Morgan et al., v. Ohio Conference of the United Church of Christ et al., 2012-Ohio-453; 2012 Ohio App. LEXIS 385

Posted: April 7, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Ohio, Summer Camp | Tags: assumption of the risk, Chaperone, Hike, Night Hike, Ohio, Primary Assumption of the Risk, Stream Crossing | Leave a comment

Brian Morgan et al., Plaintiffs-Appellants, v. Ohio Conference of the United Church of Christ et al., Defendants-Appellees.

No. 11AP-405

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

2012-Ohio-453; 2012 Ohio App. LEXIS 385

February 7, 2012, Rendered

PRIOR HISTORY: [**1]

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CVC-03-4516).

DISPOSITION: Judgment affirmed.

COUNSEL: Rourke & Blumenthal, LLP, Kenneth S. Blumenthal and Jonathan R. Stoudt; Cloppert, Latanick, Sauter & Washburn, and Robert L. Washburn, for appellants.

Philipp & Gregory, Ronald D. Gregory and Jeffrey T. Peters, for appellees.

JUDGES: DORRIAN, J. KLATT and SADLER, JJ., concur.

OPINION BY: DORRIAN

OPINION

(ACCELERATED CALENDAR)

DECISION

DORRIAN, J.

[*P1] Plaintiffs-appellants, Brian Morgan (“Morgan”) and his wife Amie Morgan (collectively “appellants”), appeal from the April 4, 2011 judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, Ohio Conference of the United Church of Christ (“OCUCC”) and Templed Hills Camp and Conference Center (“Templed Hills”) (collectively “appellees”). For the following reasons, we affirm.

[*P2] On November 12, 13, and 14, 2007, Morgan was scheduled to attend the Nature’s Classroom program at Templed Hills as a teacher chaperone for sixth grade students of Worthington City Schools. The school district contracted with the owner of the site, OCUCC, to send the students. The contract set forth a fee of $7,565 for the group’s participation. (Affidavit of Mark Glassbrenner, [**2] ¶4; Exhibit A-A to Affidavit.) On the evening of November 13, Morgan volunteered to act as a chaperone on one of the group’s night hikes. Morgan had chaperoned students annually from approximately 2002 to 2007 and attended the night hike every year. The night hike had originally been scheduled for the evening of November 12, but was postponed to the second evening due to rain. (Affidavit of Kristi Patrick, ¶6; Affidavit of Kathy Mikkelson, ¶6.)

[*P3] The night hike was led by Matthew Marsh (“Marsh”), a Nature’s Classroom instructor. Marsh testified that the purpose of the night hike was to use your other senses when your eyes were not as heightened as during the daylight. Marsh picked the trail and had been using that same trail for the night hikes he had been leading twice a week for the last seven months. It was an established trail and wider than shoulder length. Other trails on the property were harder to traverse. Marsh stated that the evening was a clear night, not cloudy, and the moon was out so the trail could be seen. The adults were also told to bring flashlights.

[*P4] The group met at approximately 7:30 p.m. and started with a game called “Bat & Moth,” where one child is blindfolded [**3] and the children attempt to escape. It is similar to the game Marco Polo. The game lasted approximately 20 to 25 minutes, after which the group entered the woods. After several minutes of hiking, they had to cross a creek bed, but it was a receding creek so there was not much water in it. Marsh stood in the middle of the creek bed on a rock with his flashlight and helped every child cross by holding their hand, and then he helped Morgan cross. While Marsh was counting the kids on the other side of the creek, he saw Morgan shift his weight and fall on his stomach. Marsh tried to call his supervisor on his radio and his cell phone but could not reach her. Then he called 911. When the EMTs arrived, Marsh took the students to an area away from Morgan.

[*P5] Morgan testified to a slightly different version of facts. He had never been on that particular trail and thought it was very overgrown. He was not advised to take a flashlight on the hike and remembered the night being cloudy. Morgan testified that as he approached the creek Marsh was there to help him cross and had a flashlight. Morgan did not remember specifically, but thinks he used Marsh’s shoulder to step on a tree stump or rock as [**4] he took a long stride to cross the creek. After a few seconds, Marsh gave some directions for the next activity and Morgan took a step with his right foot, lost traction and fell. He knew immediately that he was seriously injured. Morgan suffered severe injuries to his left arm and shoulder. Morgan testified he had to ask Marsh to call 911 several times before Marsh called them.

[*P6] Morgan and his wife filed a complaint against OCUCC and Templed Hills as the owners and operators of the site and the employers of Marsh for damages Morgan suffered resulting from Marsh’s negligence, as well as for Amie Morgan’s loss of consortium. A stipulation of dismissal pursuant to Civ.R. 41 was filed.

[*P7] The claim was refiled on March 22, 2010. Appellees filed a motion for summary judgment, contending that appellants’ claims were barred by the affirmative defense of primary assumption of the risk and by the Ohio recreational user statute, R.C. 1533.181. Appellees argued that Morgan assumed the risk of his injury by voluntarily participating in the night hike and that, under the circumstances, appellees owed no duty to protect Morgan from injury. Appellees also argued that Ohio’s recreational statute, R.C. 1533.181, [**5] barred his claims because Morgan was a recreational user and, as such, appellees owed no duty to Morgan as a hiker pursuant to the statute.

[*P8] In opposition to appellees’ motion, Morgan argued that the doctrine of primary assumption of the risk does not bar his cause of action, as the dangers presented by Marsh’s negligence were not inherent to hiking. Also, Morgan argued that the recreational user statute was inapplicable to these facts because the negligence alleged was based on the negligence of an employee, not a theory of premises liability. Additionally, Morgan claimed he was not a recreational user because he was a business invitee.

[*P9] By decision and entry filed April 4, 2011, the trial court granted appellees’ motion for summary judgment finding that the doctrine of primary assumption of the risk barred appellants’ claims. The doctrine removed any duty on appellees’ part to protect Morgan from risks inherent to the activity of night hiking.

[*P10] Appellants assert one assignment of error on appeal:

The trial court erred in granting the motion for summary judgment filed by the Appellees Ohio Conference United Church of Christ and Templed Hills holding that the doctrine of primary assumption [**6] of the risk bars Plaintiffs from recovering on their claims for negligence and loss of consortium.

[*P11] In their assignment of error, appellants challenge the granting of the motion for summary judgment, contending that the doctrine of primary assumption of the risk is inapplicable to these facts. [HN1] By asserting a negligence action, appellants were required to prove by a preponderance of the evidence that appellees owed them a duty of care, that the duty was breached and that the breach proximately caused Morgan’s injuries. Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). Under the law of negligence, a defendant’s duty to a plaintiff depends on the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 1992 Ohio 42, 597 N.E.2d 504 (1992).

[*P12] [HN2] The doctrine of primary assumption of the risk has often been applied to cases involving sporting events and recreational activities. Crace v. Kent State Univ., 185 Ohio App. 3d 534, 2009 Ohio 6898, ¶12, 924 N.E.2d 906, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008 Ohio 1421, ¶8, 2008 WL 802722, citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 6 Ohio B. 170, 451 N.E.2d 780 (1983). Whether to [**7] apply the affirmative defense of primary assumption of the risk presents an issue of law for the court to determine. Crace at ¶12, citing Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 435, 1996 Ohio 320, 659 N.E.2d 1232 (1996). We therefore review the trial court’s decision de novo. Crace at ¶12, citing Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St. 3d 521, 523, 1996 Ohio 298, 668 N.E.2d 889 (1996), citing Indus. Energy Consumers of Ohio Power Co. v. Pub. Utils. Comm., 68 Ohio St. 3d 559, 563, 1994 Ohio 435, 629 N.E.2d 423 (1994).

[*P13] [HN3] Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries. Crace at ¶13, citing Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006 Ohio 3656, ¶12, 857 N.E.2d 1255. The doctrine is based on the fiction that the plaintiff has “tacitly consented” to the risk of injury inherent in the activity. Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37, 518 N.E.2d 1226 (10th Dist.1987). The rationale behind the doctrine is that certain risks are so intrinsic in some activities that the risk of injury [**8] is unavoidable. Crace at ¶13, citing Collier. The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.” Santho at ¶12.

[*P14] [HN4] The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages. Crace at ¶15, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 144, 2004 Ohio 379, 802 N.E.2d 1116, citing Prosser & Keeton, Law of Torts (5th Ed.1984) 496, Section 68; see also Gallagher at 431, citing Prosser & Keeton, 496-97, Section 28 (“Primary assumption of risk ‘is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action.'”). Primary assumption of the risk serves to negate the duty of care owed by the defendant to the plaintiff. Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010 Ohio 1390, ¶18, 2010 WL 254597. “Because a successful [**9] primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.” Id. at ¶21, citing Gallagher at 431-32.

[*P15] [HN5] With the doctrine of primary assumption of the risk, the injured plaintiff’s subjective consent to and appreciation for the inherent risks of the recreational activity are immaterial to the analysis. Crace, 185 Ohio App. 3d 534, ¶16, citing Gentry at 144. The types of risks inherent to an activity are those risks that are foreseeable and customary risks of the sport or recreational activity. Deutsch v. Birk, 189 Ohio App. 3d 129, 2010 Ohio 3564, ¶12 (937 N.E.2d 638, 12th Dist.), citing Thompson v. McNeill, 53 Ohio St.3d 102, 104-106, 559 N.E.2d 705 (1990). In accordance with these principles, this court held in Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307, 1997 Ohio App. LEXIS 2527, 1997 WL 324175 (June 12, 1997), that “primary assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct. If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.” 1997 Ohio App. LEXIS 2527, [WL] at *4. [**10] “The law simply deems certain risks as accepted by the plaintiff regardless of actual knowledge or consent.” Crace at ¶16. The focus in primary assumption of the risk is on the defendant’s conduct, whether such conduct was reckless or intentional. Gentry at ¶9.

[*P16] In the instant case, the trial court noted that hiking is a recreational activity to which the doctrine applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night. (Apr. 4, 2011 Decision, 2.) Appellants argue that primary assumption of the risk does not apply to these facts because the risks which led to the injury in this case could have been eliminated if Marsh had chosen a different trail. However, this is essentially a claim that Marsh’s conduct was reckless. In Marchetti v. Kalish, 53 Ohio St.3d 95, 100, 559 N.E.2d 699 (1990), fn. 3, the Supreme Court of Ohio cited the comments f and g to Section 500 of the Restatement of Torts 2d, 590, which defined the three mental states of tortious conduct, as follows:

f. Intentional misconduct and recklessness contrasted. [HN6] Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act [**11] to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.

g. Negligence and recklessness contrasted. [HN7] Reckless mis-conduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with [**12] knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

[*P17] Appellants argue that Marsh should have chosen a different path for the hikers that evening. However, appellants did not allege that Marsh was reckless in choosing that path. The trial court specifically found that [HN8] hiking, especially night hiking, involves the risk of tripping, slipping and falling. Hiking does involve these risks. Morgan volunteered to participate in the night hike and assumed these risks. The court in Shaner v. Smoot, 7th Dist. No. 712, 2001 Ohio 3429, 2001 WL 1243920, found that persons involved in recreational activities assume the ordinary risks of the activity and the failure to warn of the ordinary risks does not subject one to liability. In Shaner, the plaintiff was injured [**13] while riding a motorcycle in tall grass with tree stumps scattered throughout the area. The plaintiff was aware that there were tree stumps in the area where he was riding. However, the court found that the risk of hitting a tree stump was an ordinary risk of riding a motorcycle in such a location, and the defendants could not be liable for failure to warn of an ordinary risk assumed by the plaintiff.

[*P18] Appellants concede that there are risks inherent in hiking that cannot be avoided. However, appellants contend that the risks which led to Morgan’s particular injury could have been avoided if Marsh had picked a trail which was better maintained with less-demanding obstacles. Thus, appellants argue, implied assumption of the risk is more appropriate to these facts, which has been merged into Ohio’s comparative negligence statute, R.C. 2315.19. However, these risks were not risks out of the ordinary for night hiking.

