Help End the Hit and Run Loophole in Colorado. Support Bicycle Colorado!

Bicycle Colorado is working hard to make Cycling Safer in Colorado

Image via Wikipedia

Bicycle Colorado announces support for the “End the Hit and Run Loophole” Act (HB12-1084) introduced in the Colorado House by Representatives Kathleen Conti (R) and Rhonda Fields (D). The act will increase the penalty for a hit-and-run crash causing serious bodily injury from a Class 5 felony to a more serious Class 4, removing a dangerous loophole in Colorado law by giving a hit-and-run offense the same penalty as drunk driving.

At present it is better to flee and avoid getting caught drunk than it is to stay at the scene.

Hit-and-run crashes disproportionately affect people who walk and ride bicycles. Bicycle and pedestrian fatalities are four times more likely to be the result of a hit and run than other roadway crashes. The difference between life and death may be the immediate help that is offered at the time of the crash.

The bill will soon be heard in the Judiciary Committee, and we will keep you updated on its progress. For more information, go to the legislative page on our website.

Do Something

To receive all the latest news from Bicycle Colorado, sign up for the free eNews or read archived eNews publications.

Image via Wikipedia

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Bicycle Colorado, Colorado, CO, Judiciary Committee, Legislature, Colorado Legislature, Kathleen Conti, Rhonda Fields, Felony, Hit and Run,

WordPress Tags: Help,Loophole,Colorado,Support,Bicycle,Safer,House,Conti,Rhonda,Fields,injury,Class,felony,bicycles,roadway,difference,life,death,Judiciary,Committee,information,news,publications,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Legislature,eNews

Florida statute that allows a parent to release a minor’s right to sue

Posted: February 17, 2012 | Author: Recreation Law | Filed under: Florida, Minors, Youth, Children | Tags: Child, Children Youth and Family, Family, Florida law, Legal guardian, Minor, Minor (law), parent, Parental Rights, Release | Leave a comment

TITLE 43. DOMESTIC RELATIONS (Chs. 741-753)

CHAPTER 744. GUARDIANSHIP

PART III. TYPES OF GUARDIANSHIP

GO TO FLORIDA STATUTES ARCHIVE DIRECTORY

Fla. Stat. § 744.301 (2012)

§ 744.301. Natural guardians

(1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.

(2) Natural guardians are authorized, on behalf of any of their minor children, to:

(a) Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any of said minor children;

(b) Collect, receive, manage, and dispose of the proceeds of any such settlement;

(d) Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and

(e) Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined by s. 710.102, of which the minor is a beneficiary, participant, or owner, without appointment, authority, or bond, when the amounts received, in the aggregate, do not exceed $ 15,000.

(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.

(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:

1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and

2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.

(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:

NOTICE TO THE MINOR CHILD‘S NATURAL GUARDIAN

READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE

AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A

POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT,

EVEN IF ( name of released party or parties ) USES

REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A

CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED

BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE

CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT

BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE

GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER

FROM ( name of released party or parties ) IN A

LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO

YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM

THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU

HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND

( name of released party or parties ) HAS THE

RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU

DO NOT SIGN THIS FORM.

(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.

1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.

2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.

3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.

(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.

(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.

HISTORY: S. 1, ch. 74-106; s. 8, ch. 75-166; s. 7, ch. 75-222; s. 1, ch. 77-190; s. 3, ch. 79-221; s. 17, ch. 89-96; s. 22, ch. 92-200; s. 66, ch. 95-211; s. 73, ch. 97-170; s. 11, ch. 2002-195; s. 8, ch. 2005-101; s. 3, ch. 2006-178, eff. July 1, 2006; s. 2, ch. 2010-27, eff. Apr. 27, 2010.

NOTES:

AMENDMENTS

The 2005 amendment by s. 8, ch. 2005-101, effective June 1, 2005, rewrote (2).

The 2006 amendment by s. 3, ch. 2006-178, effective July 1, 2006, in (1), substituted “the surviving parent remains the sole natural guardian even if he or she” for “the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent” in the second sentence and made minor stylistic changes; substituted “Natural” for “The natural guardian or” at the beginning of (2); substituted “amounts received, in the aggregate, do” for “amount involved in any instance does” in the last undesignated paragraph in (2); in (3), inserted “for the benefit of the ward” and substituted “specified” for “provided for” in the first sentence and added the last sentence; and deleted former (4).

The 2010 amendment added (3); redesignated former (3) as (4); and substituted “this section are” for “subsection (2) shall be” in the first sentence of (4).

NOTE.–

Created from former s. 744.13.

FLORIDA STATUTES REFERENCES

Chapter 549. Automobile Race Meets, F.S. § 549.09. Motorsport nonspectator liability release.

Chapter 739. Florida Uniform Disclaimer of Property Interests Act, F.S. § 739.104. Power to disclaim; general requirements; when irrevocable.

Chapter 744. Guardianship, F.S. § 744.387. Settlement of claims.

FLORIDA ADMINISTRATIVE CODE REFERENCES

Chapter 19-11 Procedures for the Public Employee Optional Retirement Program, F.A.C. 19-11.003 Distributions from Frs Investment Plan Accounts.

1. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).

2. Despite a father’s claim that Georgia was the home state of his child born out of wedlock for purposes of custody under Fla. Stat. § 61.514 of the Uniform Child Custody Jurisdiction Act, a Florida circuit court had jurisdiction to enter an emergency child pick-up order ex-parte because: (1) the child’s mother was a Florida resident when the child was born, the child was born in Florida, and the mother, after living in Georgia for a time, returned to live in Florida; (2) the order simply enforced the mother’s presumptive rights under Fla. Stat. § 744.301(1) until a court determined otherwise and was not a determination as to the father’s ultimate custody rights; and (3) the emergency order was not inconsistent with O.C.G.A. § 19-2-4(a), O.C.G.A. § 19-7-22(a) and (c), and O.C.G.A. § 19-7-25. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).

3. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).

4. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

5. Pursuant to Fla. Stat. § 744.301(1) a mother, the non-custodial parent, had a right to custody of her child upon the death of the father, the custodial parent, where the father obtained custody of the 10 month old child when the parents divorced, the father moved with his child and new wife to another county three years after the divorce and actively thwarted the mother’s attempts to visit her child so that the mother was unable to see her child for seven years, and the father’s widow, who sought custody of the child upon the father’s death, was unable to prove by clear and convincing evidence that the mother was unfit. Webb v. Webb, 546 So. 2d 1062, 1989 Fla. App. LEXIS 2951 (Fla. 3rd DCA 1989), review denied by 553 So. 2d 1168, 1989 Fla. LEXIS 1234 (Fla. 1989).

6. Mere fact that a father had enforceable rights and obligations to his child born out of wedlock by virtue of his acknowledgement of paternity did not equate to his having a right to temporary custody superior to the mother’s prior to a court declaration to that effect. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).

7. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

8. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).

9. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).

10. Where child’s father had executed agreement to pay for child’s required medical care, the hospital was not foreclosed from seeking recovery against the mother under an implied in law contract predicated upon her duty to support her child under Fla. Stat. § 744.301. Variety Children’s Hospital, Inc. v. Vigliotti, 385 So. 2d 1052, 1980 Fla. App. LEXIS 17190 (Fla. 3rd DCA 1980).

11. Admitted father of premature infant girl was a natural guardian of the infant under Fla. Stat. § 744.301(1), despite infant’s illegitimate status; therefore, unwed father was responsible for infant’s necessary emergency medical services. De Costa v. North Broward Hosp. Dist., 497 So. 2d 1282, 1986 Fla. App. LEXIS 10561 (Fla. 4th DCA 1986).

12. Fla. Stat. § 744.301(1) provides that the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction entered an order stating otherwise. Muniz v. State, 764 So. 2d 729, 2000 Fla. App. LEXIS 8142 (Fla. 2nd DCA 2000).

13. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).

1. Florida Civil Procedure, Chapter 9. Amended and Supplementary Pleadings; Pretrial Procedure, § 9-3. Settlements.

2. Florida Estates Practice Guide, Chapter 18 Beneficiaries’ Rights, Part I. Legal Background, § 18.11 Disclaimer of Interest in Property.

3. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.04 Natural Guardians.

4. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.43 Litigation Involving Ward.

5. Florida Estates Practice Guide, Chapter 36 Right to Property of an Intestate, Part III. Forms, § 36.204 Petition for Authorization to Execute Qualified Disclaimer.

6. Florida Estates Practice Guide, Appendix PRG Florida Probate and Guardianship Rules, Part I General, Rule 5.040. Notice.

7. Florida Family Law, Division I Marriage, Chapter 3 Cohabitation, B. Rights and Obligations of Cohabitating Partners and their Children, § 3.11 Rights and Obligations Concerning Children.

8. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, C. Basis for Determinations of Parental Responsibility and Timesharing, § 32.20 Parents’ Rights and Duties.

9. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, D. Effect of Shared Parental Responsibility and Timesharing Determinations, § 32.30 Rights and Duties of Parents.

10. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part II. Practice Guide, B. Preliminary Determinations, § 32.111 Action for Shared Parental Responsibility.

11. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part I. Legal Background, § 33.01 Parents’ Duty to Support Child.

12. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.110 Duty to Support Child.

13. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.116 Child Support Order in Paternity Action.

14. Florida Family Law, Division IV Dissolution of Marriage, Chapter 82 Modification of Child Support, Part I. Legal Background, § 82.03 Practice and Procedure.

15. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.03 Interests and Status of Natural Father.

16. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.06 Father’s Rights to Parental Responsibility and Timesharing.

17. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, B. Establishing Paternity in Paternity Proceeding, § 90.20 Overview of Paternity Proceeding.

18. Florida Family Law, Division V Parent-Child Relationships, Chapter 92 Nonparental Custody, B. Proceedings Involving Nonparental Custody, § 92.10 Type of Proceedings.

19. Florida Family Law, Division VI Other Procedures, Chapter 101 Disabilities of Minority, A. Disabilities of Minority, § 101.03 Other Aspects of Disabilities of Minority.

20. Florida Probate Code Manual, Chapter 1 Intestate Succession, § 1.12 Disclaimer.

21. Florida Probate Code Manual, Chapter 5 Rights of the Decedent’s Children, § 5.13 Disclaimer.

22. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.03 Natural Guardians.

23. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.09 Guardians Ad Litem.

24. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.02 Powers of Natural Guardian.

25. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.04 Powers and Duties of Guardian Ad Litem.

26. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.11 Bringing and Defending Actions; Settling Claims.

27. Florida Probate Code Manual, Florida Probate Rules, Scope.

28. Florida Real Estate Transactions, Part II. The Deed, Chapter 10. Parties to the Deed, § 10.03 Deeds by Minors.

29. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, A. Settlement, 1. Settlement Procedures and Techniques, § 141.06 Statutes Affecting Settlements.

30. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.53 Enforcement and Avoidance.

31. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.54 Release by Natural Guardian for Minor Participating in Activities with Inherent Risks.

32. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 13 Settlement, IV. Entering Into a Settlement Agreement, § 13.19 Authority of Third Persons to Enter Settlement Agreements.

33. LexisNexis Practice Guide: Florida Estate & Probate Practice, Chapter 10 Wills: Administrative Provisions, II. Appointing Fiduciaries, § 10.06 Appoint a Guardian.

34. LexisNexis Practice Guide: Florida Personal Injury, What’s New, Scope.

35. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, I. Overview, § 9.02 Master Checklist.

36. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.36 Checklist.

37. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38 Determine Whether Parent Executed Enforceable Pre-Injury Release.

38. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38B Establish Immunity for Motorsport Activities.

39. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 4 Parties, III. Party Must Have Standing in Action, § 4.08 Standing Generally Requires Party’s Interest in Action.

40. Planning for the Elderly in Florida, Chapter 17 Guardianship, § 17.06 Types of Guardianships.

41. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.03 Legal Background.

42. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.04 Preliminary Determinations.

43. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.02 Research Guide.

44. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.03 Legal Background.

45. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 341.02 Research Guide.

46. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 362.22 Right to Custody of Minor Children.

1. Case Comment: Constitutional Law: The Limits of a Patient’s Right to Refuse Medical Treatment, Troy Rillo, April 1994, 46 Fla. L. Rev. 347.

2. Comments: Lagging Behind The Times: Parenthood, Custody, and Gender Bias in the Family Court, Cynthia A. Mcneely, Summer 1998, 25 Fla. St. U.L. Rev. 891.

3. A Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Casesa Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Cases, Caroline E. Johnson, Fall 1993, 21 Fla. St. U.L. Rev. 617.

4. The Minefield of Liability for Minors: Running Afoul Of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.

5. The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.

6. Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls For Statutory Reform, The Honorable Chris W. Altenbernd, Winter 1999, 26 Fla. St. U.L. Rev. 219.

7. Student Work: Redefining Parenthood: Removing Nostalgia From Third-Party Child Custody and Visitation Decisions in Florida, Sarah E. Kay, Fall 2009, 39 Stetson L. Rev. 317.

8. The Validity of Binding Arbitration Agreements and Children’s Personal Injury Claims in Florida After Shea v. Global Travel Marketing, Inc., Douglas P. Gerber, Fall 2003, 28 Nova L. Rev. 167.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

WordPress Tags: Florida,statute,TITLE,DOMESTIC,RELATIONS,CHAPTER,GUARDIANSHIP,PART,TYPES,STATUTES,ARCHIVE,DIRECTORY,Stat,Natural,guardians,guardian,parents,custody,wedlock,jurisdiction,Settle,settlement,action,person,Collect,estate,elections,life,insurance,policy,beneficiary,participant,owner,appointment,amounts,addition,subsection,provider,owners,employees,agents,injury,death,dangers,manner,failure,waiver,statement,text,NOTICE,MINOR,CHILD,READ,FORM,ENGAGE,DANGEROUS,USES,REASONABLE,CARE,CHANCE,CERTAIN,INHERENT,RECOVER,FROM,LAWSUIT,PERSONAL,DAMAGE,RESULTS,RISKS,REFUSE,SIGN,PARTICIPATE,paragraph,presumption,claimant,preponderance,extent,instruments,ward,obligation,HISTORY,NOTES,AMENDMENTS,amendment,June,instance,NOTE,REFERENCES,Automobile,Race,Meets,Motorsport,Uniform,Disclaimer,Interests,Power,requirements,ADMINISTRATIVE,CODE,Procedures,Public,Employee,Optional,Retirement,Program,Distributions,Investment,Plan,Accounts,LexisNexis,Case,NotesCASE,Treatises,Analytical,MaterialsTREATISES,MATERIALS,ReviewsLAW,REVIEWS,Judgment,daughter,agreement,negligence,Claire,Boutiques,Locastro,LEXIS,Despite,Georgia,purposes,circuit,determination,Perez,Giledes,dissolution,Lusker,Trial,information,defendant,interference,violation,declaration,State,Earl,Pursuant,wife,Webb,Mere,fact,obligations,virtue,Where,hospital,recovery,Children,Vigliotti,infant,girl,status,Costa,North,Broward,Hosp,Dist,Muniz,Civil,Procedure,Supplementary,Pleadings,Pretrial,Settlements,Estates,Practice,Guide,Beneficiaries,Rights,Legal,Background,Interest,Litigation,Intestate,Forms,Petition,Authorization,Execute,Appendix,Probate,Rules,General,Rule,Division,Marriage,Cohabitation,Partners,Parental,Basis,Determinations,Duties,Effect,Preliminary,Support,Order,Modification,Parent,Relationships,Relationship,Father,Overview,Nonparental,Proceedings,Type,Disabilities,Aspects,Manual,Succession,Decedent,Removal,Litem,Fiduciary,Powers,Actions,Claims,Scope,Real,Transactions,Parties,Deeds,Minors,Torts,VIII,Sources,Compensation,Release,Techniques,Releases,Enforcement,Avoidance,Activities,Motion,Into,Third,Persons,Enter,Agreements,Wills,Provisions,Fiduciaries,Appoint,Master,Checklist,Determine,Assumption,Risk,Whether,Enforceable,Establish,Requires,Guardianships,Southeast,Transaction,Unit,Affairs,Research,NotesLAW,Comment,Constitutional,Limits,Patient,Medical,Treatment,Troy,Rillo,April,Comments,Behind,Times,Gender,Bias,Court,Cynthia,Summer,Help,Argument,Abrogation,Tort,Doctrine,Abuse,Incest,Casesa,Cases,Caroline,Johnson,Fall,Minefield,Afoul,Corporate,Management,Jordan,Dresnick,Miami,Quasi,Marital,Common,Privette,Daniel,Calls,Statutory,Reform,Honorable,Chris,Altenbernd,Winter,Student,Work,Nostalgia,Visitation,Decisions,Sarah,Stetson,Arbitration,Shea,Global,Travel,Douglas,Gerber,Nova,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Human,Rock,Ropes,Course,Challenge,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,neither,behalf,boutique,indemnification,noncustodial,upon

Alaska statute on Parents right to sign away minors right to sue

Posted: February 17, 2012 | Author: Recreation Law | Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, Alaska, Department of Health, JimMoss, Minor, Parental Rights, Rock climbing, Waiver | Leave a comment

TITLE 9. CODE OF CIVIL PROCEDURE

Image via Wikipedia

CHAPTER 65. ACTIONS, IMMUNITIES, DEFENSES, AND DUTIES

Go to the Alaska Code Archive Directory

Alaska Stat. § 09.65.292 (2012)

Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity

(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.

(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.

(1) “child” means a minor who is not emancipated;

(2) “parent” means

(A) the child’s natural or adoptive parent;

(B) the child’s guardian or other person appointed by the court to act on behalf of the child;

(D) a person who has a valid power of attorney concerning the child; or

(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;

(3) “provider” has the meaning given in AS 09.65.290;

(4) “sports or recreational activity” has the meaning given in AS 09.65.290.

HISTORY: (§ 2 ch 67 SLA 2004)

NOTES: CROSS REFERENCES. –For findings and legislative intent statement applicable to the enactment of this section, see § 1, ch. 67, SLA 2004, in the 2004 Temporary and Special Acts.

EDITOR’S NOTES. –Section 3, ch. 67, SLA 2004 provides that this section applies “to acts or omissions that occur on or after September 14, 2004.”

