (5) times and that it is a release of liability three (3) times. ECF No. 19-5. 5 Specifically, the first sentence of paragraph 9 asks the signer to carefully read the “WAIVER AND RELEASE OF LIABILITY.” Id.
5 In fact, exculpatory clauses may bar suits based on negligence even where the clause does not specifically [*20] mention the word “negligence” at all. Chepkevich, 2 A.3d at 1193. “It strains common sense to suggest that releases that fail to mention the word ‘negligence’ should consistently be interpreted as barring suits based on negligence claims, while a release that clearly states that suits are barred ‘regardless of negligence’ would not bar such suits.” Id.
Part of Plaintiff’s argument is that she was not personally informed by Ohiopyle of the elevated water level prior to her signing the Rental Agreement. However, the language of the Release explicitly warned of the same things that Defendant’s employees cautioned the rest of Plaintiff’s group. Specially, the Release warns of “bodily injury” from “risks and dangers [that] may arise from foreseeable or unforeseeable causes, including . . . water level” and “falling out of . . . a raft.” Id. Furthermore, the clause stated that by signing the agreement, the signor “assume[s] all risks, dangers, and responsibility for any losses and/or dangers.” Id. In fact, the clause even warns of “total paralysis” and “death.” Id. This paragraph goes on to explain that the signor “specifically understand[s] that I am releasing, discharging, and waiving any [*21] claims or actions that I may have presently or in the future for the negligent acts or other conduct by” the Defendant. Id. Furthermore, “it is my intention to exempt and relieve lessor . . . from liability for personal injury . . . caused by negligence.” Id. It is also important to note that prior to her trip to Ohiopyle, Plaintiff admittedly went white water rafting in Arizona where she signed a rental agreement with a release, and was informed that white water rafting could be dangerous and that she could fall out of the raft. Wroblewski Dep. 16:21-17:7; 20:14-21:9. Moreover, in Ohiopyle’s safety briefing, right before Plaintiff boarded the raft, Plaintiff and her group were warned that white water rafting can be dangerous, and it was possible that she could fall out of the raft. Id. 33:6-12.
The fact that the exculpatory language was contained in the bottom half of the first page, not listed until paragraph 9, and not directly above the signature line does not make it unenforceable, either generally or in this case. While the terms and conditions are in a slightly smaller font than the upper half of the form, they are still clearly readable. Moreover, paragraph 9 is the only paragraph [*22] written entirely in capital letters. Taken as a whole, using a strict (but common sense) interpretation, it is clear the form in question releases the Defendant from liability for injuries such as those sustained by Plaintiff, even if due to Defendant’s own negligence. 6
6 Lahey v. Covington, 964 F. Supp. 1440, 1442 (D. Colo. 1996) is factually similar to this case in that there, the defendant failed to personally inform plaintiff of heightened water level when the plaintiff took a white water rafting trip through defendant’s company. The Arkansas Headwater Recreation Area, a white water rafting regulatory group, recommended against any rafting when the water flow measured 4.0 feet high or more (the same cut-off measurement for rafts without guides at Ohiopyle). The defendant also had a company policy to not take people rafting when the water was four feet or higher. On the day in question, the river measured 3.8 feet but, similar to this case, the defendant did not inform the plaintiff that the water level was “high” that day. Plaintiff signed a release of liability agreement prior to the trip and was injured after being tossed into the river. The court held that the exculpatory portion [*23] of the release agreement was valid and granted defendant’s motion for summary judgment on plaintiff’s negligence claim. Id. at 1446.
Plaintiff contends that summary judgment is also improper because whether she knowingly signed the Rental Agreement and assented to its terms is a question of fact for the jury. ECF No. 24. Plaintiff argues that she did not read the Release and that employees of Defendant did not directly warn or advise her as to the conditions of the river or offer her a guided tour, nor did they orally inform her of what the form stated or ask her to read the form, and that they rushed and “hurried [her] along”, and therefore she did not assent to the terms of the agreement. Id.
Plaintiff voluntarily chose to engage in the sport of white water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white water rafting trip with her group. See Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012) (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or [*24] not, in the activity, and, therefore, is free to sign, or not, the release form.”); see also Chepkevich, 607 Pa. 1, 2 A.3d 1174 (release enforceable even though plaintiff had not read agreement); Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (same). There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.
Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity. Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (Pa. 1983) (“[I]n the absence of proof of fraud, failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.”); see also Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D. Pa. Feb. 11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention. [*25] . . . Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). 7
7 See also In re Greenfield Estate, 14 Pa. 489, 496 (Pa. 1850) (“[i]f a party, who can read . . . will not read a deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which . . . is not the subject of protection, either in equity or at law.”).
This rule has been applied time and again in the context of recreational activities in which a party signed a pre-injury release of liability. For instance, the Pennsylvania Superior Court affirmed an order granting summary judgment in favor of the owner of a racetrack where the plaintiff had signed an agreement releasing all claims against the racetrack before he was injured. Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380 (Pa. Super. Ct. 1990). The Superior Court held that the signed release was enforceable even though plaintiff claimed that he had not read it, did not know that he was signing a release, and did not have time to read the document because of a long line of people behind [*26] him. Id. at 1383 (“His explanation that he did not read it does not, in the absence of fraud or a confidential relationship, extricate him from its operation.”). See also Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6 (“[i]t is a well established rule under Pennsylvania law that failure to read a contract does not relieve a party of their obligation under such contract that they sign, and such parties will be bound by the agreement without regard to whether the terms were read and fully understood.”); Martinez v. Skirmish, U.S.A., Inc., No. 07-5003, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, *7 (E.D. Pa. June 15, 2009) (release enforceable as to negligence for injury to plaintiff during paintball game, noting that plaintiff was accompanied by friends “who could have explained the Waiver & Release to him, if he had asked them to do so. . . . Consequently, [plaintiff’s] failure to read that document cannot constitute a defense to the enforceability of the Waiver & Release.”); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174-75 (E.D. Pa. 1990) (release that plaintiff signed before being injured while racing all-terrain vehicle was enforceable even though plaintiff failed to read it because “[t]o accept plaintiff’s [*27] argument that there is such a duty [on the part of the defendant] to inform in this case would essentially abrogate the law of Pennsylvania regarding plaintiff’s duty to read.”). 8
8 In Doe v. Cultural Care, Inc., No. 10-11426-DJC, 2011 U.S. Dist. LEXIS 28226, 2011 WL 1048624, at *4-5 (D. Mass. Mar. 17, 2011), the court held that a release signed by plaintiff was enforceable even if the defendant had rushed her. There, the court explained that
“[t]he fact that [plaintiff] did not take the time to read the terms and conditions of the Agreement because she felt hurried by [defendant] does not change the analysis. [Plaintiff] does not dispute that she executed the Agreement or that it contains the Release. She disputes that she agreed to the terms and conditions, that the Release discharges Defendants from liability or bars her claims since she had no knowledge of the Release and was rushed into executing the Agreement based on Defendants’ representations.”