[*P19] In California, the courts have addressed similar issues and applied primary assumption of the risk, finding that a defendant is only liable for a plaintiff’s injuries if the defendant’s conduct is reckless or totally outside the range of the ordinary activity involved in the [**14] sport or activity. In Andia v. Full Service Travel, S.D.Cal. No. 06cv0437 WQH (JMA), 2007 U.S. Dist. LEXIS 88247, 2007 WL 4258634 (Nov. 29, 2007), the plaintiff was a passenger on the defendant’s cruise ship and participated in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike. The plaintiff slipped on one of the rocks and fell, fracturing her foot. She filed a negligence action, and the court found that the doctrine of primary assumption of the risk applied, negating the defendant’s duty to prevent the plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

[*P20] In Kane v. Natl. Ski Patrol Sys., Inc., 88 Cal.App.4th 204, 209, 105 Cal.Rptr.2d 600 (2001), a ski instructor led participants in a skills clinic for a voluntary ski patrol. The participants were reluctant to proceed to the most difficult portion of the trail, which was icy and contained trees, rocks, and stumps, but the instructor encouraged them to go. The two plaintiffs were injured, one fell to his death and the other one suffered a broken leg. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of the risk applied, negating the defendant’s [**15] duty of care. The court held that [HN9] “an instructor’s assessment errors–either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of the conditions–are in no way ‘outside the range of the ordinary activity involved in the sport.'” Id. at 214.

[*P21] Similarly, here, any assessment error in the subjective judgment of the path chosen by the Nature’s Classroom instructor, if any, is not outside the range of the ordinary activity involved in night hiking. As we have said, tripping, slipping, and falling are inherent risks of night hikes, regardless of the trail chosen.

[*P22] In Kalter v. Grand Circle Travel, 631 F.Supp.2d 1253 (C.D.Cal.2009), the plaintiff suffered serious injuries when she fell while hiking at Inca ruins at Machu Picchu. The plaintiff filed a negligence action against the vacation tour operator, but the court applied the primary assumption of the risk doctrine, finding that hiking across uneven and challenging terrain is an inherent risk when hiking in ancient ruins, and inherent in this activity is the risk that one will fall and become injured.

[*P23] This case law from California is similar to our Ohio law. Morgan attempts [**16] to argue that the conditions which led to his injury, attempting to cross a creek up a slippery embankment in dark, wet conditions, were not inherent to hiking. However, Morgan had already crossed the creek when he fell, and the dark is inherent in night hiking regardless of the trail chosen, and the ground was wet because it had been raining the day before. That was the reason the hike had been postponed. Despite Morgan’s attempt to argue that the risks were heightened, we find, under these facts, that these risks were inherent risks to night hiking.

[*P24] Appellants rely on Byer v. Lucas, 7th Dist. No. 08AP-351, 2009 Ohio 1022, 2009 WL 581710, to argue that the risks involved here outweigh the ordinary risks involved in the recreational activity that the plaintiff was engaged. In Byer, the plaintiff filed a negligence action against the owner and driver of a tractor pulling a hay wagon as part of party festivities. The defendant was drinking alcohol at the party. The plaintiff was riding in the wagon. The defendant stopped the wagon at the top of a steep hill and advised the passengers that they could get out of the wagon and either walk down the hill or wait to be picked up by a truck [**17] to return to the party. Apparently, the plaintiff did not hear the warning and remained on the wagon. The defendant lost control of the wagon, and plaintiff was ejected and treated for severe injuries. Plaintiff filed suit alleging negligence and intentional and reckless conduct. On appeal, the court found there were risks that were not ordinary, customary, or foreseeable to a hayride.

[*P25] Ordinary risks for a hayride include “getting scratched by tree braches [sic], being bounced around on a wagon, and even losing one’s balance and falling off the wagon.” Id. at ¶30. In Byer, however, the court found risks that were out of the ordinary for a hayride, including the choice of route, the driver control and severe injuries. The driver chose to drive down the steep hill while another driver took a safer route. The tractor and wagon careened down the hill out of control. Many passengers were thrown from the wagon. Finally, the plaintiff suffered severe injuries including cuts to her head, requiring stitches, and two segments of her tailbone were fractured.

[*P26] The choice of route, down a steep hill, the out-of-control nature of the ride and the injuries the plaintiff received were not risks that [**18] would be expected from a hayride. The court found that “a farm tractor and its wagon cascading down a steep hill out of control and jackknifing to a stop throwing passengers from it is not an inherent risk of a hayride.” Id. at ¶39. Thus, the court found primary assumption of the risk inapplicable. But Byer is distinguishable from the case at hand. The court in Byer found the risks were not inherent to the recreational activity, whereas here, we find the risks were inherent to night hiking. Also in Byer, the plaintiff alleged that the defendant’s conduct was intentional or reckless. Here, the only allegation is that Marsh’s conduct was negligent. Thus, the facts of Byer distinguish it from the facts at hand.

[*P27] Under the doctrine of primary assumption of the risk, appellees owed no duty to protect appellants from the inherent risks of injury related to the night hike. Since the primary assumption of the risk negates the duty element of appellants’ negligence claim, appellants are precluded from making a prima facie case of negligence, and the trial court did not err in granting appellees’ motion for summary judgment. Amie Morgan’s claim also fails because it is dependent upon her husband’s [**19] successful claim. Appellants’ assignment of error is overruled.

[*P28] For the foregoing reasons, appellants’ assignment of error is overruled, and we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and SADLER, JJ., concur.

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In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

Posted: April 7, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, Ohio, Summer Camp | Tags: Assumption of risk, assumption of the risk, Chaperone, Hike, Night Hike, Ohio, Primary Assumption of the Risk, Recreation, Stream Crossing | 1 Comment

This decision held that falling down while hiking at night was an inherent risk of hiking, especially at night.

Morgan et al., v. Ohio Conference of the United Church of Christ et al., 2012-Ohio-453; 2012 Ohio App. LEXIS 385

Date of the Decision: February 7, 2012

Plaintiff: Brian Morgan and his wife Amie Morgan

Defendant: Ohio Conference of the United Church of Christ (“OCUCC”) and Templed Hills Camp and Conference Center

Plaintiff Claims: negligence

Defendant Defenses: defendant assumed the risks of hiking at night, falling was an inherent risk of hiking

Holding: for the defendants

Ohio has a statute that requires kids to receive some of their education about the outdoors in the outdoors. This law was passed in the early 70’s. I know I was a camp counselor for one of these trips as a senior in high school.

This case comes from a school group going to a camp for outdoor classroom. The plaintiff had done this for five consecutive years, and for five years had participated as a chaperone on the “night hike.” During the night hike, after crossing a stream the plaintiff fell injuring his shoulder.

The plaintiff sued. The defendant camp filed a motion to dismiss claiming the plaintiff assumed the risk, which was granted by the court and this appeal followed. Due to the evidence presented the appellate court viewed the motion as a motion for summary judgment.

Summary of the case

The Ohio Appellate court extensively reviewed Primary Assumption of the Risk under Ohio Law.

Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries. The doctrine is based on the fiction that the plaintiff has “tacitly consented” to the risk of injury inherent in the activity. The rationale behind the doctrine is that certain risks are so intrinsic in some activities that the risk of injury is unavoidable. The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the game.”

The effect of a court finding that the plaintiff assumed the risk as defined, by Primary Assumption of the Risk, is a complete bar to the plaintiff’s claims.

The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.

The court then explained how Primary Assumption of the Risk worked to stop a claim by the plaintiff.

Primary assumption of risk ‘is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action. Primary assumption of the risk serves to negate the duty of care owed by the defendant to the plaintiff. “Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.”

To prevail at trial, the plaintiff has to make a prima facie case. That means the plaintiff has to plead and prove enough facts to prove their case. If the defendant or the court can show the risks of the activity which caused the injury to the plaintiff were inherent to the activity, then the plaintiff is prevented from even making his or her case.

The risks of the activity that are sufficient to prove Primary Assumption of the Risk are “…types of risks inherent to an activity are those risks that are foreseeable and customary risks of the sport or recreational activity.”

The telling issue, as the court explained, is not of the actions of the parties but of the risk. “If the activity is one that is inherently dangerous and from which the risks cannot be eliminated, then a finding of primary assumption of [the] risk is appropriate.”

The court also looked at the defendant’s side of the facts. “The focus in primary assumption of the risk is on the defendant’s conduct, whether such conduct was reckless or intentional.” If the conduct of the defendant was not reckless or intentional, if the defendant did not do anything that increased the risk to the injured plaintiff in a reckless or intentional way than the defense stands.

In the instant case, the trial court noted that hiking was a recreational activity to which the doctrine applies, and hiking contains an inherent risk of slipping, tripping or falling that cannot be eliminated, even more so with hiking at night.

The court then looked at how Ohio defines tortious conduct. It came from the plaintiff’s argument that the defendant increased the risk by reckless choosing the trail that the plaintiff fell on.

Intentional misconduct and recklessness contrasted. Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.

Negligence and recklessness contrasted. Reckless mis-conduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Because the conduct of the employee, the guide of the night hike, was not intentional or reckless, the plaintiff was prevented from brining his claims because of the defense of Primary Assumption of the Risk.

So Now What?

The issues you need to understand when looking at the risks of outdoor or recreational activities are which risks are of what type. Those risks that are not inherent in the activity are the ones that you are at the greatest risk of losing a lawsuit over unless you can prove the guest knew and assumed the risks or released you from their injury prior to the activity.

This does not mean you should not inform your guests of all the risks. On the contrary, knowledgeable guests are happier guests and usually injury-free guests. Any injury is a problem for you no matter how small and a problem for the entire group all the time.

What this means is when you list the risks of the activity you need to make sure you know which ones may need special attention for your guests. Those they do not recognize or understand which may include some inherent risks, and those that are obvious.

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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Ohio Zip Line Association meeting to deal with Ohio Department of Agriculture wanting to control Zip Lines in the State

Posted: April 5, 2014 | Author: Recreation Law | Filed under: Ohio, Zip Line | Tags: Canopy Tour, Columbus Ohio, Insurance, Ohio, Ohio Zip Line Association, zip line, Zip Lines | Leave a comment

Join now and fight or forever hold your piece

Some of you may know that in the state of Ohio the Department of Agriculture has been discussing creating legislation for zip

lines. Some of the owners of Zip Line and Canopy Tours in the state have gotten together and formed the Ohio Zip Line Association. As a group we have been working with the state to figure out where zip lines may or may not fit with their legislation.

We wanted to send an email notifying all interested parties that we will be holding an open meeting of the Ohio Zip Line Association for anyone who may want an update of what is going on in Ohio, or anyone who may want to become members of our group.

The next Ohio Zip Line Association meeting, it will be held on:

April 18, 2014 at 1:00 pm

Location:

3347 McDowell Rd.

Grove City, OH 43123

If you would like to be a part of the meeting, but cannot attend, you can use the following call in number:

Dial +1 (312) 757-3131+1 (312) 757-3131

Access Code: 130-237-621

Audio PIN: Shown after joining the meeting

Meeting ID: 130-237-621

Feel free to email me off-list if you have any questions.

Lori Pingle

Owner

ZipZone Canopy Tours

Board President

Ohio Zip Line Association

Direct: 614-906-5674614-906-5674

http://www.zipzonetours.com

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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Rules (and laws) don’t control behavior. This school district it does the exact opposite, the more rules the more bad behavior

Posted: April 3, 2014 | Author: Recreation Law | Filed under: Minors, Youth, Children | Tags: Kids, Laws, playground, Principal, Regulations, Rules, Schools | Leave a comment

No rules also increased student attentiveness, increased their creative side and stopped bullying. Kids were too busy having fun to be a problem.

This is an amazing article. Here are some quotes from the article and the principle which in this day and age in the US is sort of mind blowing.

Fewer children were getting hurt on the playground. Students focused better in class. There was also less bullying, less tattling. Incidents of vandalism had dropped off.

The parent continued: “I just wanted to make sure you don’t change this play environment, because kids break their arms.”

This is my favorite quote!

“I’ve been the principal who’s stood there and said ‘Oy, kid! Get off your bike! You’ve got to walk your bike!’ Then I’d go away and think ‘Why the hell did I say that?’”

Don’t ride your bike you may get hurt! Why did the kids’ parents buy the child a bike? We know it was not to get hurt, so why can’t the kid ride a bike.

But the results spoke for themselves, he said. The students weren’t hurting themselves — in fact, they were so busy and physically active at recess that they returned to the classroom ready to learn. They came back vibrant and motivated, not agitated or annoyed.

Children don’t hurt themselves because they’re testing their boundaries, Mr. McLachlan said. They don’t set out to recklessly self-injure, though it may happen in the process of finding their footing.