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

WordPress Tags: Alaska,statute,Parents,TITLE,CODE,CIVIL,PROCEDURE,CHAPTER,ACTIONS,IMMUNITIES,DEFENSES,DUTIES,Archive,Directory,Stat,Parental,waiver,negligence,provider,Except,extent,misconduct,guardian,person,Department,Health,Social,Services,custody,attorney,grandparent,brother,HISTORY,NOTES,CROSS,REFERENCES,findings,statement,enactment,Temporary,Special,Acts,EDITOR,Section,omissions,September,USER,NOTE,article,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Rights,behalf,adoptive

Arizona limited right for parent to waive child’s right to sue

Posted: February 17, 2012 | Author: Recreation Law | Filed under: Arizona, Minors, Youth, Children | Tags: Animal, Arizona, Arizona State University, Equine, health, Horse, Minor, Parental Responsibility, Parental Rights, Release | 1 Comment

Image via Wikipedia

TITLE 12. COURTS AND CIVIL PROCEEDINGS

CHAPTER 5. LIMITATIONS OF ACTIONS

ARTICLE 3. PERSONAL ACTIONS

Go to the Arizona Code Archive Directory

A.R.S. § 12-553 (2011)

§ 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions

A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:

1. The person has taken control of the equine from the owner or agent when the injury or death occurs.

2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.

3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.

4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person’s representation of his skills, health and experience with and knowledge of equines.

B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.

C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner’s permission is not liable for injury to or death of the equine or the rider or handler.

D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:

1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.

2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

E. As used in this section:

1. “Equine” means a horse, pony, mule, donkey or ass.

2. “Release” means a document that a person signs before taking control of an equine from the owner or owner’s agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

HISTORY: Last year in which legislation affected this section: 1998

NOTES:

Premises Liability

SCOPE OF IMMUNITY.

This section does not shield stable owners from claims for negligent supervision, which do not involve horseback riding or activities directly relating thereto. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (Ct. App. 1998).

Grant of summary judgment in favor of the riding stable operator was proper where the document that the rider signed contained sufficient information to have been considered a release; further, this section does not completely deprive injured equine riders of a remedy and thus it does not violate the anti-abrogation clause, Ariz. Const. art. 18, § 6. Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557, 2003 Ariz. App. LEXIS 162 (Ct. App. 2003).

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

WordPress Tags: Arizona,TITLE,COURTS,CIVIL,PROCEEDINGS,CHAPTER,LIMITATIONS,ACTIONS,ARTICLE,PERSONAL,Code,Archive,Directory,owners,facilities,exception,definitions,owner,agent,person,injury,death,guardian,equipment,installation,interpretation,representation,skills,health,knowledge,Subsection,omissions,rodeo,rider,handler,permission,Equine,horse,pony,Release,welfare,HISTORY,Last,legislation,NOTES,LexisNexis,State,Surveys,Regulations,Premises,SCOPE,supervision,Bothell,Point,Acres,Ariz,Grant,judgment,operator,information,riders,abrogation,clause,Const,Lindsay,Cave,Creek,Outfitters,LEXIS,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Parental,Rights,wilful,lessor

New 3 day bicycle tour in Colorado leaves more questions than answers

Posted: February 16, 2012 | Author: Recreation Law | Filed under: Cycling | Tags: Interbike | Leave a comment

Where, when etc. not available on the website. Also Sponsorships is going to be tough, everyone will be in Vegas for Interbike

Seriously, doesn’t anyone have a calendar anymore? A new 3 day bicycle tour has just been announced in Colorado. However the dates are during the bicycle industry trade show; Interbike. What retailer or manufacture is going to be available?

On top of that there is nothing but a date on the webpage or press announcement. Where is the event going to be held? The name implies a flat ride, (flat as Colorado cyclists understand hills) however no other information is available. The article and the sponsors imply that the ride will be in the northeast part of the state.

See New cycling tour to roll through Colorado Eastern Plains towns

For more information about the ride, go to pedaltheplains.com.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, cycling, Pedal the Plains, #Colorado, #Interbike, #

WordPress Tags: bicycle,Colorado,Where,Also,Sponsorships,Vegas,Interbike,calendar,industry,retailer,announcement,event,hills,information,article,Eastern,Plains,towns,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Pedal

Headlines about Canada ski injuries is very misleading.

Posted: February 15, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Canada, Canadian Institute for Health Information, Hockey, Hospital, Ice skating, Ski, Snowmobile, Sport | 1 Comment

Actual report does not take into account participants and uses skiing just to get press, not because it is the worst sport.

This study, when you read the headline implies one idea: Skiing is dangerous. When you read the article, you get a completely reverse opinion of what the study reports. More importantly, the study is being used for an agenda rather than a way to either reduce or study injuries.

The study looked at winter sports injuries in Canada. It is a simple study showing how many hospital visits occurred each winter based on various activities. From the study, the headlines looked at these two groups of numbers.

Slopes-Related Injuries 2,300

Hockey Players 1,114

The headline then stated that slope injuries were twice as dangerous as hockey. Right off the bat, though you see an issue. This is just a total number of hospital visits. It means nothing, unless you know how many people participated in the sport or how many hour’s participants spent on the sport. Unless, and it very well may be possible, the number of people skiing and boarding in Canada equaled the number of people playing hockey, then the numbers really don’t point to anything. The numbers definitely do not point out that skiing and boarding is twice as dangerous as hockey.

After some more reading, more numbers pop to the surface.

Snowmobiling 1,126

Ice Skating 889

Tobogganing 171

Snowmobiling creates more hospital stays than hockey. However, hockey is the measurement that the criteria are compared to. Is this because everyone in Canada understands the real risks of hockey? Or is hockey perceived as a dangerous sport.

If the cause for the headline is the latter, then the headline was just made to get your attention. Snowmobiling is half as dangerous as skiing and riding so why was snowmobiling not used as the comparison.

Then the bomb shell drops. All of these sports combined do not make up 10% of the other winter sports injuries.

However, the hospitalization numbers pale in comparison to people who were simply injured by winter activities.

In Ontario alone, the report says, there were more than 45,000 emergency department visits — 285 a day — due to winter activities in 2010-2011.

And that’s just the tip of the iceberg, Fortin says, given that many of the hurt would have visited family doctors, walk-in clinics or just suffered through their injuries.

If you dig through the article, you gather these stats.

Slopes-Related Injuries (Skiing/Boarding)	2,300
Snowmobiling	1,126
Hockey Players	1,114
Ice Skating	889
Tobogganing	171
Total	5,600

5600 injuries in five sports nationwide are nothing compared to 45000 in just one city alone. Twenty days in Ontario and those injuries exceed the ones the false headline was blaring about.

There were some relevant points that could be pulled from the report.

1. Injuries remained relatively constant over the five years of the report for all five sports.

a. However, this number still has more value if compared to the overall number of participants. If participating went up or down that changes the fact the injuries were constant.

2. The age group with the largest number of injuries was young males between the ages of 10 and 19.

3. 33% of the head injuries in all five sports came from skiing and snowboarding.

a. There were 759 head injuries over the past five years on the slopes showing a decrease in head injuries…. Maybe.

So? Think

You cannot take headlines at face value. EVEN MINE! Headlines get you to read the article, and that is their sole purposes. You have to understand what the article is trying to say, where the information that makes up the article comes from and maybe, what is the writer trying to accomplish.

See Skiing injuries lead to twice as many hospital stays as hockey, new data shows

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, hospital, hospital visits, skiing, snowboarding, hockey, Canada,

WordPress Tags: Headlines,Canada,injuries,Actual,account,participants,article,opinion,agenda,winter,hospital,From,Slopes,Hockey,Players,hour,measurement,criteria,attention,comparison,Ontario,department,Fortin,clinics,Total,fact,males,Maybe,Think,MINE,purposes,information,writer,data,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,five

Research shows beacons have issues with multivictim searches

Posted: February 14, 2012 | Author: Recreation Law | Filed under: Avalanche, Search and Rescue (SAR), Skiing / Snow Boarding | Tags: Adventure travel, avalanche, Avalanche Beacons, Beacons, Mulit Victim Searches, Mulitvictim Searches, Ski Resort | Leave a comment

Problems may be more prevalent with older models of beacons

The issue is that some beacons will mask another beacon. If two victims with beacons are buried in close proximity then you may only see the one victim.

The article and issues are complex and are still be investigated, however if you are a professional or possibly use your beacon in multivictim situations you should read the article.

See Problems with multivictim searches or watch a Video about the issue.

What do you think? Leave a comment.

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #Avalanches, #Beacons, #multivictim, #Search, #SAR, Search and Rescue,

WordPress Tags: Research,beacons,Problems,beacon,victims,victim,article,situations,Video,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Avalanches,Search,Rescue,multivictim

This case is a summer camp lawsuit and the decision looks at venue and jurisdiction; however the complaint alleges medical malpractice against a camp!

Posted: February 13, 2012 | Author: Recreation Law | Filed under: Jurisdiction and Venue (Forum Selection), New York, Pennsylvania, Summer Camp | Tags: American Camp Association, Camp, Lawsuit, Medical Malpractice, New York, parent, Physician, summer camp, United States | Leave a comment

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

I really wish I could find out how this case resolved

This case covers a fact pattern that probably occurs weekly during the summer. The camper started suffering some illness. The camper was treated at camp by the camp physician and camp nurse then sent to a local hospital.

The parents sued the camp, camp physician, camp nurse and the treating physicians at the hospital for medical malpractice. The specific claim against the camp and its nurse and physician was a failure to “…timely recognize and properly care for and treat Jordan’s condition.”

In order to enroll the child in the camp, the parents were required to sign a camp contract. The contract covered many different details but was never identified by the court as a release.

The mother sued the camp in New York for the alleged injuries to her son.

So?

The second paragraph of the camp contract gave the camp permission to treat the child for any medical surgical or dental issues.

If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such as expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing adequate quantities of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps”.

(For other articles looking at the medical issues of camps and outdoor activities see Texas makes it easier to write a release because the law is clear, 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, ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp, Adult volunteer responsibility ends when the minor is delivered back to his parents.)

The basis of the legal arguments on appeal were the jurisdiction and venue of the lawsuit. (For more articles on venue and jurisdiction see Four releases signed and all of them thrown out because they lacked one simple sentence!, A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit., Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court., The legal relationship created between manufactures and US consumers.). The camp was located in Pennsylvania and the jurisdiction and venue clause required any suit to be in Pennsylvania.

The venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania”

The camp operated out of an office in Pennsylvania in the summer where the camp was located, but it had an office in New York during the winter. When the child was ill, he was taken to a hospital which was located in New York.

The camp, camp nurse and camp physician filed motions to dismiss the complaint based on the jurisdiction and venue clause in the contract. The hospital and other physicians being sued also filed motions to dismiss based on the jurisdiction and venue clause in the contract. The contract stated, “the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party”

To void a jurisdiction and/or venue clause the party opposing it must prove that the clause is:

…unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.

Without proof of such an issue, then jurisdiction and venue clause are valid and enforceable and will not be set aside. The plaintiff did not prove to the court any of the necessary elements to have the clause set aside.

Thus, the contract allowed the court to dismiss the camp, camp nurse and camp physician’s as defendant and force the plaintiff to re-file the lawsuit in the Wayne County Pennsylvania court. “Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable…”

Third Parties – non camp employees

The physicians and hospital argued the language in the contact and the relationship between themselves and the camp then extended the jurisdiction and venue of the contact to them. As such they should be sued in the Common Pleas court of Wayne County Pennsylvania. However, the court found the parties to the original contract, the camp and the parents did not foresee the contract extending that far to third parties.

To reach to third parties in such a case the contract must.

…there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them.

Because the parties to the original contract did not contemplate in their formation of the contract, that hospital and physicians would be part of the agreement, the court could not extend the agreement to them in the suit.

So Now What?

This is a good discussion and points out the importance of having a forum selection clause in your documents and especially your release.

The scary and still unanswered part of the decision is the claims of medical malpractice can still be raised against the camp in Pennsylvania.

Make sure you contact your insurance agent and verify that you would be covered if a medical-malpractice claim is brought against you in a case like this. If you have or employee physicians, nurses or other licensed health care providers, you will need to have specific medical-malpractice coverage to cover them if you are sued. However, coverage for a non-entity such as a camp is rarely written into a policy.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, camp, summer camp, medical, first aid, medical malpractice, camp nurse, camp physician, camp doctor, jurisdiction, venue, Pennsylvania, New York, PA, NY,

WordPress Tags: lawsuit,decision,venue,jurisdiction,complaint,malpractice,Bernstein,Wysoki,LEXIS,Slip,fact,camper,physician,hospital,parents,physicians,failure,Jordan,York,injuries,paragraph,permission,limitation,injections,surgery,allergy,quantities,medications,pharmacy,instructions,guardian,health,Texas,North,Carolina,Standards,Expert,Plaintiff,Camp,Adult,basis,arguments,Four,Recent,Colorado,Supreme,Court,requirements,Massachusetts,Salomon,France,relationship,consumers,Pennsylvania,clause,agreement,agents,District,Justice,Common,Pleas,Wayne,office,winter,forum,selection,contravention,policy,fraud,purposes,Thus,defendant,Third,Parties,employees,beneficiary,Second,transaction,signatories,agreements,purpose,signatory,enforcement,virtue,formation,discussion,importance,Make,insurance,agent,employee,providers,coverage,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,dental,enforceable

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

Posted: February 13, 2012 | Author: Recreation Law | Filed under: Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Camp, Contract, Forum selection clause, LexisNexis, Medical Malpractice, Motion (legal), New York, New York Supreme Court, New York Supreme Court Appellate Division, Summer Camp, Supreme Court | 1 Comment

Bernstein v Wysoki et al., 77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

Jordan Bernstein, an Infant, by His Mother and Natural Guardian, Malka Bernstein, et al., Respondents, v Randee Wysoki et al., Appellants, et al., Defendants. (Index No. 20686/07)

2008-06606, 2008-09740

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

77 A.D.3d 241; 907 N.Y.S.2d 49; 2010 N.Y. App. Div. LEXIS 6579; 2010 NY Slip Op 6475; 244 N.Y.L.J. 43

August 24, 2010, Decided

PRIOR HISTORY: Appeals from orders of the Supreme Court, Nassau County (Thomas P. Phelan, J.), entered June 13, 2008 and September 30, 2008. The order entered June 13, 2008, insofar as appealed from, denied that branch of the cross motion of defendants Randee Wysoki, Dina Farrell, Michael Farrell and Gregory Scagnelli to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause. The order entered September 30, 2008, insofar as appealed from, upon reargument, adhered to the original determination and denied that branch of the cross motion of defendant Julie Higgins which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.

Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 10774 (N.Y. Sup. Ct., Sept. 26, 2008)

Bernstein v. Wysoki, 2008 N.Y. Misc. LEXIS 9483 (N.Y. Sup. Ct., June 10, 2008)

COUNSEL: [***1] Martin Clearwater & Bell, LLP, New York City (William P. Brady, Timothy M. Smith and Stewart G. Milch of counsel), for appellants.

Napoli Bern Ripka, LLP, New York City (Denise A. Rubin of counsel), for respondents.

JUDGES: REINALDO E. RIVERA, J.P., HOWARD MILLER, THOMAS A. DICKERSON, SHERI S. ROMAN, JJ. RIVERA, J.P., MILLER and ROMAN, JJ., concur.

OPINION BY: DICKERSON, J.

OPINION

[*243] [***2] [**51] Dickerson, J.

Factual Background and the Camp Contract

On or about June 25, 2007 the plaintiff Malka Bernstein (hereinafter Malka) entered into a contract (hereinafter the Camp Contract) with the defendant Camp Island Lake (hereinafter the Camp) for her then 13-year-old son, the plaintiff Jordan Bernstein (hereinafter Jordan), to attend the Camp during summer 2007. The Camp is located in Starrucca, Wayne County, Pennsylvania, where it also maintains a summer office. The Camp maintains a winter office in New York City.

The second paragraph of the Camp Contract provided:

“If it is necessary to obtain off-camp medical/surgical/dental services for the camper, such expenses shall be paid by the parent except the portion supplied by the camp medical staff. Authority is granted without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper. The parent is responsible for all pre-existing medical conditions, out of camp medical/surgical/hospital/pharmaceutical/allergy expenses and for providing [*244] adequate quantities [***3] of necessary medications and allergy serums to camp in pharmacy containers with doctor’s instructions. The parent(s) or legal guardian(s) hereby states that the camper is in good, normal health and has no abnormal physical, emotional, or mental handicaps” (emphasis added).

The Camp Contract also contained a forum selection clause. The sixth paragraph of the Camp Contract provided:

“Enclosed with this agreement is $ 1000 per child enrolled in program. Payments on account of tuition (less $ 100 registration fee) will be refunded if requested before January 1st. Cancellations of sessions will not be accepted after January 1st. Thereafter, no refunds will be made. All refunds will be made on or about May 1st. Installments on the balance will be due on January 1st, March 1st, & May 1st. A returned check fee of $ 25 will be applied to all returned checks. These rates are subject to change without notice. Any outstanding balance precludes admission to camp. The [***4] venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania” (emphasis added).

The eighth and final paragraph of the Camp Contract provided, in part, “[t]he parent represents that he/she has full authority [**52] to enroll the camper/to authorize participation in activities/medical care and to contract the aforesaid.”

On or about August 8, 2007, while enrolled at the Camp, Jordan developed a pain in his lower abdomen. The defendants Randee Wysoki and Jill Tschinkel, who were the doctor and registered nurse, respectively, working at the Camp at the time, allegedly cared for Jordan at the Camp before taking him to the defendant Wilson Memorial Regional Medical Center (hereinafter Wilson Memorial), in Johnson City, Broome County, New York, in the vicinity of the Camp. While at Wilson Memorial from August 8, 2007 through August 10, 2007, Jordan allegedly received care and treatment from the defendants Dina Farrell, M.D., Michael Farrell, M.D., Gregory Scagnelli, M.D., Julie Higgins, R.P.A., Patricia Grant, R.N., and [***5] William Kazalski, R.N. Allegedly due to the failure of the defendants to timely recognize and properly care for and treat Jordan’s condition, he sustained various injuries.

[*245] The Instant Action

In November 2007, Jordan and Malka, both as Jordan’s guardian and in her individual capacity, commenced the instant action, inter alia, to recover damages for medical malpractice in the Supreme Court, Nassau County, against, among others, the Camp, Wilson Memorial, “Randy ‘Doe,’ M.D.,” ” ‘Jane Doe’ R.N.,” Dina Farrell, and Michael Farrell. Thereafter, the plaintiffs amended their complaint to substitute Wysoki for the defendant Randy “Doe,” and to add Scagnelli as a defendant.

After joinder of issue, the Camp moved, inter alia, to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract.

The plaintiffs moved for leave to serve an amended summons and complaint to add Higgins and Jill Tschinkel, R.N., as defendants.

The defendants Grant, Kazalski, and Wilson Memorial jointly cross-moved to change the venue of the action from Nassau County to Broome County pursuant to CPLR 510 and 511 (a) on the grounds that the defendants [***6] Grant, Kazalski, Dina Farrell, Michael Farrell, Scagnelli, and Higgins worked and/or resided in, or within approximately 10 minutes of, Broome County, and also because Wilson Memorial was located in Broome County.

