Stop the Draining of the Pudre River to Protect a Proposed Whitewater Park

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Hi Amazing Poudre River Lovers!

You’ve sent 450 emails to the Fort Collins City Council asking them to Protect the Poudre River by Actively Opposing the river-draining Northern Integrated Supply Project (NISP). Great work! Thank you! We are almost to our goal of 500!

As you know, the City is proposing to build a whitewater park in downtown Fort Collins. But, if NISP is built, it would drain the river to the point that the whitewater park would only be viable a few weeks per year.

It’s CRAZY to build a whitewater park and then drain the river that makes the whitewater park viable!

Please help reach the goal of 500 emails to City Council. Here’s the link! CLICK: http://savethepoudre.org/eblast/

Here’s what else you can do:

1. Attend the City’s “Open House” regarding NISP negotiation – (TOMORROW NIGHT) Monday, February 13, 5-7 p.m. at the Lincoln Center’s Columbine Room, 417 West Magnolia St.

2. Call key members of City Council: Councilmember Kristin Stephens: 970-217-5817; Councilmember Gerry Horak: (970) 217-2993; Mayor Wade Troxell: 970-219-8940

3. Attend, and speak at, Councilmember Horak’s “Listening Session” — 9:30-11:30 a.m., Friday, February 17 – Fort Collins Senior Center, 1200 Raintree Drive

4. Attend, and speak at, the City Council meeting on February 21st at City Hall, 300 LaPorte Ave.

Thank you for your work and support!

Gary Wockner, Director, Save The Poudre

Copyright © 2017 Save The Poudre: Poudre Waterkeeper, All rights reserved.
You are receiving this email because you signed up for information about the Cache la Poudre River on our website SaveThePoudre.org
Our mailing address is:Save The Poudre: Poudre WaterkeeperPO Box 20

Fort Collins, CO 80522

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

Negligence per se is an elusive legal issue that generally prevents a release to be effective as in this case. Understanding the issue for your state is important.

Citation Knarr v. Chapman School of Seamanship, 2000 U.S. Dist. LEXIS 5351

State: Pennsylvania, United States District Court for the eastern District of Pennsylvania

Plaintiff: Jean Knarr & Lester Knarr

Defendant: Chapman School of Seamanship

Plaintiff Claims: negligence per se

Defendant Defenses: release and plaintiff failed to plead enough facts to establish a negligence per se case

Holding: for the plaintiff

Year: 2000

Negligence per se cases are arising with more frequency. They are a way the plaintiff can beat the release in recreational activities. In most states, a successful negligence per se claim is not dismissed because of a release, and the plaintiff can go to trial. On top of that, Juries take a dim view of a defendant who did not follow the law or rules for his industry.

In this case, the plaintiff (wife) enrolled in a seamanship school with the defendant in Florida. (Thus the reason why the Federal District Court was hearing the case.)

 

The defendant filed a motion for summary judgment based on the release; the plaintiff had signed and argued the negligence per se claims of the plaintiff should be dismissed because the plaintiff failed to present evidence that the defendant had violated a rule or statute. This was the second motion for summary judgement; the first was over the issues of the release and the simple or ordinary negligence claims.

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

Florida’s law allows a release to stop a negligence claim. (See Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.; Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.; Release for bicycle tour wins on appeal but barely; Electronic release upheld in Florida federal court for surfing on a cruise ship, Florida statute that allows a parent to release a minor’s right to sue)

However, Florida does not allow a release to stop a negligence per se claim.

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

Under Florida’s law, negligence per se is defined as:

According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.”

Negligence per se under Florida’s law was defined broadly: Florida’s state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. Negligence per se was applied to violation of Florida Department of Health and Rehabilitative Service Rules, violations of administrative regulations, and FAA regulations. (Compare this to the limited application of negligence per se in a Colorado rafting case in 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.)

The issue here was whether any US Coast Guard regulation applied to this defendant and the ship the injury occurred upon and whether the regulation applied to the ladder, specifically.