Who are the rules for? Adults! Kids’ don’t want rules; kids don’t remember rules and kids work hard to ignore rules. Obviously the only reason to have rules is because adults like rules. Wait that does not make sense. It must be because adults believe that rules work. Wait, our prisons are full and overcrowded. Why do we have rules?

So many of the rules, he said, are “ridiculous,” and designed to soothe adults. That said, there are still limitations to the two, 40-minute long free play breaks each day.

If a kid is hurt breaking a rule then the adults have an excuse.

· It’s not my fault

· The kid deserved it he broke the rule

This principal is amazing. Read this quote!

Mr. McLachlan said. “One of the rules I said facetiously is kids aren’t allowed to hurt other people. But in fact they are. … If you hurt somebody in a game where you are playing hard, or a boxing match or a stone-throwing competition, for me it’s absolutely fine — as long as the other person was willing to get hurt.”

The results from the principals thinking?

He knew children might get hurt, and that was exactly the point — perhaps if they were freed from the “cotton-wool” in which their 21st century parents had them swaddled, his students may develop some resilience, use their imaginations, solve problems on their own.

This is my favorite statement from a different perspective. People don’t sue for money, they sue because they have bills to pay.

Kiwi parents are much less likely to sue a school if a child is injured anyway, he said, partly because a litigious culture just doesn’t exist and also because New Zealanders’ health care is fully paid for by the state if they’re victims of an accident.

It gets pretty absurd when we make playgrounds safe and then build climbing walls and ropes courses for adults to go have fun!

Read this article!When one New Zealand school tossed its playground rules and let students risk injury, the results were surprising

Here are some more articles exploring these concepts.

Year in Ideas: The risks of overprotective school policies

Return of risk: The growing movement to let kids play like kids

Some articles I’ve written about the subject:

An example of adults and money getting in the way of kids has fun

Is being overprotective putting our kids at risk

This article takes a real look at the risks parents allow their children to face

What do you think? Leave a comment.

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Really neat assumption of the risk agreement. But will it work? Should it be a release?

Posted: April 2, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, Paddlesports | Tags: Acknowledgement of Risk, assumption of the risk, Florida, Release, WaterTribe | Leave a comment

Without 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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Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball. However, language of the decision may apply to well written releases to stop all claims for negligence.

Posted: March 31, 2014 | Author: Recreation Law | Filed under: Indiana, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: base, Brian Thompson, Indiana, Inherent Risk, Minor, Negligence, parent, Plaintiff, Release, Sliding, softball, Summary judgment, YMCA | 3 Comments

Decision appears to add Indiana to the list of states were a parent can sign away a minor’s right to sue for injuries.

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Date of the Decision: August 31, 2012

Plaintiff: Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant

Defendant: Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson

Plaintiff (Defendant on Appeal) Claims: negligent and violated its duty to protect Taylor by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard

Defendant Defenses: Release

Holding: Release signed by the mother of the injured plaintiff (defendant on appeal) barred claims for the inherent risks of playing softball

Again, the plaintiff on appeal was the defendant in the trial court. The defendant at the trial court level filed a motion to dismiss. The motion was denied, and the defendant appealed that decision. Because of that timeline, the defendant became the plaintiff on appeal. Because of the confusion, I’ll just refer to the parties by their names: YMCA and Thompson.

The mother of Thompson, 17 years old at the time of her injury, signed a release to allow her daughter to play softball. The release was quite bad. It did not contain solid language, the word release, or explain any risks except the inherent risks of softball. The trial court rejected the YMCA’s argument and denied its motion for summary judgment based on the release.

The YMCA appealed the decision to the Indiana Appellate Court which reversed the decision.

Of note and of interest, Indian defines negligence in three steps, not the normal four steps as defined by the appellate court in this case.

In order to prevail on a claim of negligence, a plaintiff is required to prove:

(1) a duty owed by the defendant to the plaintiff;

(2) a breach of that duty by the defendant; and

(3) an injury to the plaintiff proximately caused by the breach.”

Basically, Indiana combines the majority third and fourth step into Indiana’s third step to define the requirements to prove negligence.

Summary of the case

Thompson first argued that an Indiana statute required any release for a minor to be approved by the court before it became effective. Many states require court approval of the settlement of the claims of minors.

The court quickly dismissed this argument because the statute in question was part of the probate law of Indiana and only dealt with post injury claims. Thompson did not raise any other arguments against the release so the court declared the release valid.

The court then went through the requirements for a valid release under Indiana’s law.

It is well established in Indiana that exculpatory agreements are not against public policy. “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically and explicitly refer[s] to the negligence of the party seeking release from liability.'” An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Furthermore, an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity.

Of greater note was this statement from the court. “The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.”

This may lead you to believe, and I believe properly that a properly written release would top a minor’s claim for negligence under Indiana Law.

The court concluded the release signed by the mother did not release the YMCA for all negligent acts because it was written so poorly. However, it will release the YMCA for what was stated in the release, the inherent risks of softball.

The court then reviewed whether sliding into a base was an inherent risk of softball.

So Now What?

It appears that Indiana will allow a parent to sign away a minor’s right to sue. A well-written release, including the magic word negligence, which identifies the risks other than the inherent risks, would stop a claim for negligence.

A well-written release would have eliminated half of this decision, maybe even the appeal. If the proper language, the magic word negligence and a broader definition of the risks were in the release, this case would have been decided faster and with less worthy.

What do you think? Leave a comment.

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Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Posted: March 31, 2014 | Author: Recreation Law | Filed under: Indiana, Legal Case, Release (pre-injury contract not to sue), Sports | Tags: IN, Indiana, Indianapolis, Inherent Risk, Judgment as a matter of law, Magic Words, Minor, Motion (legal), Negligence, parent, Release, Summary judgment, YMCA | Leave a comment

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant, vs. Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson, Appellees-Plaintiffs.

No. 85A05-1203-CT-138

COURT OF APPEALS OF INDIANA

2012 Ind. App. LEXIS 428

August 31, 2012, Decided

August 31, 2012, Filed

PRIOR HISTORY: [*1]

APPEAL FROM THE WABASH CIRCUIT COURT. The Honorable Robert R. McCallen, III, Judge. Cause No. 85C01-1110-CT-839.

COUNSEL: FOR APPELLANT: RANDALL W. GRAFF, ORFEJ P. NAJDESKI, LESLIE B. POLLIE, Kopka, Pinkus, Dolin & Eads, LLC, Indianapolis, Indiana.

FOR APPELLEES: JOSEF MUSSER, Spitzer Herriman Stephenson, Holderead Musser & Conner, LLP, Marion, Indiana.

JUDGES: BROWN, Judge. FRIEDLANDER, J., and PYLE, J., concur.

OPINION BY: BROWN

OPINION

OPINION – FOR PUBLICATION

BROWN, Judge

Wabash County Young Men’s Christian Association, Inc., (“YMCA”) appeals the trial court’s order denying its motion for summary judgment. The YMCA raises one issue which we revise and restate as whether the trial court erred in denying the YMCA’s motion for summary judgment. We reverse.

The relevant facts follow. On October 13, 2011, Taylor Thompson, by next friends Brian Thompson and Charlene Thompson, filed a complaint against the YMCA alleging that she was at the premises known as the Field of Dreams which was owned by the YMCA on May 28, 2009, and was injured when she slid into second base while participating in the Wabash Metro Summer Baseball/Softball League.¹ The complaint alleged that the YMCA was negligent and violated its duty to protect Taylor [*2] by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard.” Appellant’s Appendix at 7. The complaint alleged that Taylor suffered serious and permanent physical injury.

1 The complaint indicated that Taylor was seventeen years old at the time of the filing of the complaint.

On November 22, 2011, the YMCA filed a Motion to Dismiss And/Or Change of Venue Pursuant to Trial Rule 12(B)(6). The YMCA alleged that Charlene, Taylor’s mother, executed a contractual document for Taylor’s participation in the Wabash Metro Summer Baseball/Softball League, and the YMCA attached the document to the motion. The form contains the following statement:

I (parent or guardian) Charlene Thompson hereby give permission for Taylor Thompson to participate in Metro League Baseball/Softball. I further understand that injuries can occur and will not hold the field, sponsor, coaching staff or league responsible for injury or medical expenses incurred while participating in practice [*3] or playing in a game. I also affirm that my child is physically fit to participate in athletic activities.

Id. at 12. The YMCA alleged that Taylor contractually agreed that there was an inherent risk to her participation in the softball game that could result in injury and that she contractually agreed that she would hold the YMCA, as alleged owner of the field, harmless for any injuries or medical expenses resulting from such injuries.

On December 22, 2011, Taylor filed a response to the YMCA’s motion to dismiss and argued that “in the case of minors, a person claiming tort damages on behalf of the minor against another person has power to execute a release on the minor’s behalf, however, the release must be approved by the Court before being effective.” Appellant’s Appendix at 14. Taylor also alleged that the document YMCA relies upon did not contemplate an injury from the negligent maintenance of the property, rather, it contemplates the foreseeable injuries which can inherently occur while playing baseball or softball. Taylor argued that the YMCA was not a party to the understanding evidenced by the document.

On December 30, 2011, the court held a hearing on the YMCA’s motion. On [*4] January 18, 2012, the court denied the YMCA’s motion to dismiss. On February 16, 2012, the YMCA filed a motion to certify the interlocutory order, which the court granted on February 21, 2012. On April 16, 2012, this court accepted jurisdiction pursuant to Ind. Appellate Rule 14(B).

The issue is whether the trial court erred by denying summary judgment to the YMCA. Initially, we note that the YMCA’s motion to dismiss was filed pursuant to Ind. Trial Rule 12(B)(6) and attached the form completed by Taylor’s mother. Therefore, we will review the YMCA’s motion to dismiss as a motion for summary judgment. [HN1] See Ind. Trial Rule 12(B) (“If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.”); New Albany-Floyd Cnty. Educ. Ass’n v. Ammerman, 724 N.E.2d 251, 255 n.7 (Ind. Ct. App. 2000) (“Although the trial court specifically granted Holman’s motion to dismiss and did not rule on his motion for summary judgment, we must nevertheless treat [*5] the former as a motion for summary judgment on review.”); Galbraith v. Planning Dep’t of City of Anderson, 627 N.E.2d 850, 852 (Ind. Ct. App. 1994) (treating the trial court’s dismissal of plaintiff’s complaint as a summary judgment for the defendant when plaintiff submitted an affidavit and the trial court acknowledged that it considered matters outside the pleadings).

[HN2] Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. [HN3] Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. [HN4] We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. [HN5] “[A] motion for summary judgment that is unopposed should be granted only if the designated materials, regardless of whether they stand unopposed by materials designated by the nonmovant, warrant it.” [*6] Starks v. Village Green Apartments, 854 N.E.2d 411, 415 (Ind. Ct. App. 2006), abrogated on other grounds by Klotz v. Hoyt, 900 N.E.2d 1 (Ind. 2009).

[HN6] In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 193 (Ind. 2012). [HN7] Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

[HN8] “In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004). [HN9] In negligence cases, summary judgment is “rarely appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the [*7] objective reasonable person–one best applied by a jury after hearing all of the evidence.” Id. Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff’s claim. Id. at 385.

We initially address Taylor’s argument that while Indiana law requires that a parent claiming tort damages on behalf of a minor against another person has power to execute a release on the minor’s behalf, the release must be approved by the court to be valid. Taylor cites Ind. Code § 29-3-9-7(b) which provides:

[HN10] Whenever a minor has a disputed claim against another person, whether arising in contract, tort, or otherwise, and a guardian for the minor and the minor’s property has not been appointed, the parents of the minor may compromise the claim. However, before the compromise is valid, it must be approved by the court upon filing of a petition requesting the court’s approval. If the court approves the compromise, it may direct that the settlement be paid in accordance with IC 29-3-3-1. If IC 29-3-3-1 is not applicable, the court shall require that a guardian be appointed and that the settlement be delivered to the guardian [*8] upon the terms that the court directs.

Taylor argues that “[n]o Indiana statute, rule, or decision authorizes a parent of a minor to sign a pre-tort waiver.” Appellee’s Brief at 5. Taylor also argues that “the Indiana statute requiring court approval of minor’s claim settlement arises out of a public policy of favoring protection of minors with respect to contractual obligations” and “[t]he statute guards minors against improvident compromises made by their parents.” Id.