The defendants Wysoki, Dina Farrell, Michael Farrell, and Scagnelli (hereinafter collectively the doctor defendants) jointly cross-moved, inter alia, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause in the Camp Contract. The doctor defendants observed that, pursuant to the last paragraph of the Camp Contract, Malka represented that she had the authority to bind Jordan to the Camp Contract. The doctor defendants further pointed out that the Camp Contract “outlined the terms and conditions of [Jordan’s] attendance at the Camp, including any necessary medical care and treatment or care and treatment decisions for [Jordan].” In that regard, according to the doctor defendants, “as all the parties to the instant action either provided care and treatment to [Jordan] at the Camp or at [Wilson Memorial] based on the Camp’s decision as to what care and treatment [Jordan] needed to receive, any litigation [***7] between the parties in this matter is subject to the terms and conditions of the [Camp Contract].”

[*246] Specifically, the doctor defendants argued that Wysoki was covered by the Camp Contract because she “was the physician working at the Camp who sent [Jordan] to [Wilson Memorial]” and thus “is part of this lawsuit through her work at [**53] the Camp.” The doctor defendants further argued that Dina Farrell, Michael Farrell, and Scagnelli were covered by the Camp Contract because they “treated [Jordan] at [Wilson Memorial] pursuant to the Camp’s decision as ‘in loco parentis’ and with the authority granted to the Camp . . . to have [Jordan] treated at a hospital” and thus “became involved in the care and treatment of [Jordan] based on the decision made of the Camp to take [Jordan] to [Wilson Memorial].”

The doctor defendants also argued that the Camp Contract contained a prima facie valid forum selection clause that should be enforced “absent a strong showing that it should be set aside.” The doctor defendants further argued that the forum selection clause, which by its terms applied to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents [***8] is a party,” applied to the instant action, since the plaintiffs’ tort claims depended on the existence of the Camp Contract. In that regard, the doctor defendants noted that “there would be no [tort claims] had [Jordan] not been a camper at the Camp during the Summer of 2007,” and that Jordan “would not have been a camper at the Camp without the terms and conditions of the [Camp Contract] being accepted and agreed to by [Malka].” Finally, the doctor defendants “noted that the Courts have held that [HN1] non-parties to an agreement containing a forum selection clause may be entitled to enforce a forum selection clause where the relationship to the signatory is sufficiently close or where the liability of a corporation and an officer is based on the same alleged acts” (citations omitted).

In an order entered June 13, 2008, the Supreme Court, inter alia, denied that branch of the Camp’s motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause, denied that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause, and granted the plaintiffs’ motion for [***9] leave to serve an amended summons and complaint (2008 N.Y. Misc. LEXIS, 9483, 2008 NY Slip Op 31711[U]).

The doctor defendants appeal, as limited by their brief, from so much of the foregoing order as denied that branch of their cross motion which was to dismiss the complaint based on the forum selection clause.

[*247] The Camp moved for leave to reargue that branch of its motion which was to dismiss the complaint insofar as asserted against it based on the forum selection clause. The Camp argued that the Supreme Court “blurred the distinctions between [a parent’s] legal ability to bind an infant plaintiff to the terms of a forum selection clause as opposed to a release of liability,” and that, “contrary to a release of liability, the law permits a parent of a minor child who signs a contract with a forum selection clause to bind the minor child to the terms and agreements set forth by the forum selection clause.”

The doctor defendants moved, inter alia, for leave to reargue that branch of their cross motion which was to dismiss the complaint insofar as asserted against them based on the forum selection clause. The doctor defendants argued that the Supreme Court erred in finding that Malka could not bind Jordan to the terms of the Camp Contract, [***10] including the forum selection clause, stating, “[t]he Courts have consistently held that non-signatory infants, who are the subject of and obtain benefit from an agreement signed by the parent, such as a camp enrollment contract, are considered to be third-party beneficiaries for the purpose of enforcing the terms of the contract.” Therefore, according to the doctor defendants, because Jordan “was a [**54] third-party beneficiary of the [Camp Contract] and as the forum selection clause in the [Camp Contract] is valid, the forum selection clause must be found to be applicable to [Jordan’s] claims as well as [Malka’s claims].”

The doctor defendants further argued that the Supreme Court erred in finding “that there was no factual predicate for the foreseeable enforcement [of the forum selection clause in the Camp Contract] by the non-signatory [doctor defendants].” Specifically, noting that the Camp Contract granted authority ” ‘without limitation to the camp/assigns in all medical matters to hospitalize/treat/order injections/anesthesia/surgery for the camper,’ ” the doctor defendants argued that the Camp “contract itself contemplated and provided the factual predicate for the medical treatment [***11] at issue.”

The doctor defendants argued that they “are exactly the ‘assigns’ that were contemplated by the [Camp Contract], as the same sentence in the contract states that the assigns may ‘hospitalize/treat’ [Jordan] and/or ‘order injections/anesthesia/surgery’ for [Jordan].” Thus, according to the doctor defendants, “the [Camp Contract] is the only mechanism by which [they as non-signatories] were able to ‘hospitalize/treat’ [Jordan] [*248] and, thus, the [Camp Contract] is the only mechanism by which there are claims for the non-signatory hospitalization and treatment at issue.”

The doctor defendants further argued that “there was a sufficiently ‘close relationship’ between the signatories to the [Camp Contract] and the non-signatory [doctor] defendants, to reasonably foresee that [the doctor defendants] or noted ‘assigns’ in the contract would seek to enforce the terms of the contract” (emphasis omitted).

Finally, regarding Wysoki in particular, the doctor defendants argued that the Supreme Court erred in finding “that the same acts are not alleged with regard to the claimed liability of the Camp and Dr. Wysoki.”

At some point in time, the plaintiffs served a supplemental summons and a second [***12] amended summons and complaint, inter alia, adding Higgins as a defendant. Higgins moved, inter alia, to dismiss the complaint insofar as asserted against her based on the forum selection clause.

In an order entered September 30, 2008, the Supreme Court, inter alia, granted leave to reargue to both the Camp and the doctor defendants, and, upon reargument, adhered to its original determination denying the respective branches of the Camp’s motion and the doctor defendants’ cross motion which were to dismiss the complaint insofar as asserted against them based on the forum selection clause (2008 N.Y. Misc. LEXIS,10774, 2008 NY Slip Op 33610[U]). The Supreme Court also denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.

The doctor defendants appeal from so much of the second order as, upon reargument, adhered to the original determination denying that branch of their cross motion which was to dismiss the complaint based on the forum selection clause, and Higgins jointly appeals from so much of the same order as denied that branch of her motion which was to dismiss the complaint insofar as asserted against her based on the forum selection clause.

Discussion

[HN2] ” ‘A [***13] contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the [*249] selected forum would be so gravely difficult that the challenging party would, [**55] for all practical purposes, be deprived of its day in court’ ” (Stravalle v Land Cargo, Inc., 39 AD3d 735, 736, 835 NYS2d 606 [2007], quoting LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 NYS2d 657 [2006]; see Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 765, 861 NYS2d 820 [2008]; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 790 NYS2d 684 [2005]).

[HN3] ” ‘Absent a strong showing that it should be set aside, a forum selection agreement will control’ ” (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836, 878 NYS2d 793 [2009], quoting Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 272, 557 NYS2d 140 [1990]).

The Forum Selection Clause Is Prima Facie Valid and Enforceable

In Horton v Concerns of Police Survivors, Inc. (62 AD3d 836-837, 878 NYS2d 793 [2009]), considering a forum selection clause under similar circumstances, we concluded,

“Here, the plaintiff failed to make the requisite ‘strong showing’ that the forum selection clause in her employment [***14] agreement, which requires disputes to be decided in the courts of the State of Missouri, should be set aside. Although the plaintiff averred that she is a single mother who resides with her teenaged daughter in Dutchess County, New York, this claim was insufficient, standing alone, to demonstrate that enforcement of the forum selection clause would be unjust. The plaintiff offered no evidence that the cost of commencing a wrongful discharge action in Missouri would be so financially prohibitive that, for all practical purposes, she would be deprived of her day in court. Moreover, the plaintiff did not allege that the inclusion of a forum selection clause in her employment contract was the product of overreaching, and she did not demonstrate that the clause is unconscionable.” (Citations omitted.)

[1] Similarly, here, the plaintiffs failed to demonstrate that the forum selection clause is unreasonable or unjust, or that a trial in Wayne County, Pennsylvania, would be so gravely difficult that, for all practical purposes, they would be deprived of their day in court. Moreover, the plaintiffs failed to allege, let [*250] alone demonstrate, that the forum selection clause was the [***15] result of fraud or overreaching. Under these circumstances, the plaintiffs failed to make any showing, let alone a strong showing, that the forum selection clause should be set aside on such bases (id.; see Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1331-1332, 887 NYS2d 121 [2009]; compare Yoshida v PC Tech U.S.A. & You-Ri, Inc., 22 AD3d 373, 803 NYS2d 48 [2005] [the Supreme Court properly declined to enforce a contractual forum selection clause fixing Tokyo as the forum for any litigation between the parties, since the plaintiff made “a strong showing that a trial in Tokyo would be so impracticable and inconvenient that she would be deprived of her day in court”]).

The Forum Selection Clause Applies to this Action

[2] Further, the forum selection clause applies to the instant tort action. Notwithstanding the placement of the forum selection clause in the sixth paragraph of the Camp Contract, which otherwise pertains to fees, tuition, and refund policies, the applicability of the forum selection clause does not turn on the type or nature of the dispute between the parties. Rather, by its express language, the forum selection clause applies to “any dispute that may arise out of this agreement or otherwise between the [***16] parties to which the camp or its agents is a party” (see [**56] Tourtellot v Harza Architects, Engrs. & Constr. Mgrs., 55 AD3d 1096, 1097-1098, 866 NYS2d 793 [2008] [rejecting the defendant’s claim that the subject forum selection clause in its agreement with the third-party defendant ” ‘was never intended to apply to third-party claims in personal injury and products liability actions such as . . . plaintiff’s action here,’ (since) under its broad and unequivocal terms, the applicability of the subject forum selection clause does not turn on the type or nature of the dispute between them; rather, it applies to ‘any dispute arising under or in connection with’ their agreement”]; see also Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 304, 546 NYS2d 591 [1989] [in a personal injury action to recover damages for negligence, the plaintiffs were bound by a forum selection clause in a camp enrollment contract which provided that “(t)he venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party shall be either the Village of Hancock, N.Y. Justice Court or the County or State Supreme Court in Delaware County”]).

Jurisdiction and Venue

[3] Moreover, the forum [***17] selection clause is enforceable as a general matter even though it does not include any language [*251] expressly providing that the plaintiffs and the Camp intended to grant exclusive jurisdiction to Pennsylvania. The forum selection clause relates to both jurisdiction and venue, and employs mandatory venue language, providing that the venue of any dispute arising out of the agreement or otherwise between the parties “shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania.” Accordingly, since the forum selection clause addresses jurisdiction and contains mandatory venue language, the clause fixing venue is enforceable (see Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C., 50 AD3d 185, 187, 851 NYS2d 311 [2008]; John Boutari & Son, Wines & Spirits, S.A. v Attiki Importers & Distribs. Inc., 22 F3d 51, 52 [1994]).

Enforceability of Forum Selection Clause by Nonsignatories

Notwithstanding the fact that the forum selection clause is prima facie valid and enforceable and applicable to the instant tort action as a general matter, this Court must further determine whether the defendant doctors and Higgins, who are not signatories to the Camp Contract, may enforce the forum selection clause.

[HN4] As [***18] a general rule, “only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement” (Freeford Ltd. v Pendleton, 53 AD3d 32, 38, 857 NYS2d 62 [2008]; see ComJet Aviation Mgt. v Aviation Invs. Holdings, 303 AD2d 272, 758 NYS2d 607 [2003]). However,

[HN5] “there are three sets of circumstances under which a non-party may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a ‘global transaction’ who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by [**57] virtue of the relationship between them.” (Freeford Ltd. v Pendleton, 53 AD3d at 38-39 [citations [*252] omitted]; see Direct Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *8, 2000 WL 1277597,*3 [SD NY 2000]; [***19] cf. EPIX Holding Corp. v Marsh & McLennan Cos., Inc., 410 NJ Super 453, 463, 982 A2d 1194, 1200 [2009] [“It is clear that in certain situations, a non-signatory to an arbitration agreement may compel a signatory to arbitrate. Since arbitration agreements are analyzed under traditional principles of state law, such principles allow a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel” (citations and internal quotation marks omitted)].)

[4] Here, relying on the provision in the Camp Contract by which the plaintiffs granted authority to the Camp and to its “assigns” in all medical matters, inter alia, to hospitalize and treat Jordan, Dina Farrell, Michael Farrell, Scagnelli, and Higgins claim to have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship. Significantly, however, there is nothing in the Camp Contract indicating that the Camp intended to use Dina Farrell, Michael Farrell, Scagnelli, and Higgins in particular in [***20] the event Jordan required “off-camp” medical services. In fact, there is nothing in the Camp Contract indicating that the Camp intended to use Wilson Memorial–located in a different state from the Camp–and its physicians and physician assistants in the event Jordan required medical services.

Under these circumstances, Dina Farrell, Michael Farrell, Scagnelli, and Higgins do not have a sufficiently close relationship with the Camp such that enforcement of the forum selection clause by them was foreseeable to the plaintiffs by virtue of that relationship (cf. Freeford Ltd. v Pendleton, 53 AD3d at 40-41 [“Even a cursory examination of these two agreements makes clear that (defendants) Lane Pendleton and Cairnwood Management had every reason to foresee that (plaintiff) Freeford would seek to enforce the forum selection clause against them”]; Dogmoch Intl. Corp. v Dresdner Bank, 304 AD2d 396, 397, 757 NYS2d 557 [2003] [“(a)lthough defendant was a nonsignatory to the account agreements, it was reasonably foreseeable that it would seek to enforce the forum selection clause given the close relationship between itself and its (signatory) subsidiary”]; Direct [*253] Mail Prod. Servs. v MBNA Corp., 2000 US Dist LEXIS 12945, *10-14, 2000 WL 1277597, *4-5 [***21] [where “a number of . . . clauses in the Agreement between (plaintiff) Direct Mail and (nonparty) MBNA Direct indicate that the signatories intended the contract to benefit related (nonsignatory defendant) MBNA companies,” MBNA Corporation and MBNA America Bank, N.A., were sufficiently closely related to MBNA Direct such that it was foreseeable that they would seek to enforce a forum selection clause contained in the subject agreement]).

[5] Conversely, however, we conclude that Wysoki, as an employee of the Camp, is entitled to enforce the forum selection clause despite her status as a nonsignatory to the Camp Contract. The forum selection clause itself applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party” (emphasis added). Moreover, we find that the [**58] Camp’s relationship with Wysoki, its on-site medical employee, was “sufficiently close so that enforcement of the clause [was] foreseeable by virtue of the relationship between them” (Freeford Ltd. v Pendleton, 53 AD3d at 39). Thus, Wysoki, despite being a nonsignatory to the Camp Contract, was entitled to enforce the valid forum selection clause. Accordingly, [***22] the Supreme Court should have granted that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki based on the forum selection clause.

Conclusion

The Supreme Court properly denied that branch of Higgins’ motion which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause. However, the Supreme Court improperly, upon reargument, adhered to its prior determination denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause.

Accordingly, the appeal from the order entered June 13, 2008 is dismissed, as that order was superseded by the order entered September 30, 2008, made upon reargument. The order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) [***23] and 501 based on the forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008 denying that branch of the doctor defendants’ cross motion which was to dismiss the complaint [*254] insofar as asserted against Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on the forum selection clause and thereupon granting that branch of the cross motion. As so modified, the order entered September 30, 2008 is affirmed insofar as appealed from.

Rivera, J.P., Miller and Roman, JJ., concur.

Ordered that the appeal from the order entered June 13, 2008 is dismissed, without costs or disbursements, as that order was superseded by the order entered September 30, 2008, made upon reargument; and it is further,

Ordered that the order entered September 30, 2008 is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and [***24] 501 based on a forum selection clause and substituting therefor a provision, upon reargument, vacating the determination in the order entered June 13, 2008, denying that branch of the cross motion of the defendants Randee Wysoki, Dina Farrell, Michael Farrell, and Gregory Scagnelli which was to dismiss the complaint insofar as asserted against Randee Wysoki pursuant to CPLR 3211 (a) (1) and 501 based on a forum selection clause and thereupon granting that branch of the cross motion; as so modified, the order entered September 30, 2008, is affirmed insofar as appealed from, without costs or disbursements.

PSIA-AASI Releases E-Learning Module for Entry Level Instructors

Posted: February 9, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: E-learning, Professional Ski Instructors of America (PSIA), PSIA-AASI, Winter sport | Leave a comment

Image via Wikipedia

In an effort to expand resources for those looking to become snowsports instructors, the Professional Ski Instructors of America (PSIA) and American Association of Snowboard Instructors (AASI) has launched the Entry Level Instructor’s Guide. This new e-learning tool details in easy-to-understand language what to expect in becoming a professional snowsports instructor.

The Entry Level Instructor’s Guide is the first in a series of online e-courses produced by PSIA-AASI that introduces the basics of teaching snowsports, PSIA-AASI as an organization, and PSIA-AASI models and concepts to prospective instructors or newly hired instructors. Each course integrates on-snow video content of snowsports classes in action, as well as downloadable attachments and links for additional research and learning.

“We’re always excited when we launch a new education product, and this one is at the start of a whole new range.” said Earl Saline, PSIA-AASI Professional Development Manager. “As technology has evolved, we are looking at how PSIA-AASI can evolve it’s delivery of education content and we’re excited to improve our online resources with the addition of these e-courses.”

The Entry Level Instructor’s Guide is a 14-minute online course that guides the viewer through a slide show providing an overview of what to expect as a new instructor. With voice-over and video content included, the course is an interactive experience that extends well beyond simply reading text on a screen. This free resource is available to anyone interested in learning more about snowsports instruction through the PSIA-AASI website, TheSnowPros.org.

“Our extension into e-learning came from a desire to provide valuable information for new instructors in a whole new way,” says Saline. “Rather than replace instructor training that a school might provide, the Entry Level Instructor’s Guide is meant to compliment that training for new staff. This piece was developed with members, trainers, and school director input, whose combination of knowledge and experience allowed us to create a great introduction to teaching snowsports that will translate regardless of where an instructor might be working or volunteering.”