Id.
Similar to the cases discussed above, Plaintiff voluntarily participated in the white water rafting trip. “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential [*28] services, but merely governs a voluntary recreational activity.” Chepkevich, 2 A.3d at 1191. Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white water rafting. See Martinez, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, at *7 (argument that plaintiff had no choice but to sign release because he had pre-paid for the paintball activity was unavailing for the reason that it was a recreational activity where participation was voluntary). Holding that Defendant had a duty to orally inform Plaintiff of what she was signing, or holding a release unenforceable because Plaintiff failed to read the contract containing a release of liability she signed because she felt rushed, would turn this rule on its head.
The Court considers, as it must, all of the relevant circumstances set out in the record, Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6, and is unable to agree with Plaintiff that the Rental Agreement constituted (as a matter of law) an insufficient effort on the part of Ohiopyle to inform her of the fact that by signing that Agreement, she was giving up any right she might have to sue for damages arising from injuries caused even by negligence. In five [*29] (5) different places the Release mentions “negligence” and states that is a release of liability in three (3) places. ECF 19-5. Similar to Chepkevich, “[a]lthough the outcome in this case was certainly unfortunate, the risk was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release, which specifically noted” that white water rafting is a risky activity in which water levels can increase or decrease and that you can fall out of the raft. Chepkevich, 607 Pa. 1, 2 A.3d 1174, 1194. Furthermore, between her previous white water rafting trip in Arizona and the safety briefing she was admittedly provided by Ohiopyle, Plaintiff was aware that white water rafting was dangerous and that falling out of a raft was an actual danger of the activity. Moreover, Plaintiff’s argument that there is an issue of material fact as to whether she assented to the terms of the agreement because she felt “rushed” by Defendant, is insufficient to deem the agreement unenforceable in light of her duty under Pennsylvania law to read a contract.
The Release, even when construed against Defendant, clearly spelled out the parties’ intention [*30] to release Defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s Motion for Summary Judgment is granted. 9
9 Because the signed Rental Agreement precludes Plaintiff from bringing a claim of negligence against Defendant, the Court need not decide whether the incident at issue in this case was an inherent risk of white water rafting.
IV. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. An appropriate Order will issue.
/s/ Mark R. Hornak
Mark R. Hornak
United States District Judge
Dated: August 22, 2013
If you throw a throwbag incorrectly (yes there is now a right way and wrong way) that can be used to sue you. It used to be the correct way was the swimmer got the rope; incorrect way swimmer missed the rope.
Posted: April 16, 2014 Filed under: Paddlesports | Tags: American Society of Testing & Material, ASTM, Guide, Paddlesports, Personal Flotation Device, Raft guide, Rescuer, Search and Rescue, Swiftwater rescue, Throw bag, Throw Rope, Throwbag, Water Rescue, Water Rescuer, Whitewater Guide 1 CommentYo! Raft guides, ever been sued? New ASTM standard will now make that possible!
Well meaning, hardworking volunteers have no idea how they are helping to create lawsuits but here is the perfect example.
ASTM F1730 – 96(2014)
Standard Guide for Throwing a Water Rescue Throwbag
Active Standard ASTM F1730 | Developed by Subcommittee: F32.02
Book of Standards Volume:13.02
Here is how this standard is explained.
Significance and Use
3.1 This guide establishes a recommended procedure for a throwing rescue to ensure the safety of all water rescuers who may be involved in rescue techniques at a water rescue emergency.
3.2 This water rescue technique can be utilized from land, boat, or any stable platform.
3.3 All persons who are identified as water rescuers shall meet the requirements of this guide.
3.4 This guide is intended to assist government agencies, state, local, and regional organizations; fire departments; rescue teams and others who are responsible for establishing a minimum performance for personnel who respond to water emergencies.
3.5 The procedure outlined in the document may vary with the number and type of victims, and water conditions.
1. Scope
1.1 This guide covers the recommended procedures for throwing a water rescue throwbag.
1.2 This guide is one in a series of water rescue techniques for the water rescuer.
1.3 This standard does not purport to address all of the safety concerns, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety and health practices and determine the applicability of regulatory limitations prior to use.
Does this apply to raft guides? I would say yes.
Is a raft guide a “water rescuer” who may be involved in rescue techniques at a water rescue emergency.” If so you have to meet the requirements of this guide.
Do you know the name of a group of people who meet this definition? “…others who are responsible for establishing a minimum performance for personnel….” They are called a jury.
Let’s see how this is a messed up idea.
You were a high school quarterback with a good arm. You can throw a throwbag just like a football with great accuracy.
You are right-handed and standing on shore next to a rock wall. There is not room to throw the throwbag underhanded.
You are on a 12’ raft in the Royal Gorge on the Arkansas River. Does the definition of 3.2, which describes a boat as stable apply to you? Since your boat is not stable should you knot use your throwbag? Are you allowed to throw any way you can, if you are not stable?