The YMCA argues that Taylor’s reliance on Ind. Code § 29-3-9-7(b) “is misplaced and has no bearing on the subject matter at issue in this case, which involves a vastly different legal scenario having nothing to do with probating a disputed claim a minor has against another person.” Appellant’s Brief at 8. The YMCA also argues that if Taylor’s argument is accepted, it would render all releases signed by parents to allow their children to participate in school and sporting events ineffective and meaningless. The YMCA contends that “[i]t would be impossible for parents to obtain court approval for every release or hold harmless agreement for every club, hobby, camp, and sporting activity for each of their children.” Id. at 9.

We [*9] observe that the referenced statute governs a post-injury claim and falls under Title 29, which governs probate law, and not the issue in this case. Further, Taylor does not point to any other authority indicating that the release form was invalid. Under the circumstances, we conclude that the release form is valid. See Bellew v. Byers, 272 Ind. 37, 38, 396 N.E.2d 335, 336 (1979) (addressing a minor’s compromise claim in which the parent and natural guardian was paid an amount for the injuries to her three children in return for a release), abrogated on other grounds by Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588 N.E.2d 1264 (Ind. 1992); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 206-207 (Ohio 1998) (holding that it was not appropriate to equate a pre-injury release with a post-injury release and that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activites where the cause of action sounds in negligence).

We next turn to whether the release applies to Taylor’s injury. The YMCA argues that the release form applies to Taylor’s action of sliding into second base during the softball game. [*10] The YMCA also argues that “one can take almost any on-field mishap and seek to couch it in terms of negligence by arguing for more padding, softer playing surfaces, rule changes, etc., but the fact remains that the injury arose because of a risk inherent in the game.” Appellant’s Reply Brief at 3. Taylor argues that the YMCA’s repeated reference to her injury being the result of her sliding into second base without referencing the accompanying allegations of the complaint that the injury was caused by the negligent maintenance of the second base is a glaring omission throughout the YMCA’s argument.

“It is well established in Indiana that [HN11] exculpatory agreements are not against public policy.” Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 749 (Ind. Ct. App. 2006), trans. denied. [HN12] “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999), trans. denied. However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically [*11] and explicitly refer[s] to the negligence of the party seeking release from liability.'” Id. (quoting Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998)). [HN13] An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006), trans. denied. Furthermore, [HN14] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity. Id. [HN15] The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. Id. at 581-582.

The form signed by Taylor’s mother did not release the YMCA of liability for all negligent acts because the form did not contain any specific or explicit reference to the negligence of the YMCA or owner of the field. See Stowers, 855 N.E.2d at 749 (“The Stowers’ proposed instruction set out that the Release Forms did not absolve Clinton Central of liability for negligent acts if they did not contain language specifically referring [*12] to negligence; thus, it was a correct statement of the law.”). Thus, we must determine whether Taylor’s injury was derived from a risk inherent in the nature of the activity. See Anderson, 852 N.E.2d at 581 (holding that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity).

Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity. See id. at 584-585 (observing that the plaintiff was injured when attempting to mount her horse and concluding that the plaintiff’s damages were inherent in the nature of the activity of horse riding and that the trial court did not err by granting summary judgment to the defendants). The release attached to the YMCA’s motion to dismiss indicated that the owner of the field would not be responsible for any injury or medical expenses “incurred while participating in practice or playing in a game.” Appellant’s Appendix at 12. Based upon the language in the release, we conclude [*13] that the YMCA met its burden of making a prima facie showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law and that the burden then shifted to Taylor who did not designate any evidence to show that an issue of material fact existed. Accordingly, we conclude that the trial court erred by denying the YMCA’s motion for summary judgment.

For the foregoing reasons, we reverse the trial court’s denial of the YMCA’s motion for summary judgment.

Reversed.

FRIEDLANDER, J., and PYLE, J., concur.

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Greg Mortenson : only climber I know who got lost in a valley. But he did a lot of good in that region. New movie 3000 Cupts of Tea tries to point that out

Posted: March 28, 2014 | Author: Recreation Law | Filed under: Youth Camps, Zip Line | Tags: 3000 Cups of Tea, Afghanistan, Afghanistan–Pakistan relations, Central Asia Institute, Cups of Tea, Greg Mortensen, Greg Mortenson, Greg Mortenson: Did 60 Minutes Get it Wrong?, Mortenson, Pakistan, Three Cups of Tea | 2 Comments

3000 Cups of Tea: The Mission and the Madness of Greg Mortenson* * * * *Did 60 Minutes and the Media Get It Wrong?

For Immediate Release

Salt Lake City – Fri., March 14 – Award-winning journalist and filmmaker Jennifer Jordan today launched a fundraising campaign under the nonprofit umbrella of the Utah Film Center to complete production of her documentary, 3000 Cups of Tea: The Mission and the Madness of Greg Mortenson. Academy award winner and multi-nominee, Geralyn White Dreyfous, is executive producer.

The film’s trailer poses the questions: Did the media, principally 60 Minutes, get it wrong in accusing Mortenson of fraud, mismanagement, and lying? If so, what are the consequences to the man, his mission, and the future of education for girls in Pakistan and Afghanistan, and what does it say about the state of American journalism?

According to Jordan, who traveled to Pakistan and Afghanistan in September and October 2013 to visit the schools founded by Mortenson and his nonprofit organization, the Central Asia Institute, her film will address some of the most damaging allegations made by 60 Minutes in its April 2011 broadcast. These include:

Did he lie in his international bestseller, Three Cups of Tea, about the genesis of building schools in remote northern Pakistan?
Did he defraud donors to the Central Asia Institute by not building the schools he claimed he did?
Did he spend lavishly on himself and his family while the children of Pakistan and Afghanistan went without their promised schools?

On the recent trip, Jordan and her business partner and husband, cinematographer Jeff Rhoads, visited nearly two dozen villages and spoke to scores of people, including Maria Usman, the CBS Islamabad bureau chief and one of the producers of the 60 Minutes segment.

Said Jordan, “Our initial findings are very different from 60 Minutes.” (In recent months, the venerated CBS news program has come under attack for making serious errors in other broadcasts.)

Jordan’s interest in Mortenson began in 2000 when she made the first of two arduous journeys into base camp at the foot of K2 to research future books and shoot a documentary. “Those treks took us through several remote mountain villages in which there was often only one building with four plumb walls and a bright tin roof standing out among the mud and stone huts. The buildings were Central Asia Institute schools.

“Having helped us with both of our expeditions through the fractious Northern Territories of Pakistan, Mortenson had become a friend and colleague. When he came to Salt Lake City only months after the attacks of 9-11, I interviewed him about his experience building schools for girls in the nexus of the Taliban and Al Qaeda’s powerbase.

“When I watched the 60 Minutes broadcast, it didn’t match my experience of the man or what I had witnessed on the ground, so Jeff and I decided to launch our own investigation to see what had happened. What we have found is that this is a story worth telling – one of the world’s most successful education philanthropists is taken down in 20 minutes by one of the world’s most powerful news organizations.

“I believe that our democracy depends on a free and viable Fourth Estate, keeping tabs on the first three. But that means journalists must be held to the highest standards of ethics and integrity. When we get it wrong, the consequences can be devastating. 3000 Cups of Tea: the Mission and the Madness of Greg Mortenson is the result of our investigation.”

Both Jordan and Rhoads have earned numerous awards for their work, and this film represents their second as partners, following National Geographic’s Women of K2 in 2003.

The film’s executive producer, Geralyn White Dreyfous, is an Academy award winner and her films have earned an additional three nominations, including Best Documentary in 2014 for The Square. Said Dreyfous: “Having known and worked with Jennifer for 27 years and having heard of this film’s progress every step of the way, I can say that it promises to be both shocking and thought-provoking. It is a story that needs telling by capable hands, and I am proud to be associated with its production.”

In making public the documentary’s trailer, Jordan is launching a fundraising effort to finish the film. Under the 501(c)3 nonprofit umbrella of the Utah Film Center, they are able to accept tax-deductible donations. To donate and to learn more, visit: www.3000cupsoftea.org.

Media Inquiries:

sharon

801-918-9998801-918-9998

gigi
801-232-6647801-232-6647

Jennifer Jordan

Gallery

Geralyn Dreyfous: “Having known and worked with Jennifer for 27 years and having heard of this film’s progress every step of the way, I can say that it promises to be both shocking and thought-provoking. It is a story that needs telling by capable hands, and I am proud to be associated with its production.”

States that allow a parent to sign away a minor’s right to sue

Posted: March 26, 2014 | Author: Recreation Law | Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Alaska, Arizona, Camp, Colorado, Exculpatory Agreement, Minor, parent, Recreation, Release, Waiver | Leave a comment

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State	By Statute	Restrictions
Alaska	Alaska: Sec. 09.65.292	Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona	ARS § 12-553	Limited to Equine Activities
Colorado	C.R.S. §§13-22-107	Release stops suit for falling off horse at Colorado summer Camp
Florida	Florida Statute § 744.301 (3)	New Florida law allows a parent to sign away a child’s right to sue for injuries
	By Case Law
California	Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Delaware	Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340	Delaware decision upholds a release signed by a parent against a minor’s claims Delaware holds that mothers signature on contract forces change of venue for minors claims.
Florida	Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454	Allows a release signed by a parent to require arbitration of the minor’s claims
Florida	Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147	Release can be used for volunteer activities and by government entities
Maryland	BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897	Release upheld for injury to 5 year old in chair care area of store while parents shopped.
Massachusetts	Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota	Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299	Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
North Dakota	McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3	North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio	Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)	Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin	Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1	However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 voided all releases in the state
	On the Edge, but not enough to really rely on
North Carolina	Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741	Ruling is by the Federal District Court and only a preliminary motion North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations

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Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

Posted: March 24, 2014 | Author: Recreation Law | Filed under: Maryland, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: BJ's Wholesale Club, BJ’s Wholesale Kid’s Club, Court of Appeals, Court of Special Appeals, Maryland Court of Appeals, Maryland Court of Special Appeals, Maryland Courts, Minor, parent, Release, Waiver | Leave a comment

Parents signed a release to drop kids off at a “kids’ club” while they shopped in the defendant’s store (wholesale club). The release was in the agreement to use the club. Also included in the agreement was an indemnification clause which the court did not rule on.

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Date of the Decision: November 27, 2013

Plaintiff: (Original) Russell Rosen, et. al.

Defendant: (Original) BJ’s Wholesale Club, Inc.

Plaintiff Claims: Defendant had a duty to exercise reasonable care to protect its patrons in the play area from injury. Defendant agents and employees knew or should have known that placing an elevated play structure directly over carpet adhered to a concrete floor would pose a danger to children playing there. The defendant breached its duty of care by placing.

Defendant Defenses: Release and indemnification

Holding: For the defendant (plaintiff in the appeal)

In this Maryland Supreme Court decision, the party named first in the citation to the case is the party that appealed the lower-court opinion. So the original defendant is the party that appealed the decision in the last court and thus is listed as the plaintiff in the citation.

The defendant is a wholesale club. Generally, you pay a yearly fee to shop in the club which sells items for lower prices. As an incentive, this club had a play area called the BJ’s Incredible Kids’ Club. To be able to leave your kids at the club while you shop you had to sign “BJ’s Incredible Kids’ Club Rules.”

The rules contained a release and indemnification clause.

In the kid’s club, there was an elevated plastic play apparatus called Harry the Hippo. Harry the Hippo was approximately 38” high at its peak. The injured plaintiff was a five-year-old boy who fell off the hippo landing on the floor. The floor was carpeted with no padding covering the concrete. The young boy suffered a severe “acute epidural hematoma.” This required surgery to save his life.

The family sued. The trial court dismissed the plaintiff’s complaint based on the release. The next level of court in Maryland, the Court of Special Appeals, reversed the trial court. The case was appealed and accepted by the highest court, in this case, the Court of Appeals of Maryland.

Summary of the case

The court first examined the club agreement which contained the release. The release language was just one paragraph long but did contain a clause that released the negligence of the club. The agreement also had rules, one of which was you could not leave your kid in the club for more than 90 minutes.

Right below the release, or exculpatory clause as it was called by the court, was an indemnification clause. The indemnification clause was in smaller font but printed in bold right above the signature line.

The court then worked through the requirements for releases to be valid in Maryland as reviewed by the lower courts in their decisions.