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Professional Ski Instructors of America, #PSIA, American Association of Snowboard Instructors, #AASI,

WordPress Tags: PSIA,AASI,Releases,Module,Entry,Level,Instructors,effort,resources,Professional,America,American,Association,Snowboard,Instructor,Guide,tool,series,basics,concepts,action,attachments,education,product,Earl,Saline,Development,Manager,technology,addition,viewer,overview,text,resource,instruction,TheSnowPros,extension,information,Rather,trainers,director,combination,knowledge,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,snowsports

The helmet issue is so contentious people will say the stupidest things

Posted: February 8, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Heavenly Mountain Resort, Lake Tahoe, Ski, ski season, Snowboard | Leave a comment

Image via Wikipedia

County sheriff deputy reports a helmet would have saved the man’s life, even though he was wearing one and died of blunt force trauma.

In a sad case a snowboarder at Heavenly Mountain Resort avoided another skier and hit a sign post. See Snowboarder from England dies after crash at Heavenly. Another news source also reported the accident and received a quote from the investigating depty. The deputy was quoted in the article:

It is unknown if Perring was wearing a helmet at the time of the accident. A helmet would not have prevented the injuries that led to Perring’s death, Lovell said.

The first and most other reports stated the deceased, Perring was wearing a helmet. At the time of the quote, the newspaper reported the man died of blunt force trauma after hitting the sign, as reported by the deputy.

Perring was skiing on the resort’s Tamarack run about 3 p.m. when he attempted to avoid another skier, left the run and hit a sign post, Lovell said. He suffered blunt force trauma to his chest during the crash.

See Skier dies following collision with sign post at Lake Tahoe resort. Either the reporter was not quoting the deputy correctly (and obviously did not read their own article to put the quote in) or the deputy has been told or decided to say a helmet would have saved the person’s life.

They won’t. So far there have been 13 fatalities at ski areas this season and seven of the deceased were wearing a helmet. One person was not wearing a helmet and five of the reports do not identify if the deceased was wearing a helmet. See Skier/Boarder Fatalities 2011-2012 Ski Season

Do Something

I hope this is bad reporting, editing or something.

Wear a helmet. It will prevent a head injury if you are skiing or boarding. Just remember it will not save your life and it may make you feel more secure leading you to ski or board faster diminishing or eliminating any protection the helmet provides.

Most importantly, think!

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #Heavenly, Heavenly Mountain Resort, #snowboarding, #skiing, #helmet, blunt force trauma,

WordPress Tags: helmet,life,trauma,Mountain,Resort,Snowboarder,England,Another,news,accident,article,injuries,death,Lovell,newspaper,Tamarack,chest,Skier,collision,Lake,Tahoe,Either,reporter,person,areas,Boarder,Fatalities,Season,Wear,injury,Just,protection,Most,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,accidents

Crank Brothers Autioning Dreambikes for Charity

Posted: February 7, 2012 | Author: Recreation Law | Filed under: Cycling | Tags: bicycle, Crank Brothers, Cycling, Dream Bikes, Hans Rey, Mountain bike, Pedals, Sporting Goods | Leave a comment

Inspired by Hans Reyand his determination to give back to the sport that has done so much for him, crankbrothers created the dreambikes program. The dreambikes started as a way to display our complete range of products. These products coupled with an amazing frame and other beautiful components result in a bike that any of us would create in our dreams – the best products, coordinating colors, impeccable quality.That was not enough though. We knew that the dreambikes could be so much more. Over the next few months, we will auction off each dreambike and donate all of the proceeds to Wheels4Life, a charity created by Hans Rey that donates bicyclesto people in Third World countries. These bikes are used for transportation to work, to receive health care, or to school. For these people, the gift of a bicycle is life changing.For 2012, we have built 12 stunning dreambikes with the goal of raising $50,000. That’s enough to buy 500 bicycles and positively impact the lives of 500 human beings. That really is a dreambike.visit the site

LT stands for Long Travel, necessary in All-Mountainsituations where the descents are nasty but you plan to climb to the top. No problem when you have 185mm and 110mm of travel available, and thanks to TwinLoc you can lock it all out. SCOTT’s patented and unique TwinLoc lever allows the rider to keep both hands on the handlebars while selecting the desired travel settings or fully locking the suspension. Riders can switch between full travel with 185mm, Traction Mode with 110mm of rear travel, and complete lock out of both the fork and the Equalizer3 shock. The Genius LT is will let you explore the backcountry like nothing else.visit the dreambikes site

Hans Rey wanted to find a way to give back to the sport that has done so much for him, so he created Wheels4Life. Wheels4Life is an amazing charity that provides free bicycles for people in need of transportation in Third World countries. Often these people live in very primitive and remote areas with no access or means to public transportation. Having a bike can make all the difference in somebody’s life and can give them a chance to break out of the vicious poverty cycle. The gift of mobility, in the form of a bicycle, can do miracles. Learn more about the incredible work Hans Rey has done with Wheels4Life by watching the trailer for Wheels4Life The Film, A Story About Giving.visit the dreambikes site

january 29, 2012
cyclocross world championships
crankbrothers race club athlete, amy dombroski, will compete in koksijde (belgium) with the best of the world.

Tough fight on a case, release used to stop all but one claim for a CO ski accident

Posted: February 6, 2012 | Author: Recreation Law | Filed under: Colorado, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Adventure travel, AEE, Alpine skiing, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Camp Fire USA, Colorado, Lawsuit, Marketing, PSIA, Standards, Summary judgment | Leave a comment

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

But for an outrageous expert opinion, the release would have ended this lawsuit.

This case is a lawsuit against Breckenridge Outdoor Education Center (BOEC) and two of its employees by a disabled skier. Also sued was the manufacturer of the bi-ski, a device that allows people with no mobility to experience skiing. BOEC is a non-profit that provides tons of great services for people, most of whom are disabled. In this case, the plaintiff was a “legally blind, cognitively delayed, and physically limited by cerebral palsy” minor.

The plaintiff went to BOEC with a group people from Kansas, the Adventure Fitness Program at Camp Fire USA. Before going on the trip the plaintiff’s mother signed the necessary documents, including a release and reviewed the marketing and other information provided to her. Upon arrival, the plaintiff was taken to Breckenridge Ski Area with two BOEC employees. She was skiing in a bi-ski with the two defendant skiers. One was a lookout or later termed blocker in the case and one held tethers, which controlled the bi-ski.

On the second run, the three were skiing down a blue or intermediate ski run. A third party not part of the suit lost control and skied between the defendant employee and the bi-ski into the tethers. This separated the BOEC employee from the bi-ski. The bi-ski proceeded down the ski slope, out of control hitting a tree. The injuries to the plaintiff were not described.

The plaintiff through her mother sued the bi-ski manufacture, BOEC and the two BOEC employees. The plaintiff claimed four counts of negligence per se because of violations of the Colorado Skier Safety Act against the defendant employee who was holding the tethers. (To see a definition of Negligence Per Se under Colorado law see I nstructional Colorado decision Negligence, Negligence Per Se and Premises Liability.) The plaintiff argued another claim sounding in “negligence, willful and wanton, reckless, and/or gross negligence” against BOEC. The remaining claims were against the manufacturer of the bi-ski which was dismissed in another action not the subject of this opinion.

This motion was a motion for Summary Judgment filed by BOEC to eliminate the fifth claim, the negligence, willful and wanton, reckless, and/or gross negligence of BOEC.

Validity of a Release for a minor signed by a parent under the CO Statute

The court first looked at the requirements for a release signed by a parent to be upheld under Colo . Rev. Stat. § 13-22-107, generally that the parent’s signature must be voluntary and informed. Prior to this decision, the only case that has taken a look at this issue was Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) which I reviewed in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

In Wycoff, the release signed by the mother for the child was not upheld. The Wycoff release only had one sentence referring to releasing any claims. Here, the BOEC release had a minimum of six paragraphs informing the plaintiff’s mother that she was waiving her daughter and her legal rights.

Colorado law does not require the specific use of the word negligence in a release. However, all Supreme Court decisions to date had some language referencing waiving personal injury claims based on the activity the release covered.

The court concluded that the plaintiff’s mother signed a document that was clearly identified as a release, and thus she signed it voluntarily.

The court then looked at the release to see if it informed the plaintiff’s mother of the risks of the activity. The release had one full page that explained in detail the degree of risk involved in the BOEC programs. On top of that, the plaintiff’s mother had called and talked to the staff at BOEC as well as the staff of Adventure Fitness Program at Camp Fire USA that was taking her daughter on the trip.

After all of this, the plaintiff’s mother the court concluded was informed of the risks of the trip and the activity.

Validity of the Release

The court started by reviewing the Colorado requirements on how a release will be reviewed under Colorado law. This is fairly standard in all legal decisions.

Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, (Colo. App. March 31, 2011) (Reviewed here in Release stops suit for falling off horse at Colorado summer Camp.)

The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)

Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)

To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093

BOEC bears the burden of proving each of these elements

The court then went through each of the four steps to make sure this release met the requirements.

(i) there must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) the agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) the agreement may not violate public policy

Other courts had found that recreation services are not essential services and there is no unfair bargaining advantage in these types of services. Those recreational services in Colorado where courts had made this decision included mountain biking, bicycle rental, skydiving, handicapped downhill ski racing, and rental of ski equipment.

The issue of whether the party’s intentions are clear and unambiguous requires a review of the document. To do that the court looked at the requirements for a contract in general. (A release is a contract, an agreement between two parties with consideration flowing between the parties.) “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.“

In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.

The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.

Here, the release was written in simple and clear terms that were free from legal jargon, not inordinately long and/or complicated. Finally, the fact that the plaintiff’s mother indicated she understood the release satisfied this requirement.

The third requirement requires that the contract be fairly entered into. That means that one party is not so obviously disadvantaged that they are at the mercy of the other party. Because recreational activities are not essential services, and those services can be found through other parties who offer them this requirement is always met in the recreational setting. Essential services are those necessary for life. Examples are public transportation, utilities or food.

The last requirement is that the release does not violate public policy. This means that the release does not waive a duty of BOEC’s which cannot be waived. Again, recreational services do not make up a public policy or violate a public policy. In fact, under Colorado law, the public policy is to support recreational activities and thus have parent’s sign releases.

The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities. Colo. Rev. Stat. § 13-22-107(1)(a)(VI)

Was there a Material Misrepresentation or Fraud in the Inducement in the relationship between the plaintiff and her mother and the defendant BOEC.

Marketing makes promises that Risk Management must pay for.

A release is voidable if it was secured based on a material misrepresentation or fraud in the inducement. Here, the plaintiff argued that BOEC claimed it met the highest standards of the Association of Experiential Education (AEE), which it did not. The plaintiff claimed that BOEC claimed that it was accredited by AEE when it was not, and it met the standards of AEE for adaptive ski programs when there was not any standard for that program.

BOEC stated that at the time of the accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. BOEC also admitted that at the time of the accident the accreditation was for other programs of BOEC, and that AEE did not accredit adaptive ski programs.

Based on these two representations, the plaintiff then argued that BOEC misrepresented itself to the plaintiff.

To establish fraud, a plaintiff has to prove that

(1) a fraudulent misrepresentation of material fact was made by the defendant;

(2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false;

(3) the plaintiff relied on the misrepresentation;

(4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and

(5) the reliance resulted in damages.

Here, the plaintiff could not prove that it relied on the misrepresentations of the BOEC and that the reliance was justified. The court did not find that BOEC had not misrepresented itself or its credentials. The court found the plaintiff had not proven reliance the final step needed to prove fraud.

The court also found that BOEC had not misrepresented the facts to the extent needed to be an intentional fraudulent misrepresentation.

At the time, BOEC followed the adaptive ski standards of the Professional Ski Instructors of America, (PSIA). BOEC was accredited by AEE for its other programs. The letter which had the critical information in it about standards, and accreditation was a letter used for all BOEC programs.

Was the conduct of the parties Willful and Wanton rising to the level of Gross Negligence?

This is always an issue when a release is signed because if the actions of the defendant rise to this level than the release cannot be used to stop claims for gross negligence or intentional acts.

“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.”

The court then reviewed the opinion of the plaintiff’s expert witness. His report labeled the BOEC program as inherently unsafe and went on from there. (See Come on! Expert’s will say anything sometimes.)

Based on the expert witness report, the court did not dismiss the last claim of the plaintiffs for gross negligence. The opinion of the expert raised enough facts to create an issue that could not be decided by the court.

All but this final claim was dismissed by the court.

A well-written release in this case almost won the day; it definitely took a lot of fight out of the plaintiff’s case. The only issue the release could not beat was an outrageous opinion by the plaintiff’s expert witness.

So Now What?

1. Don’t make the court look for a clause to support your release. Put in the release the magic word negligence and that the signor is giving up their legal rights for any injury or claims based on your negligence. Here, the court was able to find six paragraphs that did the same thing. You can eliminate a few paragraphs if you are up front and honest. You are giving up your right to sue me for any claim or loss based on my negligence.

2. Identify your document as a release. The court based its decision upholding the release based on the language in the release, and because it was labeled a release.

3. If you communicate with a client in advance of the activity about the risks or the release, make a note of it. This again was important to the court in proving the mother was not misled and knew what she was signing.

4. Besides specifically informing the signor of the fact they are giving up their right to sue, your release needs to point out the risks of your activity. Here, the court points out the page long list of risks as important in upholding the release. Too many releases do not include the risks.

5. Make it easy for your guests to contact you and ask questions about your release, your activity and the risks. Again, the court pointed this out as a specific issue that was important in the court finding for the defendant in this case.

6. The burden on proving that the release meets the requirements needed in a specific state is on the defendant. Consequently, it behooves the defendant recreation provider to place those requirements in the release so the plaintiff, upon signing, helps prove the document is valid.

7. Marketing sinks more ships in the outdoor recreation industry than injuries. Make sure your marketing matches who you are and what you do, and that you are not misrepresenting who you are and what you can do. In this case, BOEC escaped a disaster with its marketing of standards and accreditation that either did not exist, or that it did not have.

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.

G-YQ06K3L262

What do you think? Leave a comment.

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2023 Summit Magic Publishing, LLC

WordPress Tags: Tough,accident,Squires,Goodwin,Dist,LEXIS,opinion,lawsuit,Breckenridge,Outdoor,Education,Center,BOEC,employees,Also,manufacturer,device,plaintiff,Kansas,Adventure,Program,Camp,Fire,information,Upon,arrival,Area,defendant,lookout,employee,tree,injuries,negligence,violations,Colorado,Skier,definition,Instructional,decision,Premises,action,Summary,Judgment,Release,Statute,requirements,Colo,Stat,signature,Prior,Wycoff,Grace,Church,Assemblies,Releases,attorney,guests,clientele,Here,paragraphs,daughter,Supreme,Court,decisions,injury,degree,Exculpatory,agreements,Hamill,Cheley,Camps,March,horse,determination,sufficiency,agreement,Livery,Riehl,Although,policy,disadvantage,mercy,Chadwick,Colt,Ross,Outfitters,criteria,intentions,Robinette,recreation,advantage,mountain,bicycle,rental,equipment,Interpretation,provision,instrument,harmony,meanings,reference,clauses,jargon,fact,requirement,Essential,life,Examples,transportation,utilities,food,Again,youth,entities,Material,Misrepresentation,Fraud,Inducement,relationship,Risk,Management,Association,Experiential,lesson,policies,procedures,accreditation,representations,representation,reliance,misrepresentations,credentials,extent,Professional,Instructors,America,PSIA,letter,Willful,Wanton,Gross,Come,Expert,plaintiffs,clause,Identify,client,Besides,Make,provider,industry,disaster,Leave,Twitter,LinkedIn,Edit,RecreationLaw,Facebook,Page,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Human,Rock,Ropes,Course,Challenge,Summer,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,skiers,third,four,releasor,releasee,whether,adaptive,signor

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

Posted: February 6, 2012 | Author: Recreation Law | Filed under: Colorado, Legal Case, Release (pre-injury contract not to sue), Ski Area | Tags: AEE, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Breckenridge Ski Resort, Colorado, Colorado Ski Safety Act, Denver, Federal Rules of Civil Procedure, Minor, PSIA, Release, Summary judgment, United States Magistrate Judge | Leave a comment

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

To Read an Analysis of this case see Tough fight on a case, release used to stop all but one claim for a CO ski accident

Kimberly N. Squires, by and through her Guardian and Natural Parent, LYLE K. Squires, Plaintiff, v. James Michael Goodwin, an individual, Breckenridge Outdoor Education Center, a Colorado corporation, and Mountain Man, Inc., a Montana corporation, Defendants.

Civil Action No. 10-cv-00309-CBS-BNB

United States District Court For The District Of Colorado

2011 U.S. Dist. LEXIS 129234

November 8, 2011, Decided

November 8, 2011, Filed

Prior History: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 128565 (D. Colo., Nov. 7, 2011)

CORE TERMS: ski, bi-ski, skiing, misrepresentation, willful, reckless, citations omitted, exculpatory, deposition, wanton, trip, instructor, adaptive, omission, outdoor, summary judgment, wilderness, public policy, bargaining, mountain, knot, recreational, disability, recklessly, daughter’s, sit-down, entity, lesson, negligence claim, precautions

COUNSEL: [*1] For Kimberly N. Squires, by and through her guardian and natural parent, Lyle K. Squires other, Lyle K. Squires, Plaintiff: Colleen M. Parsley, LEAD ATTORNEY, Gregory A. Gold, Gold Law Firm, L.L.C, Greenwood Village, CO; Richard Waldron Bryans, Jr., Bryans Law Office, Denver, CO.

For James Michael Goodwin, an individual, Defendant: Gary L. Palumbo, Bayer & Carey, P.C., Denver, CO.

For Breckenridge Outdoor Education Center, a Colorado corporation, Defendant: Deana R. Dagner, Joan S. Allgaier, John W. Grund, Grund Dagner, P.C., Denver, CO.

JUDGES: Craig B. Shaffer, United States Magistrate Judge.

OPINION BY: Craig B. Shaffer

OPINION

MEMORANDUM OPINION AND ORDER

This civil action comes before the court on Defendant Breckenridge Outdoor Education Center’s (BOEC’s) Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52). On September 16, 2010, the above-captioned case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. 636(c), Fed. R. Civ. P. 73, and D.C. COLO. LCivR 72.2. (See Doc. # 42). The court has reviewed the Motion, Ms. Squires’ Response (filed January 6, 2011) (Doc. # 56), BOEC’s Reply (filed January [*2] 24, 2011) (Doc. # 61), BOEC’s Notice of Supplemental Authority (filed April 18, 2011) (Doc. # 76), Ms. Squires’ Response to BOEC’s Notice of Supplemental Authority (filed May 12, 2011) (Doc. # 81), Ms. Squires’ Reply Memorandum Brief Regarding Misrepresentation (filed May 30, 2011) (Doc. # 84), BOEC’s Surreply Brief regarding Misrepresentation (filed June 6, 20110) (Doc. # 89), the affidavit, the exhibits, the arguments presented at the hearing held on July 20, 2011, and the entire case file and is sufficiently advised in the premises.