Seriously, why is someone writing these things? Can’t they see how broadly this is written and how much damage it will do?
Look, someone is in the river it doesn’t matter if you are throwing the bag backwards, blindfolded standing on one leg in a pink tutu. If you get the rope to the swimmer, that was the correct way!!!
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Really neat assumption of the risk agreement. But will it work? Should it be a release?
Posted: April 2, 2014 Filed under: Assumption of the Risk, Paddlesports | Tags: Acknowledgement of Risk, assumption of the risk, Florida, Release, WaterTribe Leave a commentWithout the word negligence or giving up your right to sue it is not a release.
A friend sent me this assumption of the risk form. You can find it here. It is on the WaterTribe website. It is fun to read and well written. Three long pages of warnings about the risks of boating.
However there is no place to sign. So there is no way to prove that anyone signed the form.
There is also no use of the magic word negligence or language where the party is giving up the right to sue.
The document says you have to sign a release, however searching the site did not turn one up. However it might be a member’s only location on the site. Does the release tie into or relate back to this form. That would provide great assumption of risk proof.
Do Something
However this is nothing wrong with this document. It tells the truth that if you don’t read and pay attention to what it says you can get hurt or die.
Maybe we need more documents that drive home the risk, rather than legally dance around it.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Release signed for whitewater rafting also works to stop claim for tripping getting out of raft bus. Tennessee release law broad enough to protect items enumerated in the release
Posted: March 10, 2014 Filed under: Paddlesports, Release (pre-injury contract not to sue), Tennessee, Whitewater Rafting | Tags: Bus, Negligence, Public Policy, Raft, Rafting, Rafting Bus, Release, statute, Tennessee, Transportation, Whitewater Rafting Leave a commentHenderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334
Plaintiff: Nathan & Brandy Henderson
Defendant: Quest Expeditions, Inc.
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the defendant based on the release
This Tennessee case is quite interesting. The plaintiff was a first-time whitewater rafter. After the raft trip ended, he boarded the bus to ride back to the office. For some reason, not in the record, he was forced to get out of the first bus and board another bus. While disembarking from the first bus he slipped and fell sustaining injuries.
He filed this suit which was dismissed by the trial court based on a Motion for Summary Judgment. The plaintiff appealed arguing the release was barred by public policy and void because it was too excessive in its scope.
Summary of the case
The court looked at all arguments raised by the plaintiff on appeal. Some that I have reviewed and written about before and some new and “novel” theories.
The first issue was the plaintiff stated the release should be thrown out because the plaintiff “had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant.”
Can you imagine the pile up in an office if you had to go over each release with each patron who came to purchase a trip from you?
The plaintiff also argued that “he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional money to not have to sign the waiver.”
This is a rare argument, but it has been used to defeat releases in a few cases. See Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2.
The next argument was the release was void because it violated public policy. The court first looked at whether releases were valid in Tennessee. The Tennessee Supreme Court upheld releases.
It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.
Of note is the statement by the court that the word negligence does not need to appear in the release. The Tennessee Supreme Court adopted the requirements of Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963) to determine if an activity should not be covered by a release.
(a.) It concerns a business of a type generally thought suitable for public regulation.
(b.) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
(c.) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
(e.) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
The court then looked at the factors as explained by the Tennessee Supreme Court. Generally, professionals are not allowed to receive a release for their negligence, where tradesmen could.
…not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’
Whitewater rafting is not a professional trade and as such the defendant could use a release. Whitewater rafting “is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” There is no necessity that one goes whitewater rafting.
The plaintiff then argued that because whitewater rafting was regulated it was of a public interest. Tennessee’s legislature passed 2005 Tenn. Pub. Acts 169 which regulated whitewater rafting in the state. However, the statute specifically allowed the use of releases. T.C.A. 70-7-205. Written waivers, exculpatory agreements and releases.
The final argument was the injury received by the plaintiff, slipping exiting a bus, which not an inherent risk of whitewater rafting and thus of outside the scope of the release. The plaintiff described the busses of the defendant in his complaint as: “…dilapidated school buses.” (Seems like a normal rafting company to me……
However, the court rejected that argument on two grounds. The first was the release was written broadly and covered all negligent acts of the defendant. The second was the release mentioned bus or van transportation. “Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white-water rafting and “bus or van transportation” provided by the defendant.”
The court concluded:
The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Con-tract states that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written.
So Now What?
First, never run the risk of having a release thrown out because it does not include the magic word negligence. Even though the Supreme Court may not require it today, your lawsuit tomorrow may set precedence on that issue. It is easy to put in and should be in every release.
To defeat the argument that you should be able to bargain your way out of the release or that whether there are any other companies offering trips without requiring a release to be signed you should put language in your release advising your clients about those issues. A release that states that the person is signing the release voluntarily and undertaking the activity voluntarily and is free to go, as in this case, whitewater rafting with someone else can eliminate this argument in most states.
To engage or purchase a trip with you without signing a release have your insurance company send you a letter stating how much your insurance would cost if a release is not signed. Then if asked you can show a patron the letter to support charging the normal price plus the increase in your insurance premium to go on a trip without signing a release. A $10,095.00 raft trip is probably not worth it for a day on the water.
If anyone asks if they can go rafting and not sign a release, the easiest way to respond is to send them to a competitor.
Whether or not transportation will be covered by a release will be different for each state. In some states if the transportation is incidental to the activity it may be covered. Here the release was written broadly, and releases are interpreted broadly to allow the scope of the release to cover transportation.
In some states, however, transportation is an activity that cannot be released because it is protected by public policy.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334
Posted: March 10, 2014 Filed under: Legal Case, Paddlesports, Release (pre-injury contract not to sue), Tennessee | Tags: Bus, California Supreme Court, Release, Supreme Court, Tenn, Tennessee, TN, Transportation, Whitewater Rafting Leave a commentTo Read an Analysis of this decision see: Release signed for whitewater rafting also works to stop claim for tripping getting out of raft bus. Tennessee release law broad enough to protect items enumerated in the release
Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334
Nathan & Brandy Henderson v. Quest Expeditions, Inc.