Generally, Maryland Courts will uphold exculpatory clauses that are executed by adults on their own behalf. “There are circumstances, however, under which the public interest will not permit an exculpatory clause in a contract.” “Public policy will not permit exculpatory agreements in transactions affecting the public interest.” “The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”

The court then specifically reviewed exculpatory clauses under Maryland law.

An exculpatory clause is a “contractual provision relieving a party from liability resulting from a negligent or wrongful act.” By entering into an exculpatory agreement, “the parties expressly . . . agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.”

…”[i]n the absence of legislation to the contrary, exculpatory clauses are generally valid, and the public policy of freedom of contract is best served by enforcing the provisions of the clause.” We also have opined that exculpatory clauses are to be construed strictly, requiring that the language of any such clause “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”

The court then reviewed when exculpatory clauses would not be upheld in Maryland. An exculpatory will not protect from liability from intentional harm or extreme forms of negligence. Extreme forms of negligence are generally referred to herein as greater than normal negligence and in Maryland include reckless, wanton or gross negligence.

Second, an exculpatory clause cannot be part of a contract that was the product of grossly unequal bargaining power. That means when a party has no choice but to sign the agreement, because that person has no bargaining power so that he is at the mercy of the other’s negligence.

Remember, for the argument of unequal bargaining power to be a valid defense to a release, the agreement must be for something necessary for the health, welfare or safety of the person signing the agreement. Babysitting or recreational activities are not such necessities that create a true unequal bargaining power that would void a release.

The final group that would void a release are transactions affecting the public interest. Transactions affecting the public interest seem to be very similar to the unequal bargaining power argument but are viewed by the court from the context of why rather than who. Two were not at issue in this case; public service obligations such as an agreement between a consumer and an electric company and “other transactions “so important to the public good that an exculpatory clause would be patently offensive.”” The example the court gave to explain the second type of contract was in the reverse; an agreement between a health club and a consumer “of no great public importance or practical necessity.”

The court went into depth is reasoning on rejecting the public service obligation because it was the basis for the dissent in the case from two other justices.

The third category of public service exceptions to releases, the court and the dissent stated were not easily defined. In a prior Maryland case, this exception was developed by referring to the California decision in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963). However, the court found that Tunkl was not valid in defining this exception.

We declined, however, to adopt the Tunkl factors, determining that the “fluid nature of the public interest” renders strict reliance on “the presence or absence of six fixed factors” arbitrary and inappropriate. We recognized, instead, that while the factors may be persuasive to evaluate the public interest, “[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”

The best description the court could identify was “societal expectations.” These expectations are best found by looking at the statute and common law. Here the court examined the laws defining the relationship between the parent and the child. Under Maryland law, the parents are given almost absolute control over the acts, welfare, growth, and raising of their child. The presumption in Maryland is the parents are going to act in the best interest of the child.

The societal expectation that parents should make significant decisions pertaining to a child’s welfare is manifest in statutes that enable parents to exercise their authority on behalf of their minor child in the most important aspects of a child’s life, including significant physical and mental health decisions. Parents are empowered, on behalf of their children to: consent to medical treatment, consent to having their children give blood, consent to the use of a tanning device by their child, and to authorize another family member to consent to the immunization of a minor child. Parents are also empowered to commit a child, under certain conditions, to: a public or private service that provides treatment for individuals with mental disorders, as well as a private therapeutic group home that provides access to a range of diagnostic and therapeutic mental health services.

“Parents also are empowered to permit a fifteen to seventeen-year-old child to marry.” Based on the court’s review of these and other statutes, the court found parents in Maryland were empowered to make significant decisions on behalf of children. The next argument was then whether the courts had a duty or obligation to step in and replace the decision-making of a parent and when.

The major argument to support this argument is courts in Maryland approve settlements affecting children who were injured as plaintiffs in lawsuits. This is normal in most states and has been developed for many reasons; the main one is to prevent a negligent defendant from taking advantage of a naïve or unknowing parent. However, in Maryland, there were exceptions to this law, which allowed parents to settle some claims without judicial review. Based on that exception the court found this argument was not controlling.

We conclude, therefore, that Mr. Rosen’s execution of an exculpatory agreement on behalf of Ephraim to allow him to use the Kids’ Club was not a transaction affecting the public interest within the meaning of Wolf, which otherwise would have impugned the effect of the agreement.

The next argument presented by the injured parties was a commercial entity was better able to bear the risk of loss by purchasing insurance than these parents. The court found several flaws with this argument. Basically, was who was going to determine what a commercial enterprise was. The court used this example to make its point.

For example, is a Boy Scout or Girl Scout, YMCA, or church camp a commercial establishment or a community-based activity? Is a band trip to participate in the Macy’s Thanksgiving Day parade a school or commercial activity? What definition of commercial is to be applied?

The final argument was that the state had a parens patriae obligation to the children of the state. Parens patriae is the legal power of the state to protect those who do not have the legal authority to protect themselves. Minor’s incapacitated adults or adults who mental status is not at the state’s minimum level.

However, under Maryland law the obligation of the state under parens patriae only arises if the parental rights have been abrogated pursuant to a statute. No statute required the courts to intervene, and no statute had removed the injured minor from the legal authority of his parents. Finally, parens patriae is applied when a minor has been adjudicated or become involved in the juvenile delinquency system, which was not present in this case.

The court reversed the lower court’s ruling and sent the case back to the trial court for dismissal.

So Now What?

Maryland now joins the slowing growing ranks of states that allow a parent to sign a release and give up their minor child’s right to sue.

For a complete list see: States that allow a parent to sign away a minor’s right to sue.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, 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 manufactures 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 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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Down River Spring Boat Swap and Grand Re-Opening

Posted: March 23, 2014 | Author: Recreation Law | Filed under: Whitewater Rafting | Tags: Boat, Canoes and Kayaks, Columbia River, Friday, Sports, Water Sports, x, y, z | Leave a comment

Spring Boat Swap & Grand Re-Opening

Friday, April 4 – 10am-5-pm, Saturday, April 5 – 10am-5pm, Sunday, April 6 – 10am-3pm

WIN a Raft!By entering ourDaily Gear Raffle

Get 1 raffle ticket for every $100 you spend

during the sale.

Adventure 095 (green) $1,895.00 Value

Sunday’s

Grand Prize Winner

takes it home!

A Must Have Accessory!

4″ Barrell Pump $189.95 Value

One given away each day during ourGear Raffle

$$$$$$$$$$$$$$$50.00Gift Certificate

One given away each day during our Gear Raffle

$$$$$$$$$$$$$

We’ll also be raffling off lots ofaccessories each day so hope to see you here!Must be present to win. Sorry, no substitutions. See contest desk during event for details.

While you’re here …don’t forget to check out Our NEW Clearance Center

2NDs and Demos from

Sawyer Paddles & Oars

GRAND RE-OPENINGDown River Equipment is now employee owned. We invite you to join us in celebrating our first season together by taking advantage of Store Wide Discounts and our first ever Daily Gear Raffle.Most everything will be marked down 10-30% (limited to in stock items only & excludes frames and other accessories requiring shop labor.)

And don’t miss out on the chance to win gear and accessories daily throughout the swap. One ticket for each $100 in purchases will be entered for you into our daily raffle. Participants must be present to win.

This event will happen rain or shine so come prepared to take advantage of savings inside and out!

BOAT SWAP

This bi-annual event is a great opportunity to upgrade your existing boat or affordably purchase your first inflatable. Our knowledgeable staff will be on hand to answer all your questions so you can purchase with confidence.

Boat Swap Info

If you plan to sell your boat in our swap,here’s what you need to know :

Drop off your boat by Wednesday, April 2nd between regular store hours – Monday-Friday 9:00am-6:00pm and Saturday 10:00am-5:00pm.

Only drop off your rubber (rafts, cat tubes, duckies or inflatable sport boats). You may sell additional items grouped into the price of the boat as a package (frame, oars, etc.), but please do not bring them. It’s a good idea to make an itemized list of things that are being sold with the boat and attach it. This way it’s clear to the buyer what they’re getting. (Pictures are great too!)

If your boat sells, you will receive a call from us. If you do not hear from us by Sunday afternoon, then we were unable to find your boat a new home and we will need you to pick up your boat by Sunday, April 6th between 2:00pm and 3:00pm.

You do not need to be present for your boat to sell.

If your boat sells you have the option to receive 100% In-Store credit, or we can cut you a check for 85% of the total selling amount.

A list of swap boats will be posted on our website www.downriverequip.com

Thursday night, April 3rd.

Hope to see you!Phil, Zach, Jason & The DRE CrewDown River Equipment Company

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ANSI/PRCA American National Standard

Posted: March 22, 2014 | Author: Recreation Law | Filed under: Challenge or Ropes Course | Tags: American National Standards Institute, ANSI, Canopy Tour, challenge course, Mike Barker, PRCA, Professional Ropes Course Association, Ropes course, Steve Gustafson, zip line, Zipline | Leave a comment

Ziplines, Canopy Tours, Ropes Courses and Aerial Adventure Parks;

Now governed by a NEW ANSI National Standard

Popular Adventure Activities Are Governed by a New StandardThe Professional Ropes Course Association Announces ANSI Approved American National Standards for Ziplines, Rope Challenge Courses, Canopy Tours and Aerial Adventure Parks.

Professional Ropes Course Association (PRCA)

Rockford, Illinois

Contacts: Steven Gustafson, President of the PRCA, (815) 637-2969(815) 637-2969
Michael Barker, Vice President of the PRCA, (203) 464-9784(203) 464-9784

March 17, 2014

FOR IMMEDIATE RELEASE:

Popular Adventures: Ziplines, Canopy Tours, Ropes Courses and Aerial Adventure Parks are Now governed by a new ANSI National Standard

THE AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI) APPROVES AMERICAN NATIONAL STANDARDS FOR ZIPLINES, CANOPY TOURS, AERIAL ADVENTURE PARKS AND ROPE CHALLENGE COURSES DEVELOPED AND MANAGED BY THE PROFESSIONAL ROPES COURSE ASSOCIATION (PRCA)

ANSI APPROVED National Standards Provide much needed Safety Guidance for the Largely Self-Regulated Industry

The standard Enables course owners and managers to conduct in-house training and Certify their own staff

On March 7, 2014 the American National Standards Institute (ANSI) announced (pg 17) their approval of the first consensus-based American National Standard for construction, inspection, maintenance and employee training/certification governing the Zipline, Canopy Tour, Ropes Challenge Course and Aerial Adventure Parks industry. The Professional Ropes Course Association (PRCA), the ANSI Accredited Standards Developer, will manage the new ANSI-PRCA Standards as Secretariat.

Says Mike Barker, Vice President of the PRCA Board of Directors: “This new ANSI Standard provides a consistent reference and much needed safety guidance for State Regulators, Inspectors, Insurers and Industry Professionals.” He adds, “Moreover, this standard enables course and tour owners/managers to conduct their own in-house training, certify their own staff and designate qualified persons to conduct course inspections – expensive services that previously required performance by a limited national vendor pool that couldn’t adequately service the entire industry.”

Steve Gustafson, President of the PRCA adds: “ANSI standards are subjected to an extensive vetting process, including consensus involvement by materially affected parties in the standards development process.” He adds, “The Professional Ropes Course Association (PRCA) is the Accredited Standards Developer and Secretariat of the ANSI approved Standards. Having worked for the past nine years to develop the standard, I’m proud of this accomplishment. The positive contributions that this standard brings to benefit safety for the public and for our industry are huge!”

The PRCA became the first ANSI Accredited Standards Developer (pg 17) for Ropes Courses, Ziplines, Canopy Tours and Aerial Adventure Parks in 2005. This accreditation ensures that the PRCA’s process for the development of the new standard was in compliance with ANSI Essential Requirements (E.R.) which include openness, lack of dominance, balance of industry representation, coordination and harmonization, transparency, public input, and avoid conflict or duplication of other previously announced candidate or published ANS.