I. Statement of the Case

Ms. Squires’ claim against BOEC arises out of a ski accident (“the Accident”) that occurred at Breckenridge Ski Resort, Colorado on February 13, 2008. BOEC is a nonprofit Colorado corporation that provides outdoor experiences for people with disabilities. (See SAC (Doc. # 13) at 2-3, ¶ 6; Scheduling Order (“SO”) (Doc. # 40) at 7 of 15 (Undisputed Facts)). At all relevant times, Ms. Squires was 17 years old, legally blind, cognitively delayed, and physically limited by cerebral palsy. (See SAC at 1-2, ¶ 2).

BOEC employed Jennifer Phillips as a para-ski instructor at the time of the Accident. (See SO at 7 of 15). On the morning of [*3] the Accident, Ms. Squires was paired with Ms. Phillips and placed in a bi-ski. (See id.). The bi-ski was manufactured by Defendant Mountain Man. (See id.). Ms. Phillips and Ms. Squires went to Peak 9 at Breckenridge Ski Resort. (See id.). Ms. Phillips utilized tethers as a means to control the bi-ski. (See SAC at 5 of 13, ¶ 16). On their second run, Ms. Squires and Ms. Phillips skied down Cashier trail. (See SO at 7 of 15). Defendant Goodwin was also skiing down Cashier trail. (See id.). Defendant Goodwin lost control and skied into the tethers between Ms. Squires and Ms. Phillips. (See Goodwin Deposition, Exhibit B to Motion (Doc. # 52-2), at 2, 3 of 3). Due to the force of the collision with Defendant Goodwin, Ms. Phillips lost control of the tethers and the bi-ski containing Ms. Squires continued down Cashier trail unrestrained until it collided with a tree. (See SAC at 5 of 13, ¶ 19; BOEC’s Answer to SAC (Doc. # 27) at 2-3 of 8, ¶ 12). Ms. Squires was injured when the bi-ski collided with a tree. (See SO at 7 of 15).

Ms. Squires filed her initial Complaint on February 12, 2010, alleging five claims for relief against Defendants Goodwin and BOEC based on diversity of citizenship [*4] jurisdiction. (See Doc. # 1). She filed her First Amended Complaint (“FAC”) on April 15, 2010, alleging nine claims for relief against Defendants Goodwin, BOEC, and Mountain Man, Inc. (“Mountain Man”). (See Doc. # 5). Ms. Squires refiled her First Amended Complaint on April 19, 2010 pursuant to a request from the Clerk of the Court. (See Doc. # 11). Ms. Squires filed her Second Amended Complaint (“SAC”), the current operative pleading, on June 2, 2011, alleging nine claims against Defendants Goodwin, BOEC, and Mountain Man. (See Doc. # 13). Ms. Squires’ First, Second, Third, and Fourth Claims for Relief allege negligence per se under the Ski Safety Act, Colo. Rev. Stat. § 33-44-109(2) and common law negligence against Defendant Goodwin. (See Doc. # 13 at 6-7 of 13). Ms. Squires’ Fifth Claim for Relief alleges negligence, willful and wanton, reckless, and/or gross negligence against Defendant BOEC. (See id. at 8-9 of 13). The court granted summary judgment in favor of Defendant Mountain Man on Ms. Squires’ Sixth, Seventh, Eighth, and Ninth Claims for Relief for strict products liability, breach of implied warranty of fitness and/or merchantability, common law negligence, and breach [*5] of express warranty. (See id. at 9-12 of 13; “Order on Pending Motions” (Doc. # 119)).

Defendant BOEC moves for summary judgment on the Fifth Claim for Relief in the SAC on the grounds that Ms. Squires is prevented from bringing the claim by a valid release of liability.

II. Standard of Review

“Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law.” Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F. Supp. 2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted). “When applying this standard, the court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Id. “All doubts must be resolved in favor of the existence of triable issues of fact.” Id. However, if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion [*6] of fact, “the court may . . . grant summary judgment if the motions and supporting materials — including the facts considered undisputed — show that the moving party is entitled to it.” Fed. R. Civ. P. 56(e).

III. Analysis

A. Release of Negligence Claim under Colo. Rev. Stat. § 13-22-107

Prior to the Accident, on January 13, 2008, Ms. Squires and her mother, Mrs. Squires, signed an “Acknowledgement [sic] of Risk and Release of Liability” (“Release”). In Colorado, the parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence. Colo. Rev. Stat. § 13-22-107. The statute requires that such a decision be “voluntary and informed.” Colo. Rev. Stat. § 13-22-107(1)(a)(V).

(1)(a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:

(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;

(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities [*7] may be unwilling or unable to provide the activities;

(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.

(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;

(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and

(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

. . .

(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.

(4) Nothing in this section shall be construed to permit [*8] a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

Colo. Rev. Stat. § 13-22-107.

“Because waiver is an affirmative defense, the Defendant has the burden to prove waiver.” Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) (Furman, J, dissenting) (citing C.R.C.P. 8(c)). Ms. Squires argues that BOEC is not entitled to summary judgment on the Fifth Claim for Relief based on the Release because her mother’s decision to sign the Release was not informed.¹ Relying on Wycoff, 251 P.3d at 1260, Ms. Squires argues that the decision was not informed because the Release did not inform Mrs. Squires of the risks associated with BOEC’s winter program, failing to “mention skiing, skis, ski slopes, ski lifts, or anything at all specific to skiing.” (See Response (Doc. # 56) at 9 of 19).

1 Ms. Squires concedes that Mrs. Squires signed the Release voluntarily. (See, e.g., Doc. # 84-4 at 6 of 7).

In Wycoff, a 17-year old minor attending a church-sponsored event was injured when she was riding [*9] on an inner-tube towed by an ATV on a frozen lake. Wycoff, 251 P.3d at 1263. The minor and her mother had signed the registration and information form that contained a release. Id. While the minor was aware that riding on an inner-tube towed by an ATV on a frozen lake would be an activity at the event, her mother was not. Wycoff, 251 P.3d at 1263. The court in Wycoff interpreted § 13-22-107(3) to require that a parent’s decision to release a child’s prospective claims be “voluntary and informed.” Id. Although the court noted the standard for informed consent to a medical procedure, it did not adopt that standard for a parental release of claim. Wycoff, 251 P.3d at 1264. Without setting forth precisely how much information is required for a parental release to be “voluntary and informed,” the court held that a one-page “registration and information” form, which happened to contain one sentence in the last paragraph stating, “I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation,” was legally insufficient to release a child’s negligence claim. Id. at 1265. The court agreed that “[a] release need not contain [*10] any magic words to be valid,” but recognized that “in every Colorado Supreme Court case upholding an exculpatory clause, the clause contained some reference to waiving personal injury claims based on the activity being engaged in.” Wycoff, 251 P.3d at 1265. The “registration and information” form held inadequate in Wycoff made no reference to the subject activity or to waiving personal injury claims, nor did it provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. Id.

The Release here provides in pertinent part:

In consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities. . . I, and/or the minor student, and/or the person for which I am legal guardian, the undersigned:

1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that

2. Understand that risks during outdoor programs [*11] include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical facilities or while traveling to and form the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.

3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.

4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.

I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes [*12] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.

(See Exhibit A to Motion (Doc. # 52-1)). On the other side of the Release was a letter of explanation (“Greetings Letter”) that the court may consider as evidence of whether the decision to sign the Release was informed. (See id. at 4 of 5; Deposition of Sara Squires, Appendix 4 to Ms. Squires’ Reply (Doc. # 84-4) at 3 of 7). See Wycoff, 251 P.3d at 1264 (“We will assume for purposes of this case that a facially deficient exculpatory contract could be cured by extrinsic evidence.”); Glover v. Innis, 252 P.3d 1204, 1209 (Colo. App. 2011) (extrinsic evidence permitted not to contradict or vary terms of an agreement, but to show waiver of a provision of the agreement). The Greetings Letter stated in pertinent part:

Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure [*13] or activity is unclear to you.

While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledgement of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places[.]

(See Doc. # 61-1 at 4 of 5).

A finding that Mrs. Squires’ decision to sign the Release was informed is not inconsistent with the analysis in Wycoff, 251 P.3d at 1260. First, the release in Wycoff was one sentence that “state[d] only that plaintiff will not hold Grace ‘responsible for any liability which may result from participation,'” surrounded by sentences addressing different topics. Here, the Release was clearly entitled at the top “Acknowledgement [sic] of Risk and Release of Liability,” in large, italicized letters. (See Doc. # 52-1). The first sentence again states, “ACKNOWLEDGMENT OF [*14] RISK AND RELEASE OF LIABILITY (REQUIRED)” in capital letters and underlined. Id. The Release signed by Ms. Squires was clearly identified as a waiver and release of liability.

Second, the Release includes one full page that explains in detail the degree of risk involved with BOEC outdoor programs, events, activities, and/or courses; the extent of possible injuries from any activity, including injury, permanent disability, fatality, and other risks not known or not reasonably foreseeable; participation in activities and the use of equipment; and the release of BOEC from any all and claims, whether resulting from negligence or otherwise. (See Doc. # 52-1). Ms. Squires was a participant in a BOEC winter outdoor program that included skiing. The Release refers to outdoor programs and sets forth a detailed explanation of the possible risks of injury to property and person. (See id.).

It is conceded that when she signed the Release, Mrs. Squires knew that her daughter would be skiing during her trip to Colorado. (See Doc. # 56 at 10 of 19). Nevertheless, Ms. Squires argues that the Release did not provide any, much less adequate, information regarding the inherent risks of skiing or describe [*15] the particular risks of the sit-down ski that she used and that it would be controlled by her instructor with tethers. Ms. Squires provides an affidavit from Mrs. Squires stating that, in response to her telephone inquiry, a BOEC employee instructed her to mark “Sit-Down” and “Bi-Ski” on the “Wilderness/Ski Group Information” Form, and that no one from BOEC explained to her what a “Sit-Down” or “Bi-Ski” was. (See Affidavit of Sara A. Squires, Exhibit 1 to Response (Doc. # 56-1); Doc. # 84-4 at 5 of 7).

Mr. and Mrs. Squires were provided the BOEC forms and applications to be completed in advance of the trip, including the Release, by Andrea Breier, Director of the Adventure Fitness Program at Camp Fire USA at the time, the group that organized the ski trip that Ms. Squires attended. (See Affidavit of Andrea Breier, Exhibit D to Reply (Doc. # 61-1) at 1-2 of 5). Mrs. Squires had opportunities to ask questions about the ski trip and the forms before her daughter’s trip to Colorado. (See id. at 2 of 5). Ms. Breier specifically recalls explaining to Mrs. Squires that Ms. Squires would be seated when skiing, that BOEC uses sleeping bags to pad the bucket seat, that students in wheelchairs [*16] have two assistants helping them, and that the instructor uses guide ropes to steer the ski down the mountain. (See id.). Mrs. Squires knew that her daughter would be using some form of sit-down ski on this trip because her primary means of mobility was by wheelchair and she would not have been able to ski down the mountain standing up. (See id.). Mrs. Squires completed the BOEC application and Release and provided Ms. Breier a typewritten summary that explained Ms. Squires’ conditions, limitations, and medical needs. (See Doc. # 61-1 at 2 of 5, ¶ 11). Mrs. Squires also wrote a detailed letter to BOEC, stating in pertinent part:

Sometimes during activities such as skiing, kids who have an implanted baclofen pump can experience withdrawal.² If she is in a “bucket”/”basket” type ski, where she might be more scrunched up, or her body is more compressed down, then the catheter line can become pinched or kinked up. If they use the bucket type, then her rehab doctor recommends that she ski for about 2 hrs and then be allowed to stand up to help “straighten” out the line. Then, go back to skiing again. If they use a “sit down ski” where she is more upright (like sitting in a wheelchair), then [*17] she shouldn’t have any problems. I am not familiar with the types of equipment they have, but am only saying what other families whose children also have pumps have told me about the equipment.

(Letter from Sara Squires dated February 12, 2008, Exhibit E to Reply (Doc. # 61-2)).

2 Ms. Squires had a surgically inserted baclofen pump, which dispenses medication for muscle spasms.

Despite that the Release does not specifically include the words, “skiing,” “sit-down,” or “bi-ski,” Mrs. Squires understood that her daughter would be seated in some type of sit-ski on the trip. While Mrs. Squires claims to have had no knowledge of what a sit-down bi-ski was at the time she signed the Release, the evidence demonstrates that she had sufficient notice and knowledge of the activities that her daughter would be participating in and the associated risks. Mrs. Squires conscientiously made inquiries to BOEC about the forms and the trip. (See Doc. # 84-4 at 5 of 7). Mrs. Squires was familiar with releases generally. (See Doc. # 84-4 at 4 of 7 (“Because . . . every single program on the face of the earth has a risk and release of liability and some verbiage to that effect.”); see also 6 of 7 (“It’s the [*18] same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberley’s behalf for everything that she has ever participated in.”). Ms. Squires’ parents were informed that she would be skiing in Breckenridge, Colorado, in a type of sit-down ski, controlled by an instructor with tethers. The Release specifically refers to outdoor activities and associated risks and was accompanied by a cover letter that explained the risks involved with ski lessons, including the possibility of serious injury and even death. The Release provides that risks during outdoor programs include injury, permanent disability, fatality, severe social or economic losses, and other risks not known or reasonably foreseeable. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 8 (that “mother may not have contemplated the precise mechanics of her daughter’s fall does not invalidate the release and does not create a genuine issue of material fact”). When she signed the Release, Mrs. Squires had sufficient information “to assess the degree of risk and the extent of possible injuries from any activity,” Wycoff, 251 P.3d at 1265, and to make an informed decision to release any claims that [*19] Ms. Squires may have had against BOEC.

B. Validity of Release

The court having determined that the decision to release Ms. Squires’ prospective claims was informed pursuant to Colo. Rev. Stat. § 13-22-107(1)(a)(V), the court must next determine whether the Release was legally valid. “Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, * 1 (Colo. App. March 31, 2011) (citation omitted). “The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998); see also Robinette v. Aspen Skiing Co., L.L.C., 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (D. Colo. Apr. 23, 2009), aff’d, 363 Fed. Appx. 547 (10th Cir. 2010) (citing B & B Livery, 960 P.2d at 136). “Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the [*20] other’s negligence.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (citation omitted). “To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy.” Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (citations omitted). BOEC bears the burden of proving each of these elements. See id.

Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1112 (10th Cir. 2002) (public need and disparity of bargaining power absent in context of mountain biking and bicycle rental); Jones v. Dressel, 623 P.2d 370, 377-78 (Colo. 1981) (because recreational skydiving service “was not a matter of practical necessity for even some members of the public” and thus “not an essential service,” Defendant did not possess a decisive [*21] advantage of bargaining strength over plaintiff); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409-10 (D. Colo. 1994) (handicapped downhill ski racing was “a recreational activity, . . . neither a matter of great public importance nor a matter of practical necessity”) (citing Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 475 (D. Colo. 1992) (upholding an exculpatory clause in the context of ski equipment rental)). Ms. Squires does not challenge BOEC’s ability to prove this first element.

Second, the court evaluates whether the Release expresses the parties’ intent in clear and unambiguous language. “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996) (citation omitted). Ms. Squires argues that the Release is ambiguous and, therefore, invalid, because the language, “[a]lso I understand that I share the responsibility for safety during all activities” expresses a “shared regime of risk,” contradicts the language “I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, [*22] and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity,” and makes the participant/signer solely responsible for any injuries or bad outcomes. (See Doc. # 52-1; Doc. # 56 at 15-17 of 19).

“Terms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation.” Ad Two, Inc. v. City and County of Denver, 9 P.3d 373, 376 (Colo. 2000). “In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.” Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (citations omitted). “The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.” Moland v. Industrial Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004). Specific terms, such as “negligence,” are not required for an exculpatory agreement to shield a party from negligence claims. Potter, 849 F. Supp. at 1410 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989) [*23] (noting that the release was written in simple and clear terms that were free from legal jargon, the release was not inordinately long and complicated, the plaintiff indicated in her deposition that she understood the release, and the first sentence of the release specifically addressed a risk that described the circumstances of the plaintiff’s injury)). The inquiry is not whether specific terms are used, but “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. See also Chadwick, 100 P.3d at 467 (Colorado Supreme Court has “previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions”). “If there is no ambiguity, a contract will be enforced according to the express provision of the agreement.” B & B Livery, 960 P.2d at 136.

Here, the Release is written in clear and simple terms, is free from legal jargon, is neither long nor complicated, and encompasses the risks encompassed by Ms. Squires’ Fifth Claim for Relief. The Release specifically includes claims for [*24] negligence. The specific risk of what occurred in the Accident is encompassed within the risks of BOEC’s outdoor winter program. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at * 3 (“specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the risks of skiing/riding”) (internal quotation marks omitted). The court does not find the Release ambiguous.

Nor does the court find the Release is reasonably susceptible to Ms. Squires’ interpretation. Ms. Squires interprets two provisions in the Release in a way that strains logic to conclude that the Release as a whole is ambiguous. That Ms. Squires agrees to share the responsibility of safety during BOEC activities is not mutually exclusive from Ms. Squires agreeing to release claims arising out of BOEC activities.

Ms. Squires also notes the Release language that “BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course,” claiming that BOEC failed to do this, and querying how BOEC could shift this responsibility to its participants. Ms. Squires claims that BOEC’s failures related to the equipment used, terrain selected, use of volunteers, control of [*25] the bi-ski, training and selection of instructors, assessment of plaintiff’s disabilities, provision of instructions and safety precautions, and prevention of accidents with other skiers. The Release specifically addresses that “although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety.” (See Doc. # 52-1).

When the Release is read as a whole and the words are given their generally accepted meaning, it is susceptible to one reasonable interpretation: that although BOEC has taken precautions, it cannot guarantee absolute safety; that there are serious risks involved in BOEC activities; and that, to participate in BOEC activities, the releaser agrees to release BOEC from any and all claims related to a BOEC activity. The Release by its plain language expresses the parties’ intent to release BOEC from liability for all personal injuries resulting from negligence in conjunction with a BOEC activity.