Here the court found that the boat was of the size the regulation was applied to. The court also found the boat was “for hire” because the plaintiff had paid to be on the boat to take the seamanship course. The final issue was whether the regulation, which was a standard created by ANSI, (American National Standards Institute) applied in this case.

The court found the regulation was specifically adopted for situations, specifically like this:

One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic.

The reference was to the sinking of the Titanic.

The final issue was whether the claims of the plaintiff, as plead, fit the requirement for negligence per se, an injury the regulations were designed to prevent. Here again, the court found the pleadings were not specific, but outlined enough of the issues to meet the definitions of a ladder that was dangerous. This was based more on the failure of the defendant to show the ladder met the ANSI and subsequent US Coast Guard regulations.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some of which will, no doubt, be the subject of expert opinions.

Consequently, the case was allowed to proceed.

So Now What?

If you were to speculate, this boat was probably a sail boat created for some owner. It has been converted to a vessel for hire when the classes were offered by the owner. As such, no standard applied to the vessel as a pleasure vessel, when it was being built; however, now that it fit the regulations, it had to meet the regulations.

Another scenario could be the vessel was old enough that it was built before the regulations were in effect.

Both scenarios can be found in outdoor programs daily.  Land is purchased for a recreation program with buildings already on the land. No emergency exit from the second floor, no fire alarms, all could lead to losing a law suit.

A release is a great line of defense against claims, but fraud, gross negligence and as seen here, negligence per se will not be stopped by a release. Consequently, risk management and education is a never-ending requirement for a recreation provider to be on the lookout for.

For other articles, looking at Negligence per se issues see:

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability  http://rec-law.us/wEIvAW

10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.            http://rec-law.us/1njzlhf

If you really are bad, a judge will figure out a way to void your release         http://rec-law.us/Xyu8CZ

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Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Jean Knarr & Lester Knarr v. Chapman School Of Seamanship

CIVIL ACTION NO. 99-952

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2000 U.S. Dist. LEXIS 5351

April 14, 2000, Decided

April 14, 2000, Filed

COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.

For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.

JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: JACOB P. HART

OPINION

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

April 14, 2000

The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.

[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.

Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.

I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .

(Chapman Application/Registration Form).

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).

(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.

Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.

In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).

The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.

We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).

However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.

[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). 1 Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.

1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.

[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.

The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).

The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.

Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.

In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.

An appropriate order follows.

ORDER

AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE


De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro v. Odetah Camping Resort, Inc.

FBTCV126026625

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

2015 Conn. Super. LEXIS 2297

September 2, 2015, Decided

September 2, 2015, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: [*1] Michael P. Kamp, J.

OPINION BY: Michael P. Kamp

OPINION

MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

PROCEDURAL BACKGROUND

The defendant, Odetah Camping Resort, Inc., has filed a renewal of its motion for directed verdict and a motion to set aside the jury’s verdict.1 The trial commenced on April 28, 2015, and evidence concluded on May 6, 2015, when the defense rested its case. The jury received the charge on the law on May 6, 2015. On May 6, 2015, the jury returned a verdict for the plaintiff, Adelson Luiz DeCastro, Administrator of the Estate of Jose Luiz DeCastro, and awarded total damages of $229,155.96. Regarding the question of comparative negligence, the jury found the plaintiff’s decedent, Jose DeCastro, was 49% responsible for his own injuries.

1 The defendant originally moved for a directed verdict at the close of the plaintiff’s case in chief. At that time, the court reserved decision, and the defendant commenced its defense. On close of the defendant’s case, the matter was submitted to the jury.

The defendant filed its motion to set aside the verdict on May 15, 2015. The plaintiff filed its objection to the defendant’s motion [*2] on May 19, 2015. On June 22, 2015, the court heard the matter at short calendar and took the papers.