Based on ANSI findings that no other candidate standards or ANS had been published to date for the industry, the PRCA Project Initiation Notification (PINS) was accepted and published by ANSI (pg 14). Since that time, the PRCA Candidate ANS underwent one informal and three (including the changes review) formal public review periods. Hundreds of volunteers presented over one thousand comments for consideration and review. During this process, the PRCA Consensus Body harmonized the Candidate ANS with European Standards, Australia/NZ Standards, ASTM, and other standards and regulations as needed. To further foster harmonization and balance, the PRCA offered the Association for Challenge Course Technology (ACCT) the opportunity to join with the PRCA and publish a joint standard, with fifty/fifty shared roles and profit sharing splits in addition to three voting positions on the PRCA Consensus Body, and one voting position on the continuous Standards Management Committee. On repeated occasions ACCT refused all offers of participation in the process.

It is the PRCA’s understanding that ACCT has chosen to file an appeal with ANSI per the appeal process afforded to all persons who have completed a standard developer’s appeal process. ACCT must show proof that ANSI did not follow their own procedures when approving the American National Standard. Further, ACCT states that they filed a successful appeal last July with the PRCA. This is partly true, yet disingenuous. While the ACCT appeal was granted on one out of three issues, this only meant that the PRCA had to clarify the fee structure for the PRCA appeal process, allowing interested parties an opportunity to file their appeals for a second time. This was conducted and no appeals were filed. In two previously filed appeals, both independent appeals panels found in favor of the PRCA stating that the procedures had been followed. This then cleared the way for the PRCA to submit the candidate standard for consideration this year, which was ultimately approved by ANSI as the American National Standard for the industry.

While the ACCT and others have the right to appeal and make accusations of an inability to participate, facts point to numerous invitations and public notices placed on industry listservs, the PRCA website, emails to the ACCT’s leadership and all of the ACCT PVM’s, emails to other materially affected Associations (BSA, ACA, GSA, etc), and published in the ANSI Standards Action Newsletter, to review and comment on the candidate standard, participate on the Consensus Body, and serve on the Standards management Committee or even participate in a joint standard. These facts go directly to an October 2006 decision by ANSI, whereas ANSI instructed the PRCA to view the ACCT as a materially affected Association and for both associations to make good faith efforts to harmonize with the ACCT in cooperative standard development. The PRCA did honor and respect ANSI’s decision by offering to share in a joint standard and serve on the PRCA Consensus Body, the ultimate gesture of goodwill and harmonization. Now, the ACCT must explain to ANSI why it has barred the PRCA from their process and other of their actions; and perhaps they will have to address their industry controlling actions of years past.

Meanwhile, the ANSI/ PRCA 1.0-.3 – 2014 stands as the ANSI approved American National Standards while any ACCT ANSI level appeal is conducted. This is now between ACCT and ANSI.

If you want more information on the American National Standard, what it is, the processes involved, how it applies, how it relates to the old PRCA and ACCT standards and how it saves you money go to www.prcainfo.org and click on Frequently Asked Questions on the

American National Standard ANSI/PRCA 1.0-.03 – 2014

If your materially affected association would like to serve on the PRCA Standards management Committee or if you just want more information, please contact us at info

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Most references in case law to assumption of the risk are to this California decision. The basis for understanding Assumption of the Risk is this decision based on an injured finger during a pickup football game.

Posted: March 17, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Sports | Tags: Acknowledgement of Risk, Assumption of risk, assumption of the risk, California, California Supreme Court, Inherent Risk, Jewett, Kendra Knight, Knight, Knight v. Jewett, Michael Jewett, Primary Assumption of the Risk, reasonable implied assumption of risk, Secondary Assumption of the Risk, Summary judgment, unreasonable implied assumption of risk | Leave a comment

The definition of primary and secondary assumption of the risk was clearly set forth in this decision. This decision also related primary assumption of the risk with the inherent risk of an activity. The decision also eliminated the equally confusing reasonable implied assumption of risk, unreasonable implied assumption of risk theories.

Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

Date of the Decision: 1992

Plaintiff: Kendra Knight

Defendant: Michael Jewett

Plaintiff Claims: negligence and assault and battery

Defendant Defenses: assumption of the risk

Holding: for the defendant

Most references to assumption of the risk when needed to clarify the definition in a decision come back to this seminal case: Knight v. Jewett.

The injury in this case occurred during a football game during half time of a super bowl game. The plaintiff and defendant were guests invited to watch the game. Each team had 4-5 players of both sexes. It was purely a pick-up football game. The plaintiff and defendant were on opposite teams.

The court never determined which set of facts were controlling in the case. Generally, the plaintiff and defendant ran into each other during a play. The plaintiff maintained she told the defendant not to play so hard. On the next play, the defendant stepped on the plaintiff’s hand while she was on the ground, injuring her finger.

The injury resulted in three operations and eventual amputation of the finger.

The plaintiff filed suit, which the trial court dismissed based upon the defendant’s motion for summary judgment where he argued assumption of the risk by the plaintiff prevented her recover. The court of appeals affirmed the trial court decision, and the case was appealed to the California Supreme Court which led to this discussion.

Summary of the case

The California Supreme Court wrote extensively about the history and nature of assumption of the risk. A little of that decision will be reviewed here.

The court ruled the basics of negligence claims. “As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if they’re careless conduct injures another person.” It then looked at this in comparison of sports and recreation.

In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them.

The court then examined the issue of inherent risk of a sport or activity. An inherent risk is one that without those risks, the sport would not exist. Another way of looking at it is you cannot participate in the sport without possibly experiencing the inherent risks of the sport.

Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.

As sports evolved, the actions of other parties in an activity might exceed or be considered careless, but still part of the sport. “In some situations, however, the careless conduct of others is treated as an “inherent risk” of a sport, thus barring recovery by the plaintiff.”

This then leads to the variations in how the courts interpreted the defense.

“The divergent results of the foregoing cases lead naturally to the question how courts are to determine when careless conduct of another properly should be considered an “inherent risk” of the sport that (as a matter of law) is assumed by the injured participant.

The issue of the careless coparticipant in a sport or recreational activity has generally been resolved in the US as a risk of the sport.

The overwhelming majority of the cases, both within and outside California, that have addressed the issue of coparticipant liability in such a sport, have concluded that it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport–for example, example, for an injury resulting from a carelessly thrown ball or bat during a baseball game–and that liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport.

The court looked at the history of the defense and found that it has been used in several different ways and was a very confusing defense.

Indeed, almost a half-century ago, Justice Frankfurter described the term “assumption of risk” as a classic example of a felicitous phrase, “undiscriminatingly used to express different and sometimes contradictory ideas,” and whose uncritical use “bedevils the law.”

The defense had been applied in California to cases where spectators were injured at sporting events where it was determined that no duty was owed to the spectator. In other cases, it was used in sport and other activities where:

… it was clear that the defendant had breached a legal duty of care to the plaintiff, and the inquiry focused on whether the plaintiff knowingly and voluntarily had chosen to encounter the specific risk of harm posed by the defendant’s breach of duty.

The court then reviewed comparative fault or the doctrine of contributory negligence. Until the adoption of the doctrine, it did not matter what assumption of risk theory was used, both prevented recovery. However, after the adoption of the doctrine it became important to define which theory applied. One was merged with contributory negligence and the other either by exemption in a statute or by court decision was allowed to survive.

Contributory Negligence was the result of a change in how liability and consequently, damages were applied by a jury. Instead of determining who won or lost, completely, the jury was tasked with determining what percentage of fault applied to the parties in a case. If the plaintiff was less at fault than the defendant, the percentage of fault is different in each state, and then the defendant recovered that percentage of the damages.

However, that division of the fault left many in the sports and recreation field at a loss when the plaintiff did assume the risk of injuries which the court felt should bar a claim.

The court then started to define the new approach of assumption of the risk.

First, in “primary assumption of risk” cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable.

Second, in “secondary assumption of risk” cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.

The basic distinction results in a totally different result. The first prevents the plaintiff from recovering, and the second may affect the plaintiff’s recovery. By that I mean one is a complete bar to the plaintiff’s recovery and the second, because of comparative negligence may reduce or limit the plaintiff’s recovery.

This third classification is different. However, if you look at the injuries of different sports it makes sense; compare the risks of jump rope versus the risk of boxing.

Third and finally, the question, whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.

The court reached the following conclusions with respect to how the two different applications of the theory would be applied to the facts and the result.

In cases involving “primary assumption of risk”–where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.

Secondary assumption of risk was defined as:

In cases involving “secondary assumption of risk”–where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty–the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.

Coparticipants in sports were then defined to be protected from their careless acts because the injured participant assumed the risk.

Accordingly, we conclude that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

As such the defendant in this case was found not to be liable to the plaintiff because the defendant’s carelessness was a risk of the activity, and the plaintiff assumed the risk under the primary assumption of risk doctrine.

So Now What?

First, this court wrote a decision that is still referenced today and is used by the majority of states to define assumption of the risk; primary and secondary for a state.

The real issue, and the one that courts face every day, is to determine the inherent risks of an activity and what defines careless acts on the part of coparticipant. Leaving this decision to a judge or a jury that does not understand the activity could lead to confusion and losing decisions.

In that vein, when a statute is written such as equine or ski safety acts, then the statute defines the inherent risks of the activity. A long and comprehensive list such as that in the Colorado Ski Safety Act broadens the risks inherent in skiing.

In that vein, make sure you release does not limit the risks that are covered by your release. If your release just prevents suits for the inherent risks of the activity, those risks that in many states, the plaintiff must accept and assume any way you may be limiting the scope of your release.

Always educate your guests on all of the risks of the activity or as many as you possibly can. You want your guests to be informed of the risks, the more a guest knows and understands the better the experience. At the same time, the more the guest knows, the more the issue becomes primary assumption of the risk, a complete bar rather than secondary assumption of the risk.

What do you think? Leave a comment.

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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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OK, this one just sent me over the edge. The USFS ticketed a rescuer for not getting out of the way. The rescuer had rappelled down and stabilized an injured climber on a ledge.

Posted: March 14, 2014 | Author: Recreation Law | Filed under: North Carolina, Rock Climbing | Tags: Asheville North Carolina, Emergency Medical Services, Forest Service, Good Samaritan, Helicopter, Linville Gorge, Linville Gorge Wilderness, North Carolina, Pisgah National Forest, Rescue, Rock climbing, Sikorsky UH-60 Black Hawk, USFS | 3 Comments

News Report and Video of the Rescue

Watch the video or read the transcript then go make a comment! I would also suggest you contact your congressman and let them know the actions of the USFS are way out of line.

Read the transcript at the website Climber involved in rescue issued citation

On top of that, the Good Samaritan rescuer could have been liable to the injured climber if he had followed the instructions and abandoned the injured climber. As many of you know, once you start a rescue or first aid you must continue until relieved by a higher medical authority.

Besides, how is this going to be portrayed with the next rescuer? Will people be willing to help if they may face a ticket?

The biggest wake up should be to the US Forest Service. Most rescue plans for federal lands, USFS, BLM or NPS are dependent upon Good Samaritans. In many plans, the plans would not be possible without the involvement of persons standing by.

The National Forests in North Carolina contact info can be located here and is: Supervisor’s Office

160 Zillicoa St. Suite A

Asheville, NC 28801

828-257-4200828-257-4200

You can email them here. Tell them you only know what you say on the newscast but their actions can have chilling effect on future rescues. Also, their actions might have put the victim at risk and subject the rescuer to liability.

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Update on whether Avalanches are in inherent risk of inbounds skiing reviewed by Appellate court in Colorado.

Posted: March 13, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, Avalanche, Colorado, Ski Area, Skiing / Snow Boarding | Tags: avalanche, Colorado, Colorado Supreme Court, Inbounds, Inbounds Avalanche, Intawest, IntraWest Winter Park Operations Corporation, Ski Resort, Winter Park, Winter Park Ski Area | Leave a comment

For background on the issues see Issue of whether avalanches are an inherent risk of skiing in Colorado headed for appeal. Even with this decision, this issue I am still betting will head to the Supreme Court of Colorado.

The first case in the two avalanche deaths that occurred several years ago inbound at ski areas has reached the appellate level. The court in Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242 held for the ski area stating that the Colorado Ski Safety Act included in its terms of inherent risks Avalanches.

For that reason, because an appeal is probably forthcoming and the time for filing for an appeal has just started to run, I’ll not review the case at this time.

If the case is not appealed…

To read the decision see Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242

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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 | Author: Recreation Law | 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 comment

Henderson 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

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 | Author: Recreation Law | 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 comment

To 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.

(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 | Author: Recreation Law | Filed under: Paddlesports, Tennessee, Whitewater Rafting | Tags: Paddling, Raft, Recreation, Release, statute, Tenn, Tennessee, Whitewater Rafting | Leave a comment

Tennessee 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;

(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.