No. E2004-02585-COA-R3-CV
COURT OF APPEALS OF TENNESSEE, AT KNOXVILLE
174 S.W.3d 730; 2005 Tenn. App. LEXIS 334
April 4, 2005, Session
June 8, 2005, Filed
SUBSEQUENT HISTORY: Appeal denied by Henderson v. Quest Expeditions, Inc., 2005 Tenn. LEXIS 962 (Tenn., Oct. 24, 2005)
PRIOR HISTORY: [**1] Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed. Direct Appeal from the Circuit Court for Polk County. No. CV-03-130. Hon. John B. Hagler, Circuit Judge.
DISPOSITION: Judgment of the Circuit Court Affirmed.
COUNSEL: H. Franklin Chancey, Cleveland, Tennessee, for appellants.
Gary A. Cooper, Chattanooga, Tennessee, for appellee.
JUDGES: HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.
OPINION BY: HERSCHEL PICKENS FRANKS
OPINION
[*731] In this action for personal injuries allegedly due to defendant’s negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs’ participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm.
Plaintiffs’ Complaint alleged that Henderson was injured while on a white water rafting expedition operated by defendant. The Complaint alleged that defendant “ferries rafters to and from the Ocoee River by means of a series of dilapidated school buses.”, and that [**2] after Henderson had completed his rafting trip, he and other rafters were put on a bus, and then told to get on another bus, and when disembarking from the first bus he slipped and fell, sustaining severe personal injuries. Plaintiffs further alleged that defendant’s negligence was the proximate cause of his injuries.
Defendant in its Answer admitted that Henderson had participated in a rafting trip sponsored by defendant, and among its defenses raised was waiver, because plaintiff had signed a “Waiver and Release of Liability”, which defendant attached to its Answer.
In their Answers to Requests for Admissions, plaintiffs admitted that the waiver in question had been signed by Henderson. Defendant then filed a Motion for Summary Judgment, which plaintiffs opposed and Henderson filed his Affidavit which stated that Henderson had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant. He further stated that he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional [**3] money to not have to sign the waiver.
The Trial Court determined that the waiver in this case did not affect the public interest, and thus the waiver was not void as against public policy. The court noted that Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977) did not apply to this situation and he was guided by the rule adopted in California, which states that “exculpatory agreements in the recreational sports context do not implicate the public interest.” Citing Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 59 Cal.Rptr.2d 813, 823 (Ca. App. 1996).
Plaintiffs on appeal insist the Waiver is void against public policy, and in the alternative, that the Waiver was void on the grounds it was too excessive in scope.
Plaintiffs concede that if the Waiver is enforceable then this action is barred, but argue the waiver violates the public policy of this State.
[*732] As our Supreme Court has explained:
[HN1] It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear [**4] in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.
Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973).
An exception to this rule was recognized by the Supreme Court in Olson v. Molzen, wherein the Court held that certain relationships required greater responsibility which would render such a release “obnoxious”. Olson, at p. 430. The Court adopted the opinion of the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963), which held that where the public interest would be affected by an exculpatory provision, such provision could be held invalid. Olson, at p. 431.
[HN2] Our Supreme Court adopted the six criteria set forth in Tunkl as useful in determining when an exculpatory provision should be held invalid as contrary to public policy. See Olson. These criteria are:
(a.) It concerns a business of a type generally thought suitable for public regulation.
(b.) The party seeking exculpation is engaged in performing a service of great importance to [**5] the public, which is often a matter of practical necessity for some members of the public.
(c.) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
(e.) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
Olson, at p. 431.
In Olson, the Supreme Court invalidated a contract between a doctor and patient which attempted to release the doctor from liability for his negligence in the performance of medical [**6] services. Also see Carey v. Merritt, 148 S.W.3d 912 (Tenn. Ct. App. 2004) and Russell v. Bray, 116 S.W.3d 1 (Tenn. Ct. App. 2003). In Russell, this Court refused to enforce an exculpatory contract between home buyers and the home inspectors who were hired by the buyers, because the Court found that the home inspectors were professionals whose services affected the public interest, and thus the contracts were offensive to public policy, based on the factors enumerated in Olson. In Carey, this Court made clear that [HN3] not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’.” Carey, at p. 916; cf. Parton v. Mark Pirtle Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 634 [*733] (Tenn. Ct. App. 1987) (auto repair shop is not “professional” as would qualify it as service affecting public interest in order to invalidate exculpatory contract).
This case is factually different from Olson, Carey, and Parton because the white-water rafting service offered [**7] by defendant is not a “professional” trade, which affects the public interest. As discussed in factor number two quoted above, this is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” See Olson. There is no necessity that one go white-water rafting. In fact, [HN4] many jurisdictions have recognized that such recreational sporting activities are not activities of an essential nature which would render exculpatory clauses contrary to the public interest. See Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000) (health club services not essential for purposes of holding exculpatory clause unenforceable as offensive to public interest); Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 59 Cal.Rptr.2d 813 (Cal. Ct. App. 1996) (“voluntary participation in recreational and sports activities [skiing] does not implicate the public interest”); Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) (sky diving and other private recreational businesses generally do not involve services which are necessary to the public such [**8] that exculpatory contract would be invalidated).
Plaintiffs argue that the Release in this case does affect the public interest because the business involved, i.e. commercial white-water rafting, is subject to regulation. While this is true, the presence of this factor does not render this Release offensive to the public interest. In fact, [HN5] recent legislation passed by the Tennessee Legislature “recognizes that the State has a legitimate interest in maintaining the economic viability of commercial white water rafting operations” because the State and its citizens benefit thereby. 2005 Tenn. Pub. Acts 169. This act states the legislative intent is to “encourage white water rafting by discouraging claims based on injury, death or damages resulting from risks inherent in white water rafting.” Id. Thus, the Tennessee legislature has evidenced that the public policy of this State is that commercial white water rafting companies be protected from claims for injuries to patrons.