The defendant argues in its motion that the plaintiff failed to prove beyond the realm of surmise and speculation that the defendant’s negligence was the proximate cause of the death of the decedent. This argument is based upon a lack of evidence as to what actually caused the decedent to drown.

II

FACTS

After a trial, the jury could have found as follows. On July 7, 2011, the decedent and a group of friends went to the defendant resort located in Bozrah, Connecticut. In order to gain entrance, the decedent paid an entrance fee. The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just [*3] beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. The defendant did not provide lifeguards at the pool or lake swim area. A single sign was posted at one end of the beach area, indicating: “No Lifeguard on Duty. Swim at Your Own Risk.” No employees of the defendant directly supervised the lake swimming area.

On July 9, 2011, the decedent and his friend, Saulo Sousa, entered the designated swimming area for the purpose of swimming out to the trampoline just beyond the buoy line. When Sousa reached the rope line, he observed the decedent immediately behind him in the water. The depth of the water at this location was approximately six feet. As Sousa lifted the rope line to duck under it, he observed the decedent diving forward and under the rope. When Sousa reached the trampoline, he climbed on it but did not observe the decedent. After spending a few minutes on the trampoline, Sousa reentered the water and swam to the shore. After unsuccessfully attempting to locate the decedent, employees of the defendant [*4] were notified that he was missing. After a brief search, 911 emergency services were dispatched, and Bozrah firefighters and rescue personnel responded to the scene. When notified that the decedent was last seen in the designated swim area near the buoy line, firefighter Colin Laffey entered the water and located the decedent floating unresponsive just below the surface of the water just inside the buoy line. Laffey testified that he located the decedent in an area where the depth of the water was less than six feet. The decedent was brought to shore, and CPR was administered. The decedent was then transported by ambulance to Backus Hospital, but never regained consciousness and was pronounced dead. A postmortem autopsy determined the cause of death to be asphyxia due to submersion. The postmortem examination was negative for any signs of illness, traumatic injury, or any preexisting medical condition or disease. A toxicology examination was negative for the presence of any drugs, alcohol, or medication.

The decedent’s drowning was unwitnessed despite the fact that there were numerous people in the water and on the beach. Although other members of the decedent’s group, including his [*5] girlfriend, were on the beach adjacent to the swimming area, no one saw him in distress or struggling in the water. He was identified by his friends as a good or strong swimmer.

III

DISCUSSION

Practice Book §16-37 provides, in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” “Directed verdicts are not favored . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion . . . In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal [*6] quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). “A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn.App. 556, 565-66, 874 A.2d 259 (2005).

Likewise, “[a] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury.” (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010), rev’d on other grounds, Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 32 A.3d 318 (2011).

“[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] [*7] favor.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn.App. 447, 455-56, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury.” Murteza v. State, 7 Conn.App. 196, 208-09, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). “[I]t is not the function of [the trial] court to sit as the seventh juror when [it] review[s] the sufficiency of the evidence . . . rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [trier’s] verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the [trier] could reasonably have reached its conclusion, the verdict must stand, even if [the trial] court disagrees with it.” (Internal quotation marks omitted.) O’Connor v. Larocque, 302 Conn. 562, 612, 31 A.3d 1 (2011).

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under [*8] the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Insurance Company, 310 Conn. 768, 776-77, 83 A.3d 576 (2014).