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.

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.

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.

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 | Author: Recreation Law | 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 Comment

The 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.

Short Title

This Act may be cited as the ” River Paddling Protection Act “.

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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Friends of CAIC Launches $150,000 fundraising campaign

Posted: March 7, 2014 | Author: Recreation Law | Filed under: Avalanche, Colorado | Tags: avalanche, CAIC, Colorado, Colorado Avalanche, Colorado Avalanche Information Center | Leave a comment

Hi There,

We have had 7 fatalities thus far this season including the most recent, which happened yesterday in Southern Colorado. Our sincerest condolences go out to the family and friends of the victim. Numerous accidents have happened throughout Colorado and we recently saw an avalanche cycle that was one of the largest in 30 years. It has been and continues to be a very busy season.

The Colorado Avalanche Information Center’s Backcountry Avalanche Forecasting program is small but mighty. The CAIC operates on limited funding and they do incredible work with what they have. Colorado is a very big place and there are more and more people enjoying the State’s spectacular winter backcountry each year. We deserve the best avalanche center in the country. To achieve this goal we need everyone’s support. The State of Colorado is incredibly supportive and has increased the CAIC’s funding. But to really grow, we need you involved. This private public partnership is the best way we can expand the CAIC’s backcountry forecast program and I am personally asking you to support avalanche forecasting and education throughout the State of Colorado. In fact, to show how strongly I feel about the CAIC’s backcountry forecasting program, I will kick off the campaign with my own $200 donation.

Starting today and for the next 7 weeks the Friends of CAIC will be offering prizes, challenges, and incentives, to anyone who donates $25 or more. Click here for more information or to DONATE NOW!

We will be accepting donations in the following ways:

Donate on Crowdrise.com.http://www.crowdrise.com/stayinformedstayalive/

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Honorary member of the Italian Academic Alpine Club acceptance speech is an eloquent statement on why we climb mountains

Posted: March 5, 2014 | Author: Recreation Law | Filed under: Mountaineering | Tags: Bernard Amy, CAIC, French mountaineer, French Observatoir pour les Pratiques de la Montagne et de l' Alpinisme, honorary, Italian Academic Alpine Club, Membership, Mountaineering, OPMA | Leave a comment

Whether you climb or not, you should read this speech. It will justify your actions provide you with ideas to defend our desire to climb, no matter the risk.

Bernard Amy is a well-known French mountaineer and President the French Observatoir pour les Pratiques de la Montagne et de l’ Alpinisme (OPMA). He was granted honorary membership in the Italian Academic Alpine Club (CAIC). His acceptance speech can be found here.

Mr. Amy’s speech should be read by every mountaineer and should be read by every person who is attempting to stop a mountaineer. Some Quotes:

Rather, in order to have mountaineering accepted as a risky activity, we must explain what the mountains give us and what we learn from them. In other words, we must not try to explain why we go to the mountains, but what we find there.

Like all passions, the passion for mountaineering is characterized by a permanent element of doubt, a continuous questioning of oneself about the sense of the activity. Be he young or old, a mountaineer needs to feel strong. For this the social recognition of the group is essential.

These are valuable and strong statements by someone who has concentrated to find the thrill, the accomplishment and the satisfaction of standing on the summit.

Congratulations Mr. Amy on your honorary membership in the CAIC. Thank you for providing us support for our future endeavors to keep mountains open and mountain tops great places of worship for our soles.

Bernard Amy says we must explain what the mountains give us and what we learn from them

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An attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.

Posted: March 4, 2014 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Europe, helmet, Helmet Camera, HelmetCam, Michael Schumacher, Off-Piste, Race Car Driver, ski area, skiing, Video Camera | Leave a comment

An attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.

Remember Europe has a different system of enforcement of laws to keep people safe than the US. Where we would sue, Europe regulates and if you violate the regulation you are criminally charged.

The article states that the head injuries to Michael Schumacher the famous race car driver might have been caused by his camera changing the effectiveness of his helmet.

Investigators are exploring the theory that Michael Schumacher’s helmet camera could have caused the helmet to shatter, leading to serious head injuries

Schumacher, an experienced skier, was travelling at a moderate speed when he fell and hit a rock. His skis were new; his bindings have been subsequently tested and were not at fault; he was fully in control of his movements as he left the marked pistes and traversed the patch of snow in-between two groomed runs in Meribel.

But now investigators believe that they may have found a reason for the seriousness of the crash. They think that his helmet camera could have actually worsened the blown, and caused the helmet to shatter into pieces.

Experts from ENSA, the world-renowned ski and climbing academy in the French ski resort of Chamonix, have conducted tests to determine whether the presence of a solid object between a helmet colliding with a rock would weaken the structure.

The helmet smashed – but the camera he had attached to it, in order to record him and his son skiing, was undamaged. The footage, audio and visual, has provided police with crucial information about the crash.

“The helmet completely broke. It was in at least two parts. ENSA analysed the piece of the helmet to check the material, and all was OK,” said a source close to the investigation.

“But why did it explode on impact? Here the camera comes into question. The laboratory has been testing to see if the camera weakened the structure.”

The following, however, maybe the real reason for the statements.

Lawyers had argued that managers of the ski resort might face up to three years in prison because the dangers lurking within the off-piste section were not properly marked.

Off-piste, usually meaning out of bounds or off trail here sections of the ski area where Mr. Schumacher fell might not have met the necessary requirements.

Do Something

Think. Although it is not outside the realm of possibility, it is hard to determine why a camera mounted on a helmet would affect the helmet’s performance. On top of that, ski helmets are designed to break. In fact most helmets only are effective once they break.

Believe me, as you know helmets are a real issue in my opinion. But to blame the injury on the helmet or the camera I think is just a way to dodge a criminal charge or change public opinion about the incident.

SeeMichael Schumacher skiing crash: did helmet camera cause head injuries?

To further understand the difference between the US and Europe see:

Another Litigation versus Criminal example

Criminal Charges brought against Everest Guide in the UK

Death of young climber leads to criminal charges in Italy

Forgetting your beacon is manslaughter in Europe….if you wife dies in an Avalanche

Litigation v. Jail Time

The legal relationship created between manufactures and US consumers

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New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim. The release stopped the claims the plaintiff suffered running in a half marathon.

Posted: March 3, 2014 | Author: Recreation Law | Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: #race, Gross negligence, Half Marathon, Inc. Road Runners Club Of America, Jogging, Negligence, New York, New York City, New York City Department of Parks and Recreation, New York Road Runners, Plaintiff, Road Runners Club of America, Runner, running, Running Race, The City of New York | 1 Comment

The plaintiff slipped and fell on ice while trying to leave the course to tie his shoe. He sued the City of New York, NYC Department of Parks, New York Road Runners, Inc. and Road Runners Club of America for his injuries. He alleged gross negligence for having him leave the course if he had a problem where he fell on ice.

Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

Plaintiff: Jonathan Zuckerman

Defendant: The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Runners Club Of America

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: release

Holding: for the defendants

At the beginning of this half marathon that ran through Central Park in New York City, the plaintiff was instructed with other runners to leave the course if they had a problem. This was done so runners would not run into each other.

The plaintiff was an experienced runner who had participated in 100 events. During the race, he left the course to tie his shoe. He slipped on ice next to the course suffering this injury.

The release in this case was short; however, it was long enough to cover the important points according to the court. The release specifically mentioned “falls” as a risk of the activity and had the plaintiff agree to release claims due to negligence.

The release was signed by the plaintiff electronically. The signors had to elect to accept the terms or reject the terms. If they runner rejected the terms of the release, they could not register for the race.

Summary of the case

The court started by looking at the legal requirements in New York that affect the validity of a release.

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable were not expressly prohibited by law.

Language relieving one from liability must be unmistakable and easily understood.

Agreements to indemnify for gross negligence or willful behavior, however, are void.

The court also defined the requirements to support a claim for gross negligence in an effort to overcome a release. “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference to the rights of others.”

It is refreshing to see the court recognize the claim as one trying to evade the release as a defense. The court stated, “I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver.”

The court reviewed the release and found the risk the plaintiff undertook was specifically identified in the release, a fall. The court also found the instructions the race official gave to the participants to leave the race course were reasonable. There was no greater liability attributed to the race promoter for having runners leave the course because to fail to do so would have runners running into each other on the course.

Having looked at the facts and the release, the court found that gross negligence could not reasonably be drawn from those facts.

City of New York’s Motions

The City of New York moved to amend its complaint to include the defense of Release. The city was named in the release as an entity to be protected by the release but had not pled the defense of release. As such the court had to grant the cities motion to amend its answer so it could plead the additional defense.

In another action that is rarely done in courts, the court reviewed the law on granting motions to amend and then granted the motion. The court then said since it had already ruled that a release stopped the plaintiff’s claims against the sponsor, it would also stop the plaintiff’s claims against the city and dismissed the city from the case.

So Now What?

It is rare to see a court take the initiative to do undertake these two actions. The first to throw out the gross negligence claims and the second to throw out the negligence claims of the city without a motion for summary judgment. Courts are reluctant to take such acts or the rules of civil procedure will not allow a court to do so.

The decision is also valuable because it defines what gross negligence is in New York.

Here an electronic release that was well written stopped the plaintiff’s claims against the race promoter and the entities the release also protected.

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Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

Posted: March 3, 2014 | Author: Recreation Law | Filed under: Legal Case, New York, Racing, Racing, Release (pre-injury contract not to sue) | Tags: #race, Gross negligence, Half Marathon, Inc. Road Runners Club Of America, Jogging, New York, New York City, New York City Department of Parks and Recreation, New York Road Runners, Plaintiff, Road Runners Club of America, Runner, running, Running Race, The City of New York | Leave a comment

Zuckerman v. The City of New York, 2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

[**2] Jonathan Zuckerman, Plaintiff, -against- The City of New York, New York City Department of Parks and Recreation, New York Road Runners, Inc. and Road Road Runners Club Of America, Defendants.

105044/2010

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2011 N.Y. Misc. LEXIS 465; 2011 NY Slip Op 30410(U)

February 18, 2011, Decided

February 23, 2011, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: runner, marathon, gross negligence, affirmative defense, amend, enforceable, reply, factual issues, participating, oppose, ice, exit, nunc pro tunc, risks associated, reckless indifference, grossly negligent, collectively, spectators, humidity, website, weather, traffic, invoked, waive, heat, void, registration, disbursements, encompassed, registrant

COUNSEL: [*1] For Plaintiff: Frank Taubner, Esq., Jasne & Florio, LLP, White Plains, NY.

For defendant NYRR: Deborah Peters Jordan, Esq., Havkins, Rosenfeld et al, New York, NY.

For defendant City: Anthony Bila, ACC, Michael A. Cardozo, Corporation Counse, New York, NY.

JUDGES: Barbara Jaffe, JSC.

OPINION BY: Barbara Jaffe

OPINION

DECISION & ORDER

By notice of motion dated August 20, 2010, defendants New York Road Runners, Inc. and Road Runners Club of America (collectively, NYRR) move pursuant to CPLR 3212 for an order summarily dismissing the complaint, and defendant Road Runners Club of America, Inc. (RRCA) moves pursuant to CPLR 3211(c) for an order dismissing the complaint. Plaintiff opposes as to NYRR, and does not oppose as to RRCA. Defendants City and New York City Department of Recreation (collectively, City) move separately pursuant to CPLR 3025(c) for an order granting leave to amend their answer nunc pro tunc to add an affirmative defense, and pursuant to CPLR 3211(a)(5) and (a)(7) for an order dismissing the complaint. Plaintiff opposes City’s motion.