Third, the court examines whether the Release was fairly entered into. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect [*26] to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *3 (citations omitted). Ms. Squires does not challenge BOEC’s ability to prove that the service provided here is a recreational service, not an essential service, and thus there is no unfair bargaining advantage. Where the releasor fails to point to any other unfair circumstances surrounding the exculpatory agreement, the third factor is satisfied. See Mincin, 308 F.3d at 1111. As in Chadwick, Mrs. Squires signed the Release at home in Kansas, in advance of the ski trip. 100 P.3d at 469. Mrs. Squires signed the Release voluntarily. There is no suggestion that Mrs. Squires is not competent. It is clear that Mrs. Squires is a devoted parent who has zealously tried to enhance her daughter’s quality of life. There is no evidence that the services provided by BOEC could not have been obtained elsewhere. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 3 (“in assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere”) (citing Jones, 623 P.2d at 375). Mrs. Squires is experienced and familiar with liability releases [*27] in general. Ms. Squires has not demonstrated any other unfair circumstances surrounding the execution of the Release.

Finally, the court finds that the Release does not violate public policy. The adaptive recreational ski services provided by BOEC are recreational and not a matter of great public importance or practical necessity. The evidence does not indicate that the Release was entered into in any unfair manner. The Release does not exculpate BOEC from any duty in violation of public policy. The Release does not undermine any competing public policy. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *4. The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.” Colo. Rev. Stat. § 13-22-107(1)(a)(VI).

In sum, as the court finds no obvious disparity in bargaining power between the parties to the Release, that the parties’ intentions are clear and unambiguous, that the agreement was fairly entered into, and that the Release does not violate [*28] public policy, the court concludes that the Release is valid. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *6 (Colo. App. Mar. 31, 2011) (determining exculpatory agreement was valid because it “did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims”); Chadwick, 100 P.3d at 469-70 (enforcing exculpatory agreement releasing organizer of hunting trip from injuries sustained when he was thrown off mule, where exculpatory agreement unambiguously expressed the intent of the parties, was not unfairly entered into, injured party read agreement and understood he was executing a release of liability when he signed it, and agreement violated no duty to the public). Ms. Squires has released “BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action” from any claims resulting from negligence in conjunction with a BOEC activity.

C. Material Misrepresentation and Fraud in the Inducement

Ms. Squires argues that BOEC’s Motion for Summary Judgment must be denied because the Release is voidable based on material misrepresentation and fraud in [*29] the inducement. “A release is an agreement to which the general contract rules of interpretation and construction apply.” Chase v. Dow Chemical Company, 875 F.2d 278 (10th Cir. 1989) (citations omitted). “Like any contract, a release procured through fraud can be set aside.” Id.

Ms. Squires argues that BOEC fraudulently misrepresented in the Greetings Letter, on the reverse side of the Release, that all of its “activities are conducted in a manner consistent with the highest standards, as defined by the Association of Experiential Education (“AEE”),” when in fact there were no written standards for the adaptive ski program, and that the program was accredited by AEE when in fact the program was not so accredited. (See Doc. # 61-1 at 4 of 5). There is no statement regarding AEE standards or accreditation in the Release itself. (See Doc. # 52-1). BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. (See Doc. # 84-6 at 2 of 2). BOEC’s Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive [*30] ski program that Ms. Squires attended. (See Deposition of Jeffrey Inouye (Doc. # 84-2) at 2 of 2). Ms. Squires argues that based on the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.” (Reply Memorandum Brief Regarding Misrepresentation (Doc. # 84) at 4 of 11). Ms. Squires argues that Mrs. Squires relied on these claimed misrepresentation when she signed the Release on January 13, 2008.

In addition to its adaptive ski program, BOEC has a department that operates its wilderness program, which facilitates year-around programming for people with disabilities and special needs. (See Doc. # 89-3 at 3 of 3). The Greetings Letter is sent to participants involved in a wilderness course, who may or may not participate in the ski program. (See Doc. # 89-1 at 2-5 of 5). Groups interested in a wilderness course, which includes lodging and activities other than skiing, such as a ropes course, and climbing wall, will complete paperwork through the wilderness program. Id. Each program has its own separate [*31] set of forms to be completed by participants. Id. Groups who are interested only in skiing at BOEC will complete paperwork for the ski program. (See Doc. # 89-1 at 2-5 of 5). Ms. Squires was a student of BOEC as a participant of the Camp Fire USA group (“Camp Fire”). (See Doc. # 61-1 at 1-2 of 5). For its trip to Colorado, Camp Fire contracted with the wilderness program for a five-day wilderness course that included transportation and lodging in addition to skiing. (See Wilderness Course Contract (Doc. # 89-2) at 1-2 of 2). The Release and Greetings Letter were from the wilderness program. (See Doc. # 89-1 at 3 of 5).

While BOEC’s adaptive ski program did not have its own written ski lesson policies and procedures at the time of the Accident, it has at all times trained its instructors and followed the standards for adaptive skiing set forth by the PSIA, the governing body that establishes national standards for skiing. (See Doc. # 89-3 at 2 of 3). BOEC’s adaptive ski program used the PSIA Core Concepts book, the Adaptive Ski Program Manual, and the Alpine Technical Manual. (See id.; see also Doc. # 84-5).

“To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation [*32] of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.” Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010) (citing CJI-Civ. 4th 19:1 (1998)). See also J.A. Walker Co., Inc. v. Cambria Corp., 159 P.3d 126, 132 (Colo. 2007) (applying same elements to a fraudulent inducement claim). “Implicit within these elements are the requirements that the claimant demonstrate that it relied on the misrepresentation and that its reliance was justified under the circumstances.” Loveland Essential Group, LLC v. Grommon Farms, Inc., 251 P.3d 1109, 1116 (Colo. App. 2010) (citation omitted).

“The misrepresentation must be made with the intent to deceive and for the purpose of inducing the other party to act on it, and there must be evidence that the other party did in fact rely on it and was induced thereby to act to his injury or damage.” Club Valencia Homeowners Ass’n v. Valencia Assocs., 712 P.2d 1024, 1026-27 (Colo. App. 1985) [*33] (citation omitted). Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.

Reasonable and justifiable reliance is also required for a claim of fraudulent misrepresentation. Ivar v. Elk River Partners, LLC, 705 F. Supp. 2d 1220, 1238 (D. Colo. 2010). See also Sheffield Services Co. v. Trowbridge, 211 P.3d 714, 725 (Colo. App. 2009) (“a necessary element to all fraud actions is that the plaintiff justifiably relied on the misrepresentation or the nondisclosure”); Williams v. Boyle, 72 P.3d 392, 399 (Colo. App. 2003) (element of fraudulent misrepresentation is “the right or justification in relying on the misrepresentation”).

The evidence fails to demonstrate justifiable reliance by Mrs. Squires on the statements regarding AEE standards and accreditation in the Greetings Letter. The Greetings Letter emphasized the importance of reading and signing the Release on the reverse side. (See Doc. # 84-1 at 1 of 1). The Release explains that skiing involves a risk of serious [*34] bodily injury and that it is impossible to eliminate all risk. (See Doc. # 52-1). Despite the emphasis on the importance of reading and signing the Release, Mrs. Squires did not take particular note of the language in the Release. “I can only say I assume I read it. I have no recollection of reading it before I signed it.” (See Doc. # 84-4 at 6 of 7). Ms. Squires propounds that Mrs. Squires paid close attention to the Greetings Letter but did not place any importance on the Release itself, which contained the exculpatory provisions. (See id. (the Release contained “the same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberly’s behalf for everything that she has ever participated in. So I did not put any more credence towards this particular document than I did anything else.”)). Mrs. Squires had substantial knowledge about the ski trip, learned from Camp Fire’s past experiences, communications with Ms. Breier, and BOEC’s written materials. (See Doc. # 84-4 at 2-7 of 7). The evidence does not support a finding that Mrs. Squires justifiably relied on the information in the Greetings Letter regarding the AEE while taking no [*35] notice of the exculpatory language in the Release she signed. The evidence shows that Mrs. Squires did not make the decision for Ms. Squires to participate in the ski trip in reliance on the alleged misrepresentations. The court concludes that Ms. Squires has not created a genuine issue of fact for trial on the element of justifiable reliance on the Greetings Letter. For this reason also, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.

D. Willful and Wanton Conduct

The parties acknowledge that the Release cannot bar civil liability for gross negligence. See Colo. Rev. Stat. § 13-22-107(4) (“Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.”); Chadwick, 100 P.3d at 467 (“In no event will an exculpatory agreement be permitted to shield against a claim of willful and wanton negligence.”).

“Although the issue of whether a defendant’s conduct is purposeful or reckless is ordinarily a question [*36] of fact, if the record is devoid of sufficient evidence to raise a factual issue, then the question may be resolved by the court as a matter of law.” Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). See also Terror Mining Co. v. Roter, 866 P.2d 929, 935 (Colo. 1994) (summary judgment proper even when willful and wanton conduct alleged, where facts are undisputed and do not establish or imply willful conduct); United States Fire Insurance Co. v. Sonitrol Management Corp., 192 P.3d 543 (Colo. App. 2008) (“Ordinarily, determining whether a defendant’s conduct is willful and wanton is a question of fact.”) (citation omitted).

“Gross negligence is willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *9 (citing Forman, 944 P.2d at 564. “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” Forman, 944 P.2d at 564. See also Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007) (“Conduct is willful and wanton if it is a dangerous course of action that is consciously [*37] chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”) (internal quotation marks and citation omitted); United Blood Servs. v. Quintana, 827 P.2d 509, 523 n. 10 (Colo. 1992) (“Willful misconduct consists of conduct purposely committed under circumstances where the actor realizes that the conduct is dangerous but nonetheless engages in the conduct without regard to the safety of others.”) (citation omitted); Safehouse Progressive Alliance for Nonviolence, Inc. v. Qwest Corporation, 174 P.3d 821, 830 (Colo. App. 2007) (“Willful and wanton behavior is defined as a mental state of the actor consonant with purpose, intent, and voluntary choice.”) (internal quotation marks and citation omitted).

Based on her expert witness, Mr. Gale’s, opinion, Ms. Squires argues that BOEC acted recklessly, precluding application of the Release. Mr. Gale, a snow sports safety consultant with 43 years of ski safety training and experience, concludes that BOEC acted recklessly based on: (1) “an inherently unsafe bi-ski program administered and conducted by BOEC,” (2) BOEC instructor Jennifer Phillips’ selection of inappropriately difficult [*38] terrain and failure to follow proper lesson plan procedures, and (3) BOEC volunteer Jim Trisler’s failure to “do his job as a blocker, look-out . . . .” (See Doc. # 56-4 at 9-11 of 11; Doc. # 56-5 at 1-2 of 8; Doc. # 88-8 (Curriculum Vitae)).

In his Expert Report, Mr. Gale concludes:

The incident was the cumulative result of an inherently unsafe bi-ski program administered and conducted by BOEC. It knew or should have known that its “word of mouth” rather than written safety protocols and procedures were ineffective and substantially enhanced the risk over and above the inherent risks of skiing to Miss Squires. It purposely chose a dangerous course of training, supervision, and bi-ski program implementation. In doing do it created a strong probability that this circumstance was [a] predictable incident that was bound to happen sooner or later. It failed to address fundamental safety procedures even though it appears to do so in its other adaptive program offerings. . . This further demonstrates BOEC’s willful, reckless, and comprehensive disregard for Miss Squire’s safety.

(Doc. # 56-5 at 1 of 8, ¶ 5.2). Mr. Gale also concludes that the conduct of BOEC’s instructor, Ms. Phillips, was [*39] intentional, willful, and reckless.

The conduct of BOEC’s instructor Jennifer Phillips fell well below the PSIA standards. As a PSIA certified instructor, she was or should be well aware of the policies, procedures, and standards for bi-ski instruction particularly terrain selection. The plethora of written PSIA instructional methodology and information addresses skill based instructional activities with safety as a fundamental priority and duty. She intentionally made the decision to abandon the PSIA lesson plan and sequential format for bi-ski instruction. This conduct demonstrates intentional, willful, and reckless disregard for Miss Squire[s’] safety.

(Doc. # 56-5 at 1 of 8, ¶ 5.3). Mr. Gale further identifies reckless conduct with regard to the use of slip knots to ensure that the bi-ski would remain tethered to the BOEC instructor. He concludes that:

Defendant BOEC was or should have been fully aware of the dangers of a detached bi-ski caused by the reckless choice not to properly utilize or dangerously utilize BOEC’s own slip knot rule powerfully hitting some object, person, or a tree. The safety procedures, training, and program risk management did not match the risk nor fully [*40] address the safety requirements dealing with a detached and out of control bi-ski loose on the slope. The foreseeable consequence was a serious injury to the student, the public, or both. The entities recklessly disregarded Miss Squires[‘] safety and willfully created this higher than normal risk for Miss Squires. There were no prudent or careful precautions taken to reduce or lessen the risk of this predictable and foreseeable incident.

(Doc. # 56-5 at 2 of 8, ¶ 5.5).

Mr. Bil Hawkins of Knott Laboratories also provided an expert report. (See Doc. # 56-2). Mr. Hawkins has a B.S. in civil engineering and is a certified Level II Rope Access Technician. (See Doc. # 88-5). Mr. Hawkins examined the safety knot, or slip knot, used to fasten the bi-ski’s tether to BOEC instructor Ms. Phillips. This knot was the only mechanism that prevented the downhill movement of the bi-ski. Mr. Hawkins concludes in his expert report:

Based upon Knott Laboratory’s inspection, the available evidence, and this engineer’s education, training, and experience, the following conclusions have been reached within a reasonable degree of engineering certainty:

o Ms. Phillips was not certified to [i]nstruct students on [*41] a bi-ski device at the time of Ms. Squires[‘] accident on February 13, 2010

o BOEC knew or should have known that Ms. Phillips was not certified to instruct participants on a bi-ski device at the time of Ms. Squires[‘] accident on February 13, 2010

o Ms. Phillips did not follow BOEC’s written policy by providing two independent means of anchor when providing sole support to a participant on a rope device

o The safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly

(Doc. # 56-2 at 11 of 11).

There is thus some evidence in the record that it may have been reckless for Ms. Phillips to take Ms. Squires on Cashier, a blue run, on the day of the Accident. Ms. Squires was a blind, first-time skier strapped to a bi-ski with no means to control her own speed or direction. It was BOEC policy to start such a student on a green run. (See Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2). But see Deposition of Stanley Gale (Doc. # 90-5) at 2 of 2 (“Q: Are you saying — are you saying that it’s wrong to have an adaptive bi-skier on Cashier run? A: No.”); Expert Report of Ruth Ann DeMuth (Doc. # 100-5) at 5 of 6 [*42] (BOEC employee Jennifer Phillips “did not compromise the safety of Miss Squires by going up the Beaver Run Lift to Cashier.”).

The court cannot conclusively determine based on the evidence before it whether there was a purposeful or conscious failure to use a slipknot or tie the properly. The use of a slipknot with a bi-ski is the established BOEC policy. (See Deposition of Jennifer L. Phillips (Doc. # 100-3) at 2-3 of 3; Deposition of Paul E. Gamber (Doc. # 100-4) at 4 of 4). Witnesses who were asked agreed that it could be reckless to conduct a bi-ski lesson without a properly-tied slip knot tethering a bi-ski with fixed outriggers. (See Deposition of Jennifer L. Phillips (Doc. # 90-8) at 2 of 2; Deposition of Peter W. Axelson (Doc. # 97-9) at 3 of 3; Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2; (Doc. # 90-7) at 2 of 2; Deposition of Ruth Ann DeMuth (Doc. # 90-6) at 2 of 2; Deposition of Patrick B. Kelley (Doc. # 90-4) at 2 of 3). Mr. Hawkins concludes that “[t]he safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly.” (Doc. # 56-2 at 11 of 11).

This evidence and these conclusions by the [*43] expert witnesses could demonstrate reckless, grossly negligent, and willful and wanton acts and omissions. A jury could conclude there was purposeful conduct committed recklessly with conscious disregard for the rights and safety of Ms. Squires. The evidence, viewed in a light most favorable to Ms. Squires, might lead a reasonable jury to conclude that BOEC was conscious of its conduct and the existing conditions and knew there was a strong probability that injury to Ms. Squires would result. The court concludes that Ms. Squires is properly afforded an opportunity to present to a jury evidence of the alleged willful and wanton, reckless, or grossly negligent acts or omissions. It will best be determined at trial, after the submission of Ms. Squires’ case in chief, whether BOEC acted recklessly.

The court addresses separately Ms. Squires’ argument that BOEC volunteer, Mr. Trisler’s, “acts and omissions” were “more than mere recklessness.” (See Doc. # 56 at 14 of 19). Mr. Gale concludes that

[t]he conduct of BOEC trained Jim Trisler fell below the duty of a blocker. He did absolutely nothing to prevent the collision or intervene prior to the collision between Jennifer Phillips and Michael [*44] Goodwin. He failed in his essential duties which were to prevent the collision, or at the very least, to reduce the severity of the consequences.

(See Doc. # 56-5 at 2 of 8, ¶ 5.4). See also Doc. # 56-4 at 10 of 11 (“he did not do his job as a blocker, look-out, or make his presence known to Michael Goodwin. Apparently, he did not hear or see Michael Goodwin coming down out of control before the powerful impact. He was not vigilant nor did he fulfill his duty and responsibility to protect and warn. It seems that he was not on the look-out as he should have been or he would have likely seen Michael Goodwin skiing too close, out of control, and headed for Jennifer Philips and Miss Squires[‘] bi-ski device.”). Ms. Squires argues that ‘[a]lthough Mr. Gale does not specifically use the word reckless in describing Mr. Trisler’s acts and omissions, his analysis and description describe more than mere recklessness.” (Response (Doc. # 56) at 14 of 19). The court disagrees. Colorado law defines negligence as “a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect [*45] . . . others from bodily injury, . . .” CJI-Civ. 9:6 (2011). The evidence in the record, including Mr. Gale’s opinion, amounts to no more than negligence by Mr. Trisler. As to Mr. Trisler, there is insufficient evidence to create a genuine issue of material fact that he acted willfully and wantonly, that is, that he consciously chose a dangerous course of action with knowledge of facts that, to a reasonable mind, created a strong probability that injury to Ms. Squires would result. The Release thus bars Ms. Squires’ claim based on Mr. Trisler’s conduct.

Accordingly, IT IS ORDERED that:

1. Defendant BOEC’s Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52) is GRANTED IN PART AND DENIED IN PART.

2. The Fifth Claim for Relief in the Second Amended Complaint (Doc. # 13) shall proceed against Defendant Breckenridge Outdoor Education Center only on the alleged willful and wanton, reckless, or grossly negligent acts or omissions.

3. The court will hold a Telephonic Status Conference on Thursday December 8, 2011 at 8:30 a.m. Counsel for the parties shall create a conference call and then telephone the court at 303-844-2117 at the scheduled time.