Accordingly we affirm the Trial Court’s determination that the exculpatory contract in this case does not affect the public interest such that it should be invalidated pursuant to the Olson criteria.
Finally, [**9] appellants argue that the Release in this case should not operate as a bar to their claims because the injury suffered by Henderson was not within the “inherent risks” of the sport of white water rafting, and thus was not within the contemplation of the parties when the release was signed.
In the cases relied on by the plaintiffs regarding the scope of exculpatory provisions in the context of a sport, there are no provisions in those agreements which purport to release the defendant from its own negligence. For example, in Johnson v. Thruway Speedways, Inc., 63 A.D.2d 204, 407 N.Y.S.2d 81 (N.Y. App. Div. 1978), the Court refused to uphold a grant of summary judgment based on a release signed by the plaintiff prior to the sporting event. The Court stated that language of the release (which was not quoted in the opinion) “could lead to the conclusion that it only applied to injuries sustained by a spectator which were associated with the risks inherent in the activity of automobile racing”. The plaintiff in that case was injured when he was hit by a maintenance vehicle not involved in the race. Id. at 205. Thus, the Court [*734] held that this created a triable issue of fact [**10] as to whether the incident was of the type contemplated by the parties when the release was signed. Id.
Similarly, in the case of Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 474 N.E.2d 729, 85 Ill. Dec. 769 (Ill. App. Ct. 1984), the plaintiff was injured when he inhaled dangerous vapors created by the negligent mixing of cleaning compounds by the defendant health club’s employee. Plaintiff had signed a membership contract which contained exculpatory language regarding plaintiff’s use of the facilities (but did not mention any negligence by defendant). Id. The Court stated this type of injury was arguably not foreseeable to plaintiff when he signed the release, and thus a fact question existed regarding the parties’ intent behind the exculpation clause, which precluded summary judgment. Id. 1
1 The Court noted the result would have been different if plaintiff’s injuries stemmed from a slip and fall in an area adjacent to a swimming pool, citing its previous decision in Owen v. Vic Tanny Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (Ill. App. Ct. 1964).
[**11] In another case where “negligence” is included in the release, Sweat v. Big Time Auto Racing, Inc., 117 Cal. App. 4th 1301, 12 Cal.Rptr. 3d 678 (Cal. Ct. App. 2004), the plaintiff was injured when the pit-area bleachers collapsed. Plaintiff had signed a release before entering the pit area, which stated that he released the defendant from all liability “whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area and/or . . . observing . . . the event.” Id. at 680. The Court found that the release was ambiguous due to the “and/or” language used, and thus relied on extrinsic evidence in interpreting the release, such as the fact that anyone could enter the pit area without signing the release once the race was over. The Court concluded that the release was only intended to apply to the risks inherent in being in close proximity to a race, and was not intended to cover the type of incident which occurred when the bleachers collapsed due to defective construction/maintenance. Id.
[HN6] The majority view from sister states is that an exculpatory provision which specifically and expressly releases a defendant from [**12] its own negligence will be upheld, without regard to whether the injury sustained is one typically thought to be “inherent in the sport”. In fact, there seems to be a split of authority among the states regarding whether the word “negligence” is even required to be present in the exculpation clause for the provision to be construed as releasing the defendant from its own negligence. Cases from Connecticut, for example, have held that in order for an exculpatory provision to be construed as releasing a defendant from its own negligence, the provision must expressly mention negligence . The cases are equally clear, however, that if the provision does expressly release the defendant from its own negligence, then it will be upheld as written. See Hyson v. White Water Mtn. Resorts, 265 Conn. 636, 829 A.2d 827 (Conn. 2003) (snowtubing); Brown v. Sol, 2004 Conn. Super. LEXIS 2430, 2004 WL 2165638 (Conn. Super. Ct. Aug. 31, 2004) (racing school); DiMaggio v. LaBreque, 2003 Conn. Super. LEXIS 2823, 2003 WL 22480968 (Conn. Super. Ct. Oct. 9, 2003) (parachuting).
[HN7] Most jurisdictions, including Tennessee, have held that if the exculpation contract sufficiently demonstrates the parties’ intent to eliminate [**13] liability for negligence, the absence of the word “negligence” is not fatal. See Krazek v. Mountain River Tours, Inc., 884 F.2d 163 (4th Cir. 1989) (white water rafting); Saenz v. Whitewater Voyages, Inc., 226 Cal. App. 3d 758, 276 Cal.Rptr. 672 (Cal. Ct. App. 1991) (white water rafting); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989) (horseback [*735] riding); Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000) (health club); Petry v. Cosmopolitan Spa Intern., Inc., 641 S.W.2d 202 (Tenn. Ct. App. 1982) (health club); Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (W. Va. 1991) (white water rafting); Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) (skydiving). In these cases, the fact that the injury occurred during an activity that was not foreseeable or not associated with a risk “inherent in the sport” did not matter. See, e.g., Benedek (health club member injured when adjusting a television set above exercise machines which fell); Murphy (white water rafter injured [**14] when her raft tried to engage in rescue of another raft), and Petry (patron of health club injured when exercise machine she was sitting on collapsed).
In this case, the Release in question does specifically and expressly release defendant from any liability for its negligence or that of any employees, owners, agents, etc. In the matter of contract interpretation, this Court has previously explained:
[HN8] The cardinal rule in the construction of contracts is to ascertain the intent of the parties. West v. Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn. App. 1984). If the contract is plain and unambiguous, the meaning thereof is a question of law, and it is the Court’s function to interpret the contract as written according to its plain terms. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955). The language used in a contract must be taken and understood in its plain, ordinary, and popular sense. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn. 1975). In construing contracts, the words expressing the parties’ intentions should be given the usual, natural, and ordinary meaning. Ballard v. North American Life & Cas. Co., 667 S.W.2d 79 (Tenn. App. 1983). [**15] If the language of a written instrument is unambiguous, the Court must interpret it as written rather than according to the unexpressed intention of one of the parties. Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn. App. 1981). Courts cannot make contracts for parties but can only enforce the contract which the parties themselves have made. McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830, 22 A.L.R.2d 980 (1951).
Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999).
The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Contract states [**16] that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written. We conclude the Trial Court properly granted summary judgment to defendant on plaintiffs’ negligence claims.
The Trial Court’s Judgment is affirmed, and the cost of the appeal is assessed to plaintiffs Nathan and Brandy Henderson.
HERSCHEL PICKENS FRANKS, P.J.
G-YQ06K3L262
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Liability for Activities Whitewater Rafting Professionals
Posted: March 10, 2014 Filed under: Paddlesports, Tennessee, Whitewater Rafting | Tags: Paddling, Raft, Recreation, Release, statute, Tenn, Tennessee, Whitewater Rafting Leave a commentTennessee Whitewater Rafting Statute
TENNESSEE CODE ANNOTATED
Title 70 Wildlife Resources
Chapter 7 Liability for Activities
Part 2 Whitewater Rafting Professionals
GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY
Tenn. Code Ann. § 70-7-204 (2013)
70-7-201. Part definitions.
As used in this part, unless the context otherwise requires:
(1) “Engages in whitewater activity” means whitewater rafting;
(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:
(A) Water;
(B) Rocks and obstructions;
(C) Cold water and weather; and
(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;
(3) “Participant” means any person who engages in a whitewater activity;
(4) “Whitewater” means rapidly moving water;
(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and
(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other en-tity engaged for compensation in whitewater activity.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-202. Limitations on liability of whitewater professional.
Except as provided in § 70-7-203:
(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and
(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-203.
70-7-203. When liability of whitewater professional imposed.
Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:
(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;
(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;
(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or
(4) Intentionally injures the participant.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-202.
70-7-204. Warning notice.
(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.
(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.
(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).
(d) The signs and contracts described in subsection (a) shall contain the following warning notice:
WARNING
Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-205. Written waivers, exculpatory agreements and releases.
Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
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Bill before congress to open the Yellowstone River and Grand Teton National Parks to paddling has an interesting side
Posted: March 8, 2014 Filed under: Paddlesports, Wyoming | Tags: Code of Federal Regulations, Congress, Grand Teton National Park, National Elk Refuge, National Park Service, Paddlesports, Paddling, Rafting, rivers, United States House Committee on Natural Resources, Yellowstone, Yellowstone National Park, Yellowstone River 1 CommentThe bill is sponsored by, let’s say, a very non environmental supporter in Congress. The bill is part of several other bills which are not so innocuous and the bill opens vast areas to paddling that the NPS will not be able to control.
You can find the bill here:
113th CONGRESS
1st Session
H. R. 3492
IN THE HOUSE OF REPRESENTATIVES
November 14, 2013
Mrs. Lummis (for herself and Mr. Bishop of Utah) introduced the following bill; which was referred to the Committee on Natural Resources
A BILL
To provide for the use of hand-propelled vessels in Yellowstone National Park, Grand Teton National Park, and the National Elk Refuge, and for other purposes.
1.
Short Title
This Act may be cited as the ” River Paddling Protection Act “.
2.
Regulations Superseded
(a)
In general
The following regulations shall have no force or effect with regard to hand-propelled vessels and the Secretary of the Interior may not issue substantially similar regulations that apply to hand-propelled vessels:
(1)
Section 7.13(d)(4)(ii) of title 36, Code of Federal Regulations, regarding vessels on streams and rivers in Yellowstone National Park.
(2)
Section 7.22(e)(3) of title 36, Code of Federal Regulations, regarding vessels on lakes and rivers in Grand Teton National Park.
(b)
Wildlife-Dependent recreational use
Notwithstanding section 25.21(a) of title 50, Code of Federal Regulations, regarding National Elk Refuge, the use of hand-propelled vessels on rivers and streams in the National Elk Refuge shall be considered a “wildlife-dependent recreational use” as that term is defined in section 5(2) of Public Law 89–669 ( 16 U.S.C. 668ee(2) ).
On the surface it looks great. We can paddle on a couple of rivers that have been closed forever. However, does it open up too much? It does not stop on the Yellowstone River but all rivers in Yellowstone National park. The same with Grand Teton National Park, everything will be fair paddling game.
Honestly, I don’t know if that is good, great or bad. You need to read and investigate for yourself.
Here are some comments: Protection of parks requires self restraint and Lummis Boating Legislation for Yellowstone and Grand Teton Parks Misguided.
Do Something
Read, educate yourself and get involved.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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River Management Law Conference Kicks off Week of Education, Training and Networking
Posted: February 14, 2014 Filed under: Paddlesports, Rivers and Waterways | Tags: Colorado, Denver, Federal Energy Regulatory Commission, Managing Rivers in Changing Climes: Training Tomorrow’s River Professionals, National Environmental Policy Act, National Wild & Scenic River System, Risa Shimoda, River Management Society, RMS, The River Management Society Leave a comment
Legislative and Environmental Experts will Offer Management Tools and Blueprints
The River Management Society (RMS) announces its biennial education and training symposium, Managing Rivers in Changing Climes: Training Tomorrow’s River Professionals April 15-18, 2014 and its first time partnership with CLE International, producer of River Management Law an education conference April 14th. They will take place at the Renaissance Denver Hotel, Denver, Colorado.
Legal experts at the stand-alone Management Law Conference April 14th, led by Program Chair Lori Potter (Kaplan, Kirsch & Rockwell) will address important river protection issues and the types of river use that frame the challenges and opportunities facing communities throughout the West. “We are excited to partner with CLE for extensive training experience,” notes River Management Society Executive Director Risa Shimoda. “The future of our rivers will be prescribed by actions of those who own, use and manage them and RMS appreciates the opportunity to dig into the complexity of river management via this esteemed team of presenters.”