[**3] I. FACTS

NYRR conducts more than 100 events a year, including the Manhattan Half Marathon (Half Marathon). (Affirmation of Kenneth L. Winell, Esq., dated Aug. 20, 2010 [Winell [*2] Aff.], Exh. D). Participants in the Half Marathon register through NYRR’s website which contains the following provision:

I know that participating in NYRR events is a potentially hazardous activity. I agree not to enter and participate unless I am medically able and properly trained. I agree to abide by any decision of an event official relative to my ability to safely complete the event. I am voluntarily entering and assume all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course, all such risks being known and appreciated by me. I grant to the Medical Director of this event and his designee access to my medical records and physicians, as well as other information, relating to medical care that may be administered to me as a result of my participation in this event. Having read this Waiver and knowing these facts, and in consideration of your acceptance of this application, I, for myself and anyone entitled to act of my behalf, waive and release New York Road Runners Club, Inc., Road Runners Club [*3] of America, USA Track & Field, the City of New York and its agencies and departments, the Metropolitan Athletics Congress, and all sponsors, and their representatives and successors, from present and future claims and liabilities of any kind, known or unknown, arising out of my participation in this event or related activities, even though such claim or liability may arise out of negligence or fault on the part of the foregoing persons or entities. I grant permission to the foregoing persons and entities to use or authorize others to use any photographs, motions pictures, recordings, or any other record of my participation in this event or related activities for any legitimate purpose without remuneration.

(Id., Exhs. C.F. [emphases added]). The registrant must then either select “I accept and agree to the above waiver,” or “I do not accept and do not agree to the above waiver.” (Id.) If the registrant selects the latter, he cannot register. (Id., Exh. C).

Plaintiff, a member of NYRR, is an experienced runner, having participated in over 100 NYRR events. (Affirmation of Frank Taubner, Esq., dated Oct. 11, 2010 [Taubner Aff.]). He registered for the 2009 Half Marathon online approximately [*4] one week earlier, and recalls seeing [**4] a waiver as part of the registration procedure. (Id.).

At approximately 8:00 a.m. on January 25, 2009, plaintiff arrived at the starting area of the Half Marathon in Central Park. (Id.). Snow banks flanked the course’s pathways. (Id.). An NYRR official orally instructed the participants that if they had to stop for any reason, they were to exit the course and proceed to the shoulder of the roadway so as not to block other participants. (Id.). While running, plaintiffs shoe became untied and seeing no designated exit areas, he stepped off the path as instructed and proceeded to what he believed to be a patch of dirt. (Id.). There, he slipped on ice that he had not seen, and fell backward, seriously injuring himself. (Id.).

II. NYRR’S MOTION

A. Contentions

NYRR contends that it is entitled to summary dismissal as plaintiff executed a valid and enforceable waiver of liability, and because it did not organize, supervise or control the half marathon. (Memorandum of Law in Support of Defendants’ Motion to Dismiss, dated Aug. 2010 [NYRR Mem.]). In support, it annexes the affidavits of three of its employees, (id., Exhs. C, D, E), a copy of the waiver (id, [*5] Exh. F), and proof of plaintiffs registration (id., Exh. F).

Plaintiff argues that in light of defendants’ gross negligence and his compliance with the instructions given at the commencement of the half marathon that he exit the course if he needed to stop, the waiver is unenforceable. He also denies having assumed the risk of slipping on ice when exiting the course. (Taubner Aff.).

In reply, NYRR asserts that plaintiff’s injury is encompassed by the waiver and that plaintiff has failed to establish that NYRR’s conduct rises to the level of gross negligence. (Reply [**5] Affirmation of Deborah Peters Jordan, Esq., dated Nov. 18, 2010).

B. Analysis

Contractual agreements to waive liability for a party’s negligence, although frowned upon, are generally enforceable where not expressly prohibited by law. (Gross v Sweet, 49 NY2d 102, 105, 400 N.E.2d 306, 424 N.Y.S.2d 365 [1979]). Language relieving one from liability must be unmistakable and easily understood. (Id. at 107). Agreements to indemnify for gross negligence or willful behavior, however, are void. (Id. at 106). “Gross negligence, when invoked to pierce an agreed-upon limitation of liability . . . must smack of intentional wrongdoing . . . that evinces a reckless indifference [*6] to the rights of others.” (Sommer v Fed. Signal Corp., 79 NY2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 [1992]; Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 77 A.D.3d 431, 433, 908 N.Y.S.2d 654 [1st Dept 2010]).

As plaintiff does not deny that he agreed to the waiver or that it is generally enforceable and not void as a matter of law or public policy, I need only address whether there exist factual issues as to whether NYRR was grossly negligent and whether the accident was outside the scope of the waiver. That the waiver references the “conditions of the course” does not remove plaintiff’s accident from its scope as the waiver extends to “all risks associated with participating in the event, including, but not limited to, falls, contact with other participants, spectators or others, the effect of the weather, including heat and/or humidity, traffic and the conditions of the course.” The breadth of the provision permits the inference that plaintiff was aware that by executing the waiver, he assumed the risks of running through Central Park in the winter, where the presence of ice is reasonably anticipated, which risks are reasonably deemed part of the activity, and not just of the course. (See Bufano v Nat. Inline Roller Hockey Assn., 272 A.D.2d 359, 707 N.Y.S.2d 223 [**6] [2d Dept 2000] [*7] [plaintiff assumed risk of injury during fight while playing inline roller hockey]), Nothing in the provision precludes its application to accidents incurred by a participant who momentarily steps off the course.

And, although plaintiff acted in compliance with defendants’ instruction to leave the race course if he needed to stop, such an instruction constitutes a sensible means of protecting participants from colliding with one another, and neither invites nor would naturally lead to an accident sufficient to constitute reckless indifference. Consequently, an inference of gross negligence is not reasonably drawn therefrom. (See Lemoine v Cornell Univ., 2 AD3d 1017, 769 N.Y.S.2d 313 [3d Dept 2003], lv denied 2 N.Y.3d 701, 810 N.E.2d 912, 778 N.Y.S.2d 459 [2005] [plaintiff fell from wall after rock-climbing instructor told her where to place her hands and feet; waiver of liability enforced; not gross negligence]). And, assuming that NYRR had a duty to keep the park free of slippery substances, the failure to do so constitutes ordinary negligence at best.

Given this result, I need not address RRCA’s alternative argument that it did not organize, supervise, or control the half marathon.

III. CITY’S MOTION

A. Contentions

City argues that it should [*8] be granted leave to amend its answer to add an affirmative defense that the action is barred by plaintiffs execution of a written release. It observes that leave is freely granted, that plaintiff will no suffer no prejudice, and that, although this motion was served after joinder of issue, it is procedurally proper as City moves pursuant to CPLR 3211(a)(7) as well as (a)(5). (Affirmation of Anthony Bila, ACC, dated Sept. 29, 2010).

Plaintiff asserts that City is not entitled to dismissal given the factual issues as to City’s [**7] gross negligence and whether plaintiff’s accident is encompassed by the waiver, and that the motion to amend should be denied because the affirmative defense is meritless and prejudicial. (Taubner Aff.).

In reply, City maintains that as it moves only pursuant to CPLR 3211, the existence of factual issues is immaterial. It contends that the amendment is meritorious and will not prejudice plaintiff, and that plaintiffs accident falls squarely within the scope of the waiver and that there is no evidence of gross negligence. (Reply Affirmation of Anthony Bila, ACC, dated Nov. 18, 2010).

B. Analysis

Although objections pursuant to CPLR 3211(a)(5) are waived if not invoked [*9] in the movant’s answer (CPLR 3211 [e]), a motion to amend an answer may be granted in order that the affirmative defense be addressed on the merits. (Siegel, NY Prac § 274, at 435 [3d ed]; Marks v Macchiarola, 221 AD2d 217, 634 N.Y.S.2d 56 [1st Dept 1995]). Thus, and absent any discernible prejudice given plaintiffs having addressed the substance of the motion above (II. A.), leave is granted. (Cf Young v GSL Enter., Inc., 170 AD2d 401, 566 N.Y.S.2d 618 [1st Dept 1991] [Supreme Court properly addressed merits of proposed affirmative defense in motion to amend]; Scheff v St. John’s Episcopal Hosp., 115 AD2d 532, 534, 496 N.Y.S.2d 58 [2d Dept 1985] [same]).

Although plaintiff executed the waiver on NYRR’s website, City was expressly included therein. (See Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008], lv denied 11 N.Y.3d 704, 894 N.E.2d 1198, 864 N.Y.S.2d 807 [upholding waiver against NYRR and City]; cf Tedesco v Triborough Bridge and Tunnel Auth, 250 AD2d 758, 673 N.Y.S.2d 181 [2d Dept 1998] [bicycle tour waiver included party not specifically named in release]). Moreover, the waiver of liability is a release within the meaning [**8] of CPLR 3211(a)(5). (See Brookner, 51 AD3d 841, 858 N.Y.S.2d 348).

Having already determined that the waiver is enforceable as against plaintiff, and as NYRR’s [*10] conduct was not grossly negligent, the same result is reached as to City.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that the motion for summary judgment by New York Road Runners, Inc. and Road Runners Club of America is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; it is further

ORDERED, that the motion by City of New York and New York City Department of Parks and Recreation for leave to serve an amended answer is granted, and the annexed answer is deemed timely served, nunc pro tunc; and it is further

ORDERED, that the motion for dismissal as against City of New York and New York City Department of Parks and Recreation is granted, and the complaint dismissed against them with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs.

This constitutes the decision and order of the court.

/s/ Barbara Jaffe

Barbara Jaffe, JSC

DATED: February 18, 2011

New York, New York

WordPress Tags: Zuckerman,York,Misc,LEXIS,Slip,Jonathan,Plaintiff,Department,Parks,Recreation,Road,Runners,Club,America,Defendants,SUPREME,COURT,February,NOTICE,OPINION,OFFICIAL,REPORTS,TERMS,runner,negligence,indifference,spectators,registration,disbursements,COUNSEL,Frank,Taubner,Jasne,Florio,White,Plains,defendant,NYRR,Deborah,Peters,Jordan,Havkins,Rosenfeld,Anthony,Bila,Michael,Cardozo,Corporation,Counse,JUDGES,Barbara,Jaffe,DECISION,ORDER,August,CPLR,complaint,RRCA,FACTS,events,Manhattan,Half,Marathon,Affirmation,Kenneth,Winell,Participants,provision,event,Medical,Director,physicians,information,participation,Waiver,acceptance,Track,Field,agencies,departments,Metropolitan,Athletics,successors,liabilities,entities,permission,recordings,purpose,remuneration,Exhs,emphases,member,procedure,January,area,Central,Park,pathways,roadway,plaintiffs,areas,path,dirt,MOTION,Contentions,dismissal,Memorandum,Support,Dismiss,affidavits,employees,compliance,instructions,commencement,injury,Analysis,Contractual,agreements,Gross,Sweet,Language,behavior,limitation,Sommer,Signal,Corp,Abacus,Bank,Servs,Dept,policy,accident,scope,references,breadth,inference,winter,presence,Bufano,Inline,Roller,Hockey,Assn,accidents,participant,instruction,Lemoine,Cornell,Univ,instructor,feet,substances,failure,Given,argument,action,execution,Sept,existence,amendment,Although,objections,Siegel,Prac,Marks,Macchiarola,Thus,substance,Young,Enter,Scheff,John,Episcopal,Hosp,Brookner,Roadrunners,Tedesco,Triborough,Bridge,Tunnel,Auth,bicycle,Moreover,CONCLUSION,judgment,Clerk,submission,enforceable,nunc,tunc,website,registrant,pursuant,upon,whether

Rocky Mountain Field Institute is hiring a full-time Volunteer Coordinator

Posted: March 1, 2014 | Author: Recreation Law | Filed under: Youth Camps, Zip Line | Tags: x, y, z | Leave a comment

Rocky Mountain Field Institute is hiring a full-time Volunteer Coordinator based out of Colorado Springs, Colorado.The Volunteer Coordinator (VC) is responsible for developing, implementing, and maintaining an exemplary volunteer program that engages community volunteers in environmental restoration activities. The VC recruits and provides professional staff support to RMFI’s 2,000 annual volunteers (23,000 volunteer hours annually). The VC works under the Executive Director. This is a rewarding, community-focused position that will serve as the primary liaison between RMFI and our volunteers.

View job opening here

Rocky Mountain Field Institute

815 South 25th Street, Suite 101
Colorado Springs, CO 80904
United States

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It gets pretty absurd when we make playgrounds safe and then build climbing walls and ropes courses for adults to go have fun!

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Spring Boat Swap & Grand Re-Opening

Friday, April 4 – 10am-5-pm, Saturday, April 5 – 10am-5pm, Sunday, April 6 – 10am-3pm

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To 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

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70-7-201. Part definitions.

70-7-202. Limitations on liability of whitewater professional.

70-7-203. When liability of whitewater professional imposed.

70-7-204. Warning notice.

70-7-205. Written waivers, exculpatory agreements and releases.

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