DATED at Denver, Colorado, this 8th [*46] day of November, 2011.

BY THE COURT:

/s/ Craig B. Shaffer

United States Magistrate Judge

My Letter posted in Bicycle Retailer and Industry News as a Guest Editorial

Posted: February 3, 2012 | Author: Recreation Law | Filed under: Cycling | Tags: Andy Tompkins, bicycle, Bicycle Retailer & Industry News, Business, Consumer Goods and Services, Cycling, Interbike, Las Vegas Nevada, Manufacturing, Nielsen, Retail | Leave a comment

February 1, 2012

Marc Sani

Bicycle Retailer and Industry News

25431 Cabot Road, Suite 204

Laguna Hills, CA 92653

Via Email: msani@bicycleretailer.com

Re: Termination of Andy Tompkins

Dear Marc:

I received the email from Andy Tompkins like many announcing his termination from Nielsen and Interbike. I felt sorry for Andy and more so for the industry. When I read your guest editorial in the January 1, 2012 issue of BRAIN, I had a big smile on my face as well as the tug in my heart.

I understand budgets and the need to create a bottom line that meets with management and shareholder expectations. Andy brought many things to the table that cannot be immediately calculated or identified on a spreadsheet. I suspect he did not survive this long in the industry without meeting the bottom line expectations as well.

Andy stood out among a group of talented people at Nielsen. He had an enviable ability to listen to every compliment, complaint or “suggestion,” no matter how it was delivered and leave the person feeling like their time had not been wasted. In the trade show industry that many are saying is dying, Andy and his team kept Interbike coming back, getting better and growing. The excitement that you feel when you attend a tradeshow when retailers want to find out what is new each year still existed at Interbike even though many other venues had popped up to steal Interbike’ s luster.

Your piece pointed out many of those skills and issues that Andy brought to his job each morning. Your piece also will provide a basis to evaluate and see where the trade show industry, Interbike and Andy are going.

The bike industry needs Interbike. Not for the big manufactures for the name brands but for the retailers who leave the big booths and walk around the walls. The new exhibitors bring the excitement, the ideas and what will eventually be the next big thing to the show. They do not have the opportunity to show their products to a nationwide audience anywhere but Interbike. For those new and upcoming manufactures Interbike is the only opportunity. For retailers, those new manufacturers are the next opportunity.

Andy Tompkins provided that opportunity, big or small, for manufacture or retailer and he will be missed. Your article did a great job of make sure the cycling industry knows it.

Sincerely,

James H. Moss, JD

WordPress Tags: Letter,Bicycle,Retailer,Industry,News,Guest,Editorial,February,Marc,Sani,Cabot,Road,Suite,Laguna,Hills,Email,Termination,Andy,Tompkins,Dear,Nielsen,Interbike,January,BRAIN,management,shareholder,expectations,spreadsheet,complaint,suggestion,person,team,excitement,retailers,venues,luster,skills,basis,bike,booths,products,audience,manufacturers,article,James,Moss

Leitner-Poma will be building the new WiFi enabled Gondola at Vail

Posted: February 2, 2012 | Author: Recreation Law | Filed under: Ski Area | Tags: Colorado, Gondola, Grand Junction, Leitner-Poma, Outdoor recreation, ski area, skiing, Vail, Vail Colorado, Wi-Fi | Leave a comment

Image via Wikipedia

Good job Tom!

Leitner-Poma just announced it got the contract to build the new gondola at the Vail Ski area. See Leitner-Poma to build the state-of-the-art gondola in Vail to read the announcement. See Vail installing new Gondolas for the 50th Anniversary with WiFi for more information about the Gondola and Vail’s decision to put the new lift in.

Heated seats, Kenwood radio and Wi-Fi will be in each gondola cabin. Where else but Vail would this even be considered! “Like nothing on earth” will take on a new meaning.

The gondola will be ready for the 2012-2013 ski season which will also be Vail’s 50^th anniversary.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #Vail, #Leitner-Poma, #Gondola, #lift, Chair Lift, Grand Junction,

WordPress Tags: Leitner,Poma,WiFi,Gondola,Vail,area,announcement,Gondolas,Anniversary,information,decision,Kenwood,radio,cabin,Where,earth,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Chair,Lift,Grand,Junction

Skier/Boarder Fatalities 2011-2012 Ski Season

Posted: February 1, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: California, Ski, Ski Resort, Sports, Winter sport | Leave a comment

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

If this information is incorrect or incomplete please let me know. This is up to date as of January 15, 2012. Thanks.

Date

Resort

State

Run

Run Difficulty

Doing What

Age

Skier Ability

Ski/ Tele /Boarder

Cause of Death

Helmet

Reference

11/18/2011

Vail

Gitalong Road

Beginner

Skier

Yes

http://rec-law.us/rBcn7A

11/18/2011

Breckenridge

Northstar

Intermediate

hitting a tree while snowboarding

Expert

Boarder

suffered massive internal injuries

Yes

http://rec-law.us/rBcn7A

11/27/2011

Mountain High ski resor

Chisolm trail

Beginner

boarding

Beginner

Boarder

internal injuries

Yes

http://rec-law.us/uGuW17

12/18/11

Sugar Bowl

Mt Lincoln Lift

fell off lift

Expert

Skier

http://rec-law.us/viAqCR

1/4/12

Ski Ward

Chair Lift

Fell off lift

Expert

Skier

http://rec-law.us/y3sOtx

1/11/12

Ski Apache

CapitanSlope

Intermediate

fell

http://rec-law.us/zdfQ4k

1/12/12

Sugarloaf

Lower Timber

Beginner

hit tree

Yes

http://rec-law.us/yNHkuc

1/14/12

Silverton

Riff Run

Expert

fell and slid 1500′

Expert

Skier

http://rec-law.us/zcw6MB

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #Vail, #Breckenridge, #Mountain High Ski Resort, #Ski Ward, #Sugarloaf, Silverton, Ski Apache,

WordPress Tags: Skier,Boarder,Fatalities,Season,information,news,January,Thanks,Date,Resort,State,Tele,Cause,Death,Helmet,Reference,Vail,Gitalong,Road,Beginner,Breckenridge,Northstar,Intermediate,tree,Expert,injuries,Mountain,High,Chisolm,Sugar,Bowl,Lincoln,Lift,Ward,Chair,Fell,Apache,CapitanSlope,Sugarloaf,Lower,Timber,Silverton,Riff,Leave,Twitter,Linkedin,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,accidents

New EcoGroomer is going into production

Posted: January 31, 2012 | Author: Recreation Law | Filed under: Ski Area | Tags: Groomer, snow grooming, Snowcat | Leave a comment

Snow groomer claims increase in coverage and a 35% reduction in fuel costs.

The groomer will be built by several different companies and the components will be put together someplace in the Midwest. The Ecogroomer company is based in Denver and expects to deliver the first Ecogroomer in the Rocky Mountains.

Basically the difference is not he groomer by the grooming device. The Ecogroomer has outlying grooming implements on either side of the normal one towed behind the snowcat giving it is greater terrain coverage.

See Ecogroomer goes into production. To see the company website go to Ecogroomer.

What do you think? Leave a comment.

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

WordPress Tags: EcoGroomer,production,coverage,reduction,components,Midwest,Denver,Rocky,Mountains,difference,device,terrain,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Snowcat,groomer

Not a final decision, but I believe an indication of where the law of AED’s is heading however the basis for the decision is nuts!

Posted: January 30, 2012 | Author: Recreation Law | Filed under: Health Club, New York | Tags: AED, Automated external defibrillator, health, Health club, New York | Leave a comment

Miglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478

Calling 911 according to this court is starting a rescue which creates liability for failing to complete the rescue!

This case was appealed and upheld in Miglino, Jr., v Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342; 985 N.E.2d 128; 961 N.Y.S.2d 364; 2013 N.Y. LEXIS 111; 2013 NY Slip Op 780.

There are a lot of motions, trial and appeals to go in this case before you could rely on this decision. However it is indicative of where the law is probably heading. If the statute requires you to have an AED (Automatic External Defibrillator) at your facility, you may be liable if you do not use it.

In this case, the deceased was playing racquet ball when he suffered a heart attack. An employee of the health club where he worked called 911 and went to his side with an AED. The employee left for an unknown reason and came back. When he left the deceased was still breathing. When he came back, a physician was attending the deceased.

At no time did the health club employee use the AED. The family of the deceased sued the health club. The allegations were that since the New York statute (General Business Law § 627-a) mandated the health club have an AED, then it was negligence not to use the AED. Whether or not the AED would have helped has seemed to have escaped the confines of the litigation.

The defendants moved to dismiss for failure to state a claim upon which relief can be granted. This means the allegations in the complaint of the plaintiff do not meet the minimum requirements to state a legal claim under the law and therefore the plaintiff’s case should be dismissed.

The legal basis of the motion was the statute did not require the use of the AED and any use of the AED was protected by the AED Good Samaritan Act, (Public Health Law § 3000-a). The motion of the defendants was denied and the defendants appealed that denial.

So? Summary of the case

First the appellate court looked at the statute requiring health clubs to have AEDs and employees trained in how to use the AED’s.

General Business Law § 627-a: automated external defibrillator requirements:

1. Every health club [with more than 500 members] shall have . . . at least one [AED], and shall have in attendance, at all times during staffed business hours, at least one individual performing employment . . . who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of cardiopulmonary resuscitation provided by a nationally recognized organization or association.

The court also looked at the AED Good Samaritan law.

“3. Pursuant to [Public Health Law §§ 3000-a and 3000-b], any public access defibrillation provider, or any employee . . . of the provider who, in accordance with . . . this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant to [Public Health Law § 3000-a].

The court stated the purpose of the statute was to save lives and therefore the health clubs were required to use the AEDs. “Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?”

A basic axiom in US law has always been there is no duty to rescue unless you placed the victim in the peril from which he needs rescued. By that, you can come across someone who is in need of help and you have no legal obligation to help.

Once you start to help though, you cannot leave the victim at that point. Once you start first aid, you cannot abandon the victim unless higher medical care arrives on the scene.

The court found the health club employee had started to rescue the deceased when he “directed that a 911 emergency call be made, sought medical assistance within the club, and took the decedent’s pulse.”

All three of the things the employee did were marginally, if at all, a rescue or first aid. If directing someone to call 911 constitutes starting a rescue, don’t expect me to pick up the phone if you are dying or tell someone else to call.

The court continues this stretch into the wild blue yonder with this statement. Since the health club employee was trained in the use of the AED, “his failure to use the device was tantamount to not acting carefully.”

Negligence can be proved for acting or in some cases for failing to act. However the failure to act had to have been predicated upon a duty to act that was more than speculation or hypothetical. Here the court has taken the fact that training now requires you to act on that training or you are liable. How far will this court go to hold someone liable for the bad luck in dying one day?

· I am trained to provide first aid, yet I do not have the proper equipment, am I now liable when I cannot help the person so I do not help the person?

· You are bleeding but I have no gloves or blood borne pathogen protection, even though I’ve been trained to stop your bleeding. Am I now liable for placing my family’s and my health above that of a stranger?

· You are dying in the middle of a gun fight. I am safe and you are still surrounding by bullets, am I liable for not running out in the street to safe you when my training might assist you? Am I now required to risk my life because I have the training to save yours?

This seems like a stretch; however I don’t see these examples as any greater stretches than where the court has gone in this case.

The court found that because this was a preliminary motion that there may be enough information to keep the plaintiff’s claims alive, not matter how far this court had to stretch to do so.

So Now What?

The only thing this court has done for sure is scare people away from calling 911 when they see someone in trouble. Look at the liability of an elderly person with no physical ability and no training being held liable for the injuries of someone when all they did was call 911. They have no other skill set to assist someone in need, yet according to this court, calling 911 is the same as performing first aid.

My analysis, the standard of care on having and using AED’s is changing to one of if you have it by statute you must use it by law. First there are several issues that have not been discussed in this case that would eliminate any liability of the defendants.

1. A physician is the senior medical person on the scene it is probably illegal for the health club employee to perform any medical care while the physician is in attendance.

2. Would the AED have done anything?

3. Is taking a pulse or calling for help rescue?

4. If there was a pulse, does that not eliminate the need for the AED?

If this case continues on its present track, I think if you live in New York there are a few things you need to do.

1. Go back to the legislature to define performing medical assistance to not include calling 911 or directing someone to call 911.

2. Go back to the NY legislature and include in the Good Samaritan act that directing someone to get help does not create liability on your part from an injured third party.

And probably put an AED in your business, learn how to use it and use it.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #AED, #NY, New York Automatic External Defibrillator, Health Club, #Club, #Gym, Duty to Rescue, Duty to Perform Medical Care, First Aid,

WordPress Tags: decision,indication,basis,Miglino,Total,Greater,York,Slip,LEXIS,statute,Automatic,External,Defibrillator,racquet,ball,employee,health,physician,allegations,General,negligence,Whether,litigation,defendants,failure,relief,complaint,plaintiff,requirements,Samaritan,Public,denial,Summary,AEDs,employees,attendance,hours,employment,certification,completion,resuscitation,association,Pursuant,provider,accordance,expectation,compensation,treatment,person,purpose,device,requirement,axiom,victim,peril,obligation,Once,assistance,statement,speculation,Here,fact,luck,equipment,blood,protection,bullets,street,life,examples,information,Look,injuries,skill,analysis,legislature,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Club,Rescue,Perform,Medical,Care,upon

Miglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478

Posted: January 30, 2012 | Author: Recreation Law | Filed under: Health Club, Legal Case, New York | Tags: AED, Bally Total Fitness, New York, New York City, Supreme Court | 1 Comment

Miglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478

[*1] Gregory C. Miglino, Jr., etc., respondent, v Bally Total Fitness of Greater New York, Inc., et al., appellants. (Index No. 7729/08)

2010-06556

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478

December 27, 2011, Decided

NOTICE:

COUNSEL: [**1] Morrison Mahoney, LLP, New York, N.Y. (Demi Sophocleous of counsel), for appellants.

Scott E. Charnas (John V. Decolator, Garden City, N.Y., of counsel), for respondent.

JUDGES: PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ. SKELOS, J.P., LEVENTHAL and AUSTIN, JJ., concur.

OPINION

APPEAL by the defendants, in an action, inter alia, to recover damages for negligence, from an order of the Supreme Court (Jeffrey Arlen Spinner, J.), dated June 9, 2010, and entered in Suffolk County, which denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

OPINION & ORDER

SGROI, J.On this appeal we consider whether General Business Law § 627-a, which mandates that certain health clubs in the State of New York provide an automated external defibrillator device, as well as a person trained in its use, also imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence for failure to use the device. We conclude that such a cause of action is cognizable. We also conclude that the plaintiff stated a cause of action to recover damages for common-law negligence against the [**2] defendant Bally Total Fitness of Greater New York, Inc. (hereinafter Bally).

At around 7:00 A.M. on March 26, 2007, Gregory Miglino, Sr. (hereinafter the decedent), was playing racquetball at a club located in Lake Grove (hereinafter the gym), owned and operated by Bally, when he suddenly collapsed. According to an affidavit submitted by Kenneth LeGrega, a Bally employee working at the gym that morning, “a gym member informed the front desk” that the decedent had collapsed and a 911 emergency call was then immediately placed. According to the affidavit, LaGrega was a personal trainer who had also completed a course in the operation of automated external defibrillator (hereinafter AED) devices, and had obtained a certification of completion of a course in the training of cardiopulmonary resuscitation provided by the American Heart Association. LaGrega’s affidavit further stated:

“I ran to assess the situation [and] [w]hen I arrived at the scene, I observed the decedent lying on his back with his eyes open, breathing heavily and with normal color. I checked for and found a faint pulse at that time. When I later returned to the scene, [another employee] was on the scene and had brought [**3] the club’s AED to the decedent’s side. Additionally, a medical doctor and medical student were attending to the decedent.”

[*2]

The report of the ambulance crew that responded to the 911 call stated, inter alia, that the emergency call was received at 6:59 A.M., the emergency medical services crew arrived at the gym at 7:07 A.M., and the ambulance arrived at Stony Brook Hospital at 7:45 A.M. The report further indicated that the decedent was “unconscious and unresponsive . . . on arrival [and] fine V-fib shocked.” The decedent could not be revived and he was pronounced dead after arriving at the hospital.

In early 2008 the plaintiff, Gregory C. Miglino, Jr., as executor of the decedent’s estate, commenced an action against Bally and Bally Total Fitness Corporation seeking, inter alia, to recover damages for negligence. The complaint alleged two causes of action, one against each defendant. Each cause of action sounded in negligence and was based upon the defendants’ failure to use an AED on the decedent. The complaint alleged, in part, as follows:

“[On the date of the incident Bally] was required by New York State statute to have in attendance at all times during business hours, at least one [**4] employee . . .who held a valid certification of completion of a course in the study of the operation of AED’s and a valid certification of completion of a course in the study of cardiopulmonary resuscitation provided by a nationally recognized organization . . . [Bally] negligently failed to use the AED on plaintiff’s decedent and/or failed to use said AED within sufficient time to save his life, and was otherwise negligent in regard to its failure to employ or properly employ life-saving measures regarding plaintiff’s decedent.”

Before any discovery had taken place, the defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The defendants argued that the branch of the motion which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation should be granted because it had no ownership or management interest in the gym. The defendants further argued that the branch of the motion which was to dismiss the complaint insofar as asserted against Bally should be granted because it was “immune from liability arising out of the lack of success of emergency response efforts by virtue of . . . Public Health Law § 3000-a [**5] [which provides] that a person who voluntarily renders emergency treatment outside of a hospital or other location is not liable for injuries to or death of the person receiving the emergency treatment.” The defendants further argued that Bally’s employees had no affirmative duty to use the available AED upon the decedent after he collapsed.

In opposition, the plaintiff argued, inter alia, that the gym was required, by statute, to have an AED on its premises, and a person trained to use such device, and that Bally could not rely upon the Good Samaritan statutes (General Business Law § 627-a[3]; Public Health Law § 3000-a) to insulate itself from liability. The plaintiff did not oppose that branch of the motion which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation, and conceded that “[said] entity apparently does not own, operate or manage the [gym].”

The Supreme Court denied the defendants’ motion, stating simply that “the pleadings maintain causes of action cognizable at law.” This appeal by the defendants ensued.

We begin our analysis with a summary of the statutes relevant to the issues raised herein.

“General Business Law § 627-a: automated [**6] external defibrillator requirements:

“1. Every health club [with more than 500 members] shall have . . . at least one [AED], and shall have in attendance, at all times during staffed business hours, at least one individual performing employment . . . who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of cardiopulmonary resuscitation provided by a nationally recognized organization or association.