”To complement the CLE conference RMS’ Legal and Legislative track will review legislative and administrative water protection
Wild and Scenic Red River in Kentucky’s Clifty Wilderness, within the Red River Gorge. (Photo credit: Wikipedia)
tools by representatives of federal, state and environmental organizations,” continues Shimoda. “Veterans of river-related legal matters will discuss issues related to water rights, appropriation and conservation.”
RMS will offer the first public workshop on the Federal Energy Regulatory Commission (FERC) Form 80, and a ‘FERC 101’ overview of the hydropower licensing process. Registrants can learn how to write National Environmental Policy Act (NEPA) assessments and comment on Environmental Impact Statements (EIS) more effectively, and conduct Wild and Scenic Rivers Section 7 determinations. They will hear about successes and plans for sustainability from emerging watershed partnership groups, and about flood prevention, mitigation and recovery from municipal leaders such as keynote Mayor Karl Dean from Nashville, TN. Representatives from private, state and federal organizations will offer tips regarding how to find funding for river projects.
For details on the CLE Conference, visit http://www.cle.com. To view CLE conference information as well as the Legal and Legislative and other tracks Managing Rivers in Changing Climes: Training Tomorrow’s River Professionals visit http://www.river-management.org.
The River Management Society (RMS) is a national non-profit 501 (c) 3 organization dedicated to supporting professionals who study, manage and protect North America’s Rivers. RMS maintains the only comprehensive resource for packing human waste out from rivers; a growing library of ‘handy’ hydropower license summaries; Prepare to Launch! Guidelines for Designing and Building Launches for Carry-in Watercraft and a Career Center featuring a live feed of river-related professional opportunities.
For more information, contact Risa Shimoda, +1 301 502 6548, rms@river-management.org.
What do you think? Leave a comment.
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Copyright 2014 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, The River Management Society, RMS, Federal Energy Regulatory Commission, Managing Rivers in Changing Climes: Training Tomorrow’s River Professionals, National Environmental Policy Act, Risa Shimoda,
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River Management Society 2014 Conference: Managing Rivers in Changing Climes: Training Future River Professionals
Posted: February 1, 2014 Filed under: Rivers and Waterways | Tags: ASFPM, Association of Flooplain Managers, CLE, FERC, Floodplain Management, River Management Society, RMS Leave a comment
The Conference includes several opportunities for great training, April 14-18, 2014, Denver, Colorado
Registration is open. Visit the registration site for details, prices and more
Join us at the 12th biennial River Management Society week of training for agency managers, planners, watershed and watertrails practitioners, where you can update skills, planning tools and best practices to your desk or field-based job. This is an invaluable networking opportunity for those who study, teach and practice river skills and policy for agencies, non-profit organizations and private industry. PLUS: This year we offer a standalone Continuing Legal Education workshop, a one day seminar approved by the Association of Floodplain Managers, and a multi-day workshop taught by the Federal Energy Regulatory Commission (FERC) regarding FERC Form 80
Posters are still being accepted: you are cordially invited to submit an abstract here. See below for poster submission information.
Scholarships are available to members (for a year or more) in good standing. Apply here!
Click here for more information
Training Packages
One Day Trainings (Stand alone)
Legal Continuing legal education conference* presented by CLE International
Floodplain Management Seminar approved by the Association of State Floodplain Managers (ASFPM)**
Full RMS Event: April 15-17, 2014
Full RMS Event plus FERC Form 80 Training***: April 15-18, 2014
FERC Form 80 Training, standalone: April 16-18, 2014
*CLE International is pleased to offer a one-day stand-alone educational conference. Join us on Monday, April 14 for a full day of in-depth analysis of legal issues that are most important to professionals tasked with protecting and managing our nation’s rivers. Attendees will receive up to seven hours of continuing education credits while learning from leading experts. Tuition discounts available for RMS members, government and 501(c)(3) employees, and groups of two or more from the same organization. For program, pricing and registration, visit http://www.cle.com/RMS beginning January 3, 2014.
** This one day standalone training will feature five courses approved by the Association of Flooplain Managers (ASFPM) and approved for ten (10) CECs. Register for this standalone course on the RMS event site, to open by December 18, 2013.
*** This workshop entitled Getting the Most out of the Form 80: Tips for Quantifying Recreation Use & Gathering Better Data will be taught by Federal Energy Regulatory Commission staff and can be attended as a stand-alone workshop or as part of the full RMS training event. Registration for this workshop is on the RMS training event site, to open by December 18, 2013.
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, RMS, River Management Society, CLE, FERC, Floodplain Management, Association of Flooplain Managers, ASFPM,
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Want to work on the river? Enjoy rowing boats and helping the environment? There is a job for you!
Posted: January 30, 2014 Filed under: Rivers and Waterways | Tags: Boatman, Colorado, Colorado Endangered Fish Recovery project, Employment, Fish, Job, Small Craft Operator, United States Fish and Wildlife Service, US Fish & Wildlife Service, Whitewater Rafting Leave a commentColorado Endangered Fish Recovery project
English: Patch showing the logo of the U.S. Fish and Wildlife Service on an USFWS employee’s uniform. (Photo credit: Wikipedia)
It is hard work with long days when on the river. It is for the Colorado Endangered Fish Recovery project and you will see some awesome canyons and learn a lot about the endangered fish. The heart of the program is a shocking operation to check on the progress of the fish. So you have to row the heavy boats down the edge of the river unlike normal river running. So if you know of someone forward this to them. If selected you have to get what is called a DUNS number and go through a complicated process to get paid as the government has changed the way it pays these salaries, but I did it, so with a little patience anyone else can do it.