The defendant’s primary argument is that no one [*9] witnessed the decedent’s drowning, and there was no evidence offered as to what caused him to drown. The defendant relies on Wu v. Fairfield, 204 Conn. 435, 528 A.2d 364 (1987). In Wu, the plaintiff’s decedent who was fifteen years old, went to Lake Mohegan, a freshwater lake, with her mother and two brothers for an afternoon of swimming. Id., 437. There was a designated swim area marked by a buoy line. At the time of the occurrence, there were four lifeguards on duty. Id. Those lifeguards had observed that the plaintiff’s decedent was a poor swimmer and had warned her twice to return to the shallow portion of the designated swim area. Id. When an approaching storm prompted the lifeguards to clear the water, the plaintiff’s decedent did not return to shore. Id. After a search, one of the lifeguards found the decedent’s body at the bottom of the lake in the designated swim area but beyond the shallow portion. Id., 437-38. The plaintiff alleged that the town and several of its employees, the lifeguards, were negligent in the performance of their duties. Id., 436. A jury returned a verdict for the defendants. Id. The plaintiff then filed a motion to set aside the verdict, which motion was denied. Id. In affirming the trial court’s denial of the plaintiff’s [*10] motion to set aside the verdict, the court held that “[w]hile it is undisputed that the decedent drowned, there was no evidence tying any negligence on the defendant lifeguards’ part to her death . . . Here, the plaintiff presented no evidence other than that the victim perished in an unwitnessed drowning. The plaintiff failed to establish an unbroken sequence of events causally flowing from the defendant lifeguards’ arguably negligent supervision to the decedent’s drowning.” Id., 440.

In this case, the plaintiff’s May 4, 2015 amended complaint contained two specifications of negligence as to the conduct of the defendant. The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so. In response to jury interrogatories submitted by the court the jury found that the defendant was negligent with regard to the second specification but not the first. With regard to the claim of negligence concerning encouraging [*11] swimmers to use the flotation devices, the plaintiff relied on testimony that the owner’s manual for the two devices contained warnings that recommended users wear life vests. Although life vests were available in a shed adjacent to the lake swim area, the defendant did not require guests entering the lake or using any of the flotation devices to wear them. In addition, the plaintiff argued that the defendant failed to properly supervise and monitor the swimming area and had an inadequate emergency rescue plan.

The plaintiff offered the testimony of Gerald Dworkin, an aquatic safety expert. Dworkin offered opinion testimony regarding the defendant’s lack of safety measures including its failure to have lifeguards monitoring the swim area. Dworkin was also critical of the defendant’s lack of an emergency safety plan. Dworkin did not, however, offer any opinion testimony as to what actually caused the decedent to drown. He affirmed that it was an unwitnessed drowning. In addition, although the owner’s manuals for the flotation devices recommended the use of life vests, the decedent was not using either device when he drowned; the little evidence there is indicates he never left the designated [*12] swim area. The flotation devices were located outside that designated area.

Here, as in Wu, the plaintiff presented no evidence other than that the decedent died in an unwitnessed drowning. There was no evidence as to what caused the decedent to drown. In the absence of any such evidence, any number of factual possibilities could explain this accident. Without any evidence as to what caused this unfortunate incident, only speculation and conjecture could link the plaintiff’s drowning to the negligent conduct of the defendant. The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.” Wu v. Town Of Fairfield, supra, 204 Conn. 441.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what [*13] caused this drowning is fatal to the plaintiff’s case.

IV

CONCLUSION

Because the plaintiff failed to establish that the negligent conduct of the defendant was the proximate cause of the decedent’s drowning, the defendant’s motion to set aside the verdict is granted. Judgment may enter for the defendant.

KAMP, J.


Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.

Aramark sued for parasailing accident when it booked the trip with an “affiliate.”

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

State: Nevada, United States District Court for the District of Nevada

Plaintiff: Jaclyn Cobb

Defendant: Aramark Sports and Entertainment Services, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2013

The plaintiff signed up to go parasailing on Lake Tahoe with Zephyr Cove Resort. Zephyr Cove Resort is described by the court as being an “affiliate of the defendant Aramark. Aramark is well known as a large concessionaire operating hotel and services in National Parks.

After signing up the plaintiff signed a release (waiver). The plaintiff went parasailing and was sailing when the weather turned bad. She was being reeled back to the boat when she struck her knee causing injury.

The plaintiff filed this claim against Aramark. (It is not stated what the relationship is between Aramark and Zephyr Cove Resort or why the plaintiff did not sue Zephyr Cove Resort.)