[*3]

“2. Health clubs and staff[s] pursuant to subdivision one of this section shall be deemed a public access defibrillation provider’ as defined in [Public Health Law § 3000-b[1]] and shall be subject to the requirements and limitation[s] of such section.

“Public Health Law § 3000-a: Emergency medical treatment:

“1. [A]ny person who voluntarily and without expectation of monetary compensation, renders first aid or emergency treatment . . . outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill or injured, shall not be liable for damages . . . for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries [or death] was caused by gross negligence on the part of such person.

“2. (i) An [entity that makes available an AED as required by law], or (ii) an emergency health care provider under a collaborative agreement pursuant to [Public Health Law § 3000-b] with respect to an AED . . . shall not be liable for damages arising either from the use of that equipment by a person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of . . . a medical emergency or . . .; provided that this subdivision shall not limit the person’s or entity’s . . . or emergency [**8] health care provider’s liability for his, her or its own negligence, gross negligence or intentional misconduct.

“Public Health Law § 3000-b: Automated external defibrillators

“1. Definitions . . . (b) Emergency health care provider’ means (i) a physician . . . or (ii) a hospital . . . (c) Public access defibrillation provider’ means a person . . . or other entity possessing or operating an [AED] pursuant to a collaborative agreement under this section.

“2. Collaborative agreement. A person . . . or other entity may purchase, acquire, possess and operate an [AED] pursuant to a collaborative agreement with an emergency health care provider. The collaborative agreement shall include a written agreement and written practice protocols, and policies and procedures that shall assure compliance with this section. The public access defibrillation provider shall file a copy of the collaborative agreement with the department and with the appropriate regional council prior to operating the [AED].

“3. Possession and operation of [AED] No person may operate an [AED without proper training]. However, this section shall not [*4] prohibit operation of an [AED] by a person who operates the [AED] other than [**9] as part of or incidental to his employment or regular duties, who is acting in good faith, with reasonable care, and without expectation of monetary compensation, to provide first aid that includes operation of an [AED]; nor shall this section limit any good samaritan protections provided in section [3000-a] of this article.”

This Court has not previously interpreted any of these statutes under circumstances such as those presented by this case. The only other Appellate Division case which has addressed similar factual circumstances is Digiulio v Gran, Inc. (74 AD3d 450, affd 17 NY3d 765), wherein the plaintiff’s decedent suffered an apparent heart attack while exercising at a health club facility. In the Digiulio case, the plaintiff commenced an action against the health club owner and then moved for partial summary judgment on the issue of liability based on common-law negligence, or pursuant to a theory of negligence per se based upon an alleged violation of General Business Law § 627-a. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the plaintiff’s motion and granted the defendants’ motion. On appeal, the [**10] Appellate Division, First Department, affirmed, stating, in part:

“We agree with the motion court that plaintiff has not established a common-law negligence claim . . . After the heart attack, the club’s employees more than fulfilled their duty of care by immediately calling 911 and performing CPR, had no common-law duty to use the AED, and could not be held liable for not using it . . . Turning to the statutory claim, we reject plaintiff’s argument that [GBL] § 627-a implicitly obligated the club to use its AED to treat [the decedent]. While the statute explicitly requires health clubs to have AEDs and people trained to operate them on their premises, it is silent as to the club’s duty, if any, to use the devices” (Digiulio v Gran, Inc., 74 AD3d at 453).

While the Digiulio case involved a motion for summary judgment, the First Department’s reasoning suggests that there is no viable cause of action against a health club based upon the failure to use an available AED.

Thereafter, the plaintiff in Diguilio was granted leave to appeal to the Court of Appeals. In a decision dated June 14, 2011, the Court decided as follows:

“Assuming arguendo that General Business Law § 627-a implicitly created [**11] a duty for defendants to use the [AED] the section required them to provide at their facility, plaintiff cannot recover because she failed to raise a triable issue of fact demonstrating that defendants’ or their employees’ failure to access the AED was grossly negligent (see General Business Law § 627-a[3]; Public Health Law § 3000-a). Defendants did not breach any common-law duty to render aid to the decedent” (DiGiulio v Gran, Inc., 17 NY3d 765, 767).

The Court of Appeals left open the question of whether General Business Law § 627-a creates a duty upon a health club to use the AED which it is required to provide. We conclude that there is such a duty.

The risk of heart attacks following strenuous exercise is well recognized, and it has also been documented that the use of AED devices in such instances can be particularly effective if defibrillation is administered in the first few minutes after the cardiac episode commences (see e.g. Balady, Chaitman, Foster, Froelicher, Gordon & Van Camp, Automated External Defibrillators in Health/Fitness Facilities, Circulation Journal of the American Heart Association 2002, available at http://circ.ahajournals.org/content/105/9/1147 full; Senate [**12] Introducer Mem in Support, Bill jacket, L 1998, ch 552, at 4 [“Sudden cardiac arrest is a major unresolved health problem. Each year, it strikes more than 350,000 Americans–nearly 1,000 per day. More than 95% of these people die because life-saving defibrillators arrive on the scene too late, if at all. The American Heart Association estimates that close to 100,000 deaths nationwide could be prevented each year if automated external defibrillators . . . were more widely distributed.”]). It is also clear that the [*5] Legislative intent behind General Business Law § 627-a was to make AED devices readily available for use in gyms. Indeed, the 2004 Legislative Memorandum in support of General Business Law § 627-a states the following as “[j]ustification” for the statute:

“This [bill] would ensure a higher level of safety for thousands of individuals who belong to health clubs. According to the American Heart Association, 250,000 Americans die every year due to sudden cardiac arrest. A quarter of these deaths could be avoided if an [AED] is on hand for immediate use at the time of emergency . . . Because health clubs are places where individuals raise their heart rates through physical exercise, [**13] the chance of cardiac arrest increases. Having an AED on hand could save lives” (NY Assembly Mem in Support, Bill Jacket, L 2004, ch 186, at 4).

Accordingly, the laudatory purpose of the statute was to increase the number of lives that could be saved through the use of available AED devices at health club facilities. Although the statute does not contain any provision that specifically imposes an affirmative duty upon the facility to make use of its required AEDs, it also does not contain any provision stating that there is no duty to act (cf. Public Health Law § 1352-b, which provides for the mandatory posting in public eating establishments of instructions to aid in choking emergencies, but also contains a provision entitled “no duty to act”). Moreover, it is illogical to conclude that no such duty exists. We are aware that ” legislative enactments in derogation of [the] common law, and especially those creating liability where none previously existed,’ must be strictly construed” (Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521, quoting Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200, 206; see McKinney’s Cons Laws of NY, Book 1, Statutes § 301[c]). Nevertheless, [**14] such strict construction should not be utilized to eviscerate the very purpose for which the legislation was enacted. “A court should avoid a statutory interpretation rendering the provision meaningless or defeating its apparent purpose” (State of New York v Cities Serv. Co., 180 AD2d 940, 942; see Matter of Industrial Commr. of State of N.Y. v Five Corners Tavern, 47 NY2d 639, 646-647; see also Zappone v Home Ins. Co., 55 NY2d 131, 137; McKinney’s Cons Laws of NY, Book 1, Statutes § 145). “It is the spirit, the object, and purpose of the statute which are to be regarded in its interpretation” (Westchester County Socy. for Prevention of Cruelty to Animals v Mengel, 266 App Div 151, 154-155, affd 292 NY 121).

Applying these principles, and inasmuch as there is no dispute that General Business Law § 627-a requires certain health club facilities to provide an AED on the premises, as well as a person trained to use such device, it is anomalous to conclude that there is no duty to use the device should the need arise. Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it? This conclusion is further buttressed [**15] by the fact that the Legislature deemed it appropriate to partially immunize the health clubs from liability, which may arise from their use of the AED, by including language within General Business Law § 627-a that referenced the “Good Samaritan” provisions of the Public Health Law (see General Business Law § 627-a [3]; Public Health Law § 3000-a). Such “protection” could be considered superfluous if the statute did not also impose a duty upon the health clubs to use, or attempt to make use of, the device, depending upon the circumstances of the particular medical emergency. In addition, pursuant to General Business Law § 627-a, as defined by Public Health Law § 3000-b(1)(b), (c), and § 3000-b(2), the gym was a “public access defibrillation provider” and, thus, was required to have in place a “collaborative agreement” with an emergency health care provider (i.e., cardiac emergency doctor or hospital providing emergency care) (Public Health Law §§ 3000-a, 3000-b). Again, the requirement of such an agreement could be viewed as unnecessary if there were no obligation upon the health club facility to attempt to use the AED if the circumstances warranted such use.

In the case at bar, it [**16] is undisputed that, at the time the decedent collapsed, the gym had an available AED on its premises and there was an employee present who had been trained in the use of the device. Indeed, it was this individual, LaGrega, who initially responded to the decedent. LaGrega also stated in his affidavit that “the club’s AED [had been brought] to the decedent’s side.” However, for reasons that are not entirely clear, the gym’s AED device was never used on the decedent. LaGrega’s affidavit suggests that he perhaps deferred to the medical doctor who responded to the internal announcement which had been made in the gym, seeking the [*6] assistance of anyone with medical training. Hence, it may be that the doctor decided that the AED was contraindicated. However, based upon the record before us, such a conclusion would amount to mere speculation.

In any event, unlike the procedural posture of Digiulio v Gran, Inc. (74 AD3d 450), which involved motions for summary judgment, the defendants herein seek dismissal for failure to state a cause of action pursuant to CPLR 3211(a)(7). In determining a motion for failure to state a cause of action, the court must “accept the facts as alleged in the complaint [**17] as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825). “Whether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus in determining a motion to dismiss [made pursuant to CPLR 3211(a)(7)]” (ECBI, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110). Accordingly, in light of the facts as alleged by the plaintiff, coupled with our conclusion that General Business Law § 627-a imposes an inherent duty to make use of the statutorily required AED, we conclude that the complaint states a cognizable cause of action to recover damages based upon Bally’s failure to use its AED upon the decedent.

To the extent that the defendants argue that the complaint should have been dismissed insofar as asserted against Bally because it is immune from liability under the Good Samaritan provisions of General Business Law § 627-a, that argument is misplaced. The issue at bar is not whether Bally was negligent in the course of its use of the AED. [**18] Instead, as set forth in the beginning of this opinion, our focus is whether General Business Law § 627-a gives rise to a statutory cause of action sounding in negligence based upon the failure to use the device. While General Business Law § 627-a does incorporate the provision of the Good Samaritan law requiring a showing of gross negligence when the statutorily required AED is used, where, as here, the cause of action is based on the failure to employ the device, as opposed to the manner in which it was employed, the gross negligence standard is not applicable.

In addition, the defendants were not entitled to dismissal of the complaint insofar as asserted against Bally for failure to state a cause of action based solely upon common-law negligence. It is settled that a duty of reasonable care owed by a tortfeasor to a plaintiff is elemental to any recovery in negligence (see Pulka v Edelman, 40 NY2d 781, 782; Palsgraf v Long Is. R.R. Co., 248 NY 339, 344). To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty of care owed to the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see [**19] Pulka v Edelman, 40 NY2d 781; Gordon v Muchnick, 180 AD2d 715; see also Akins v Glens Falls City School Dist., 53 NY2d 325,333). Absent a duty of care, there is no breach, and without a breach, there can be no liability (see Pulka v Edelman, 40 NY2d 781; Gordon v Muchnick, 180 AD2d 715). In addition, foreseeability of an injury does not determine the existence of duty (see Strauss v Belle Realty Co., 65 NY2d 399, 402; Pulka v Edelman, 40 NY2d 781). However, “[u]nlike foreseeability and causation, both generally factual issues to be resolved on a case-by-case basis by the fact finder, the duty owed by one member of society to another is a legal issue for the courts” (Eiseman v State of New York, 70 NY2d 175, 187, citing De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055).

Therefore, the question is whether Bally owed any duty to the decedent. Generally speaking, one does not owe a duty to come to the aid of a person in peril, whether the peril is medical or otherwise (see McDaniel v Keck, 53 AD3d 869, 872; Walsh v Town of Cheektowaga, 237 AD2d 947; see also Plutner v Silver Assoc., Inc, 186 Misc 1025; Chappill v Bally Total Fitness Corp., 2011 NY Slip Op 30146[U]). However, ” one [**20] who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully'” (Mirza v Metropolitan Life Ins. Co., 2 AD3d 808, 809, quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522).

In the case at bar, LaGrega assumed a duty by coming to the decedent’s assistance. By his own admission, LaGrega directed that a 911 emergency call be made, sought medical assistance within the club, and took the decedent’s pulse. However, he did not make use of the available AED, even though the device had been brought to the decedent’s side. It could be argued that since LaGrega was trained in the use of the AED, his failure to use the device was tantamount to not acting carefully. On the other hand, it may ultimately be proven that LaGrega acted reasonably under the circumstances, and that no liability can attach to the defendants for the decedent’s death. These are questions which cannot be resolved at this procedural juncture. Moreover, as noted in our above discussion regarding the statutory duty under General Business Law § 627-a, the issue of [*7] whether the plaintiff can ultimately prove his factual allegations also does not figure into the determination [**21] of whether the common-law negligence claim should be dismissed for failure to state a cause of action. Accordingly, we conclude that the separate cause of action based upon common-law negligence was not subject to dismissal for failure to state a cause of action (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83). Therefore, the Supreme Court properly denied that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint for failure to state a cause of action insofar as asserted against Bally.

As indicated, the plaintiff did not oppose that branch of the motion which was to dismiss the complaint insofar as asserted against the defendant Bally Total Fitness Corporation and, in fact, conceded that “[said] entity apparently does not own, operate or manage the subject health club.” Moreover, even on appeal, the plaintiff does not dispute the contention by Bally Total Fitness Corporation that it was entitled to dismissal of the complaint insofar as asserted against it. Accordingly, that branch of the motion which was to dismiss the complaint insofar as asserted against that defendant should have been granted.

The order is modified, on the law and the facts, [**22] by deleting the provision thereof denying that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed.

SKELOS, J.P., LEVENTHAL and AUSTIN, JJ., concur.

ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof denying that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against Bally Total Fitness Corporation, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

Skier claims resort liable for boundary rope, in place to prevent collisions, which she collided with…..

Posted: January 23, 2012 | Author: Recreation Law | Filed under: New Mexico, Ski Area | Tags: New Mexico, Ski Patrol, Ski Safety Act, Summary judgment, Taos Ski Valley, Taos Ski Valley New Mexico, United States, United States Forest Service | 1 Comment

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see

The plaintiff in this case suffered a broken back, ribs, hip and pelvis after hitting a rope used to direct traffic at Taos Ski Valley, Inc (referred to as TSV by the court). The plaintiff was an experienced skier, and the rope had been in place for twelve years.

The plaintiff sued for:

…failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles; TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages; TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary; and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV….

Taos moved to dismiss three of the claims with a motion based on a failure to state a claim. That is a motion that argues based on the allegations of the plaintiff’s complaint, there is no legal liability on the part of the defendants. The plaintiff has failed to state a legal claim that the defendant can be held liable for. Two of those claims were dismissed.

The ski area then filed a motion for summary judgment, which dismissed the remaining claims of the plaintiff based on the New Mexico Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq.

So?

The plaintiff appealed the dismissal of her case. The first basis of her appeal was based on the NM Ski Safety Act. The act provides that:

…every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so….

She argued that the installation of the rope created a hazard which the ski area did not warn her about.

The court agreed with the ski area and held that even if the rope was a hazard, it was not feasible to correct the hazard and thus, under the statute, not a hazard the ski area needed to warn the plaintiff about.

The plaintiff then argued the ski area breached its duty because it did not mark its trails with the appropriate signage.

Section 24-15-7(C) provides:

Every ski operator shall have the following duties with respect to the operation of a skiing area:

* * *

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .

The plaintiff’s expert witness opined that three ropes would be better and easier to see. However, the court found the expert’s opinion to be speculation and not persuasive. (Personally, three ropes create a real barrier. Think skiing into a fence rather than one line.)

The plaintiff’s next argument procedural in nature. Normally, I leave procedural issues out of this reviews, however this one might be good to know. The plaintiff wanted to depose the resort’s Chief Groomer and the Assistant head of the Ski Patrol. The resort filed a motion for a protective order which prevented the plaintiff from deposing these employees.

The appellate court held that since one of the senior employees of the resort was the responsible person, to who both subordinate employees ultimately reported, there was no need to depose the two employees. The Ski Area General Manager testified that he had the ultimate responsibility for marking the resort, which was enough for the court to prevent additional discovery.

The final issue not covered by the New Mexico Ski Safety Act is the plaintiff’s claim that based on the Special Use Permit issued by the US Forest Service to the ski area, she was a third party beneficiary, and permit/contract was breached.

This argument was rejected because the language of the New Mexico Ski Safety Act language indicated that the provisions within the act were to be the only remedy available to injured skiers.

The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].

As the sole remedy, the arguments of the plaintiff did not give rise to a claim.

So Now What?

This is a classic “damned if you do and damned if you don’t” situation for a defendant. If you don’t put up the rope, skiers are going to collide, causing injuries. If you do put up the rope, a skier may hit the rope. This is the balance test that a business must do in the US. To quote a sixties TV show turned into a 1980’s movie “In any case, were I to invoke logic, logic clearly dictates that the needs of the many outweigh the needs of the few.”

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #Taos, Taos Ski Valley, Skiing, #NM, New Mexico, #NSAA, National Ski Area Association,

WordPress Tags: Skier,resort,boundary,collisions,Kidd,Taos,Valley,LEXIS,Serv,Callaghan,Black,bamboo,plaintiff,suspension,negligence,obligations,States,beneficiary,installation,failure,allegations,complaint,defendants,defendant,area,judgment,Mexico,Stat,dismissal,basis,operator,duties,dangers,statute,Section,symbol,degree,areas,symbols,association,opinion,speculation,barrier,Think,argument,Chief,Groomer,Assistant,Patrol,employees,person,General,Manager,discovery,Special,Permit,Forest,Service,legislature,violation,injury,action,arguments,situation,injuries,movie,logic,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,NSAA,National,third,three,skiers

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Posted: January 23, 2012 | Author: Recreation Law | Filed under: Legal Case, Ski Area | Tags: Memorandum Opinion, New Mexico, Taos Ski Valley, Taos Ski Valley New Mexico, United States | Leave a comment

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Becky J. Kidd, Plaintiff-Appellant, v. Taos Ski Valley, Inc., Defendant-Appellee.

No. 95-2066

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

July 5, 1996, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (CIV-93-327-JC).

DISPOSITION: AFFIRMED.

COUNSEL: Grant Marylander (Jim Leventhal and Natalie Brown, of Leventhal & Bogue, Denver, Colorado, and Marion J. Craig, III, Roswell