Small Craft Operator (boatmen) jobs for FWS
Below is a link to the FWS boat operator announcement. We are looking at hiring these positions in Vernal and Grand Junction. The announcement will be open for about 10 days from today. Please forward to anyone you think might be interested.
Thanks,
M. Tildon Jones, U.S. Fish & Wildlife Service, Vernal, UT
435.789.0351 x14
tildon_jones@fws.gov
R6-14-1025704-D
https://www.usajobs.gov/GetJob/ViewDetails/358861200
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Image of a Humpback Chub taken by the United States Fish and Wildlife Service (Photo credit: Wikipedia)
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, Whitewater Rafting, Colorado Endangered Fish Recovery project, Boatman, Employment, Job, Small Craft Operator, US Fish & Wildlife Service,
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Grand Canyon Private Boaters Association: If you are not a member you should be!
Posted: December 17, 2013 Filed under: Paddlesports | Tags: Boating, Private Boater, Rafting Leave a comment
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National Association of State Boating Law Administrators deadline extended on Basic Human Propelled (Paddlesport, etc.) Boating Knowledge Standards Call for Proposed Regulations
Posted: December 6, 2013 Filed under: Paddlesports | Tags: NASBLA, National Association of State Boating Law Administrators, Paddlesport Education Leave a commentComment periods for boating education standards extended through Jan. 1. If you have not reviewed the new standards and you are part of this industry you should. Now!
Public comment periods for two national boating education standards have been extended or re-opened through Jan. 1, 2014. Due to technical difficulties identified during the site registration process, National Boating Education Standards Panel Chair Jeff Johnson has announced additional 30-day periods to ensure the opportunity for public input, review and comment on the following:
· The P-1-20XX Basic Boating Knowledge Standard’s Public Review Period is re-opened through Jan. 1, 2014. All previously submitted comments remain active and DO NOT need to be re-submitted. These will be posted in a separate EXCEL file on this site ASAP for reference and review. Additional comments can be posted by any interested party.
· The H-1-20XX Basic Human-Propelled (Paddlesports, etc.) Boating Knowledge Standard’s Call for Proposed Revisions period, originally scheduled to end Dec. 2, is extended an additional 30 days through Jan. 1, 2014.
If you have questions or need assistance in any way, please contact ESP staff member Pamela Dillon.
Here is a link to the National Paddlesport Standards currently in effect (since 2009): http://nasbla.org/files/public/Educ/Approval/Standards/Paddlesports%20Standards-final%20-Jan%202009.pdf
These standards have been reformatted (and more numbers added for ease of reference) and are retitled as H-1-20XX Basic Human-Propelled (Paddlesports, etc.) Knowledge standards and reposted on this site for public review and comment: http://esp.nasbla.org/esp/index.cfm
Do Something
If you are in the paddlesports industry go find out what is changing in how we teach the sport. If you have a concern, register and comment!
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, Paddlesport, Education, Education Standards, NASBLA, National Association of State Boating Law Administrators, Paddlesport Education,
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National Association of State Boating Law Administrators deadline for National Paddlesports Education Standards is due
Posted: November 29, 2013 Filed under: Paddlesports | Tags: education, Education Standards, NASBLA, National Association of State Boating Law Administrators, Paddlesports Education Standards, Paddlesports Standards Leave a commentComments for Paddlesports Standards due Dec. 2
National Association of State Boating Law Administrators
NASBLA’sEducation Standards Panel has issued a Call for Proposed Revisions to the content of the most currently approved version of the National Paddlesports Education Standards (which went into effect Jan. 1, 2009). Submissions are encouraged from any party materially affected by the standard, including NASBLA members and nonmembers alike. The comment period closes on Dec. 2.
Input on the standard will be accepted exclusively via the EZ-ESP website. Instructions for submitting comments (including how to obtain login credentials for the EZ-ESP website) and documents containing the current standard, the reformatted standard and the Education Standards Panel Rules are available for download at http://esp.nasbla.org/esp.
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Copyright 2013 Recreation Law (720) Edit Law
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, NASBLA, National Association of State Boating Law Administrators, Education, Education Standards, Paddlesports Standards, Paddlesports Education Standards,
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Are You Familiar with the Dolores River? Then you should be a member of the Dolores River Boating Advocates
Posted: October 18, 2013 Filed under: Colorado, Rivers and Waterways, Whitewater Rafting | Tags: #BLM, Dolores, Dolores River, Fishing, Whitewater Leave a comment
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Last month, the long-awaited San Juan National Forest Plan and the Bureau of Land Management’s Tres Rios Resource Management Plan were released. These plans will help guide the management of the Dolores River for the next twenty years and beyond. Local stakeholder efforts will also play into the fate of the Dolores. And while the federal government is “shutdown,” local discussions about Dolores River management continue on subjects as varied as Land Use Codes, the Dolores River Valley Plan, and the Lower Dolores River Implementation, Monitoring and Evaluation Plan (Implementation Plan). This month, we at DRBA are diving deeper into the topic of native fish in the Lower Dolores River, and how enhanced flows can improve their natural habitat while simultaneously providing recreational opportunities. Re-establishing a flow regime that mimics historical hydrography is a vital step towards restoring the natural balance of the river. Colorado Parks and Wildlife Biologist Jim White joined us on The River Trip on KSJD this month to discuss the status of native fish in the Dolores River. Jim’s research and experience illustrates that mindful management of the river is warranted to save native species and habitat. He also pointed out the need to do this in concert with community water allocation needs. These efforts are symbiotic. As a civilization, we need to support healthy rivers, clean water, and strong natural processes as all of that, in turn, supports us. Native fish flows and whitewater rafting flows are also symbiotic in terms of being mutually beneficial, as discussed in the following feature by DRBA Board Member Sam Carter. Management plans offer prime opportunities to actualize a balance for the cultural ecology of the Dolores River watershed. Read on, and join us in our efforts and enthusiasm in protecting the Dolores River. *Links for italicized plans are at the bottom of the page.
We want to hear from you!
Recreation Law 