The defendant filed a motion for summary judgment which the court granted with this opinion.

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

Most legal decisions based where a motion for summary judgment is filed to review the requirements on what must be proved by the defendant (generally), for the motion to be granted. Generally, that occupies one to five paragraphs in the order. Most are either too succinct to explain the process or too wordy to make deciphering the process worth the effort. This court did a great job of explaining what the defendant must prove to succeed in its motion for summary judgment. The court then reviewed what the plaintiff must do to rebut the motion for summary judgment.

The party filing a motion for summary judgment must argue the facts, taken in the light most favorable to the opposing party when applied to the law show there is no genuine issue of material fact. Those facts must show that no reasonable trier of fact (a jury normally), could find any other way.

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.

To rebut the motion for summary judgment the non-moving party must point to facts in the record which so issues. The record is the evidence, depositions, responses to interrogatories and information that met the rules of evidence to be presented to the court.

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact.

If a reasonable mind could see the facts in a different way, then a motion for summary judgment is not appropriate. The issues must go to trial and be presented to a jury. The evidence presented in the motion must be genuine that means a reasonable jury can only see the evidence as pointing in one direction, saying one thing. The evidence that is not proved must be more than a scintilla; it must show there is a real dispute in how the facts can be seen.

Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff.

Consequently, when a court grants a motion for summary judgment, the evidence presented is such the court can see that evidence only proving one view of the issue and there is no other evidence that refutes that evidence sufficient to change the mind, or even make the person waiver in his or her thoughts on how the evidence is viewed.

In this case, the court found that admiralty law did apply in this case. Admiralty law is federal law that controls the seas or waters moving between two states. Lake Tahoe has shores on both Nevada and California so admiralty law was the law to be applied to the case.

The action giving rise to the admiralty law claim must be based on maritime activity. The Supreme Court and other federal courts have a very broad definition of maritime activity, and paragliding has been found to be a maritime activity.

An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity.

Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”)

Assumption of the risk is not a defense that can be used in a case covered by admiralty law. However, release is a valid defense.

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving personal injury. However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law.

Under Admiralty law, a release must meet a two-part test.

First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence

An unambiguous waiver is one that specifically bars the claims of the plaintiff and protects all the defendants. “A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit.”

The court then specifically pointed out that the injury the plaintiff is complaining of was specifically listed in the release. “Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, sprained or broken bones.

Nor does the release violate public policy. Voluntary recreational activities do not violate public policy under admiralty law.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy.

The waiver is also not an adhesion contract because again, it is for a voluntary recreational activity.

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services.

Finding that Admiralty law was the law to be applied, finding that admiralty law allowed the use of a release to stop claims for negligence and finding the release in this matter was valid, the court granted the defendants motion for summary judgment.

Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves the defendant Aramark of any liability arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

So Now What? 

This is another decision that you should keep handy if your recreational activity could be viewed as subject to admiralty law. Scuba diving, whitewater rafting, and as here parasailing, dependent on the location of the activity, can all be subject to admiralty law.

The decision is also good because its explanation of the law is simple and succinct. You want nothing better than to point to a sentence in a case to support your position that is easy to read and easily understood; no matter how intelligent the judges and attorneys are that may be reading it.

Of major importance for everyone is the court specifically pointed out that the injury the plaintiff was complaining about was one the release specifically pointed out as one that could occur in the release.

Whenever those two issues occur, the injury the plaintiff received was in writing in the release courts point it out. That should be a major flag to anyone writing a release that you need to list the risks of the activity in your release. You must list the major accidents that can occur like death and the common accidents that can occur, like sprains and strains for the activity, you are running.

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Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Jaclyn Cobb, Plaintiff, v. Aramark Sports and Entertainment Services, LLC, Defendant.

3:11-cv-0840-LRH-WGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

February 13, 2013, Decided

February 14, 2013, Filed

SUBSEQUENT HISTORY: As Amended March 18, 2013.

COUNSEL: [**1] For Jaclyn Cobb, Plaintiff: Angela D. Bullentini, Charles M Kilpatrick, Kilpatrick, Johnston & Adler, Carson City, NV.

For Aramark Sports and Entertainment Services, LLC, Defendant: Rachel K McLendon-Kent, Graeme A. Reid, Bauman Loewe Witt & Maxwell, Reno, NV; Terence Cox, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA.

JUDGES: LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

OPINION BY: LARRY R. HICKS

OPINION

[*1296] AMENDED ORDER

Before the court is defendant Aramark Sports and Entertainment Services, LLC’s (“Aramark”) motion for summary judgment. Doc. #28. 1 Plaintiff Jaclyn Cobb (“Cobb”) filed an opposition (Doc. #33) to which Aramark replied (Doc. #38). This Order amends Order #39. 2

1 Refers to the court’s docket number.

2 This Order is identical to Order #39, but with needed edits for punctuation and citation accuracy.

I. Facts and Procedural History

Plaintiff Cobb is seeking recovery for a knee injury allegedly sustained while parasailing with an affiliate of defendant Aramark.

On June 15, 2010, Cobb paid to go parasailing on Lake Tahoe through an operation ran by Zephyr Cove Resort (“Zephyr”). Before going on the boat for parasailing, Cobb signed a waiver of liability entitled Acknowledgment and Assumption of Risk and Waiver of Liability (“Waiver”). The waiver stated in relevant part:

In consideration of my being allowed to participate in the parasailing [**2] activities operated and conducted by [Zephyr], I hereby RELEASE and WAIVE . . . any and all claims that I may have . . . against [Zephyr], and any of [its] affiliates . . . I specifically RELEASE [Zephyr], and any of [its] affiliates . . . from . . . all claims for . . . injury or death to persons caused by negligence of any one of them arising out of my participation in the parasailing activities. I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned [*1297] parties’ negligence or from any other cause.

Doc. #28, Exhibit A.

After signing the waiver, Cobb boarded the parasailing vessel and, along with another family member, went parasailing in a tandem harness. At some point during the trip, adverse weather conditions, including high winds, caused the parasailing trip to be called short. As she was being reeled back into the boat Cobb struck her knee on the boat causing significant injury.

Subsequently, Cobb filed a complaint for negligence against Aramark. Doc. #1, Exhibit A. Thereafter, Aramark filed the present motion [**3] for summary judgment contending that Cobb expressly waived her right to sue. Doc. #28.

II. Legal Standard

Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” [**4] Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

III. Discussion

A. Applicable Law

In its motion, Aramark argues that this action, and thereby [**5] the express waiver, is governed by federal admiralty law. See Doc. #28. An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity. Charnis v. Watersport Pro, LLC, 2009 U.S. Dist. LEXIS 76022, *5-6 [*1298] (D. Nev. 2009) (citing Sisson v. Ruby, 497 U.S. 358, 365-66, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990)).

The court has reviewed the documents and pleadings on file in this matter and finds that this action falls within the court’s exercise of admiralty jurisdiction. First, the alleged injury occurred on Lake Tahoe, a navigable waterway that lies within the borders of Nevada and California. Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Charnis, 2009 U.S. Dist. LEXIS 76022, *6. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. See e.g., In the Matter of Skyrider, 1990 U.S. Dist. LEXIS 16510, *10 (D. Haw. 1990) [**6] (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”); UFO Chuting of Hawaii Inc. v. Smith, 508 F.3d 1189, 1193 (9th Cir. 2007) (holding that parasailing is an activity bearing a significant relationship to traditional maritime activities); Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“The operation of recreational boats, including pulling skiers or wakeboarders, bears a significant relationship to traditional maritime activity.”). Therefore, this action arises under the court’s admiralty jurisdiction and, as such, the court must apply substantive federal admiralty law to this action. Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“With admiralty jurisdiction comes the application of substantive admiralty law.”) (citing E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S 858, 864, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986)).

B. Assumption of the Risk

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving [**7] personal injury. See e.g., De Sole v. United States, 947 F.2d 1169 (4th Cir. 1991); Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975). However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law. See Charnis, 2009 U.S. Dist. LEXIS 76022, *10-11. Therefore, Aramark may raise the affirmative defense of express waiver in this action.

C. Express Waiver

In its motion, Aramark argues that the signed express waiver precludes the present action. See Doc. #28. Specifically, Aramark argues that under federal maritime law, pre-accident liability waivers are enforceable and may properly dispose of this action on summary judgment.

Under federal admiralty law, owners of recreational vessels may, through written waivers, disclaim liability for their own negligence. Charnis, 2009 U.S. Dist. LEXIS 76022, *11. A pre-accident waiver absolves a defendant of liability for recreational activities on navigable waters if the exculpatory clause is (1) clear and unambiguous; (2) is not inconsistent with public policy; and (3) is not an adhesion contract. [**8] Id. at 13.

The court has reviewed the documents and pleadings on file in this matter and finds that the signed waiver of liability is [*1299] enforceable. First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. See Doc. #33. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence.

A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit. See Charnis, 2009 U.S. Dist. LEXIS 76022. Here, the waiver specifically bars plaintiff from suing for her injuries. Doc. #28, Exhibit A (“I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned parties’ negligence or from any other cause.”). Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, [**9] sprained or broken bones.” Doc. #28, Exhibit A. Therefore, the court finds that the express waiver is sufficiently clear and unambiguous to cover Cobb’s injuries sustained while parasailing.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy. Charnis, 2009 U.S. Dist. LEXIS 76022, *13-14; In re Aramark Sports and Entertainment Services, LLC, 2012 U.S. Dist. LEXIS 123786, *21 (C.D. Utah 2012) (holding that maritime exculpatory clauses are enforceable when a party clearly absolves itself from liability for its own negligence).

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services. See e.g., Charnis, 2009 U.S. Dist. LEXIS 76022, *14-15; In re Aramark, 2012 U.S. Dist. LEXIS 123789, *15. Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves defendant Aramark of any liability [**10] arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #28) is GRANTED. The clerk of court shall enter judgment in favor of defendant Aramark Sports and Entertainment Services, LLC and against plaintiff Jaclyn Cobb.

IT IS SO ORDERED.

DATED this 18th day of March, 2013.

/s/ Larry R. Hicks

LARRY R. HICKS

UNITED STATES DISTRICT JUDGE


You probably are not liable, but the PR cost of not making sure your guests are going to be safe could swamp your business.

Strainer traps several and creates near drowning on Ohio river that is canoed regularly.

I first saw this from a FB post which described more than the article does.

Canoe liveries are big business in Ohio and the Midwest. They provide a great way to all types of people to get on a river and enjoy nature and the water. The Big Darby Creek in central Ohio is one of those rivers.

In this case a strainer stretched most of the way across the river. It caught canoe after canoe which eventually forced one woman under the strainer where she was held for several minutes. CPR brought her back and everyone was saved. However the harrowing minutes on the river, 911 calls and the press reported the story.

The article at the end identifies the canoe livery who had rented the boats.

Whether or not the livery had any knowledge of the problem in advance is not known. However this is a great teaching situation where you can see the bad public relations costing more than possible litigation. Ohio has great release law and even allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.

If you owned or ran a canoe livery should you send a boat down in the morning to check things out? Granted the tree could have fallen after the first staff boat went through and before the first rented canoe came down the river. However the odds are better that the tree fell overnight.

The next issue is whether the canoe livery had the right to remove the tree even if they did find it. I don’t remember Ohio water law enough to know.

If you know of the situation, should you inform you guests? Could you have posted a sign upstream of the strainer? What else can you do?

See: 9 canoeists pulled from Big Darby; 1 seriously hurt

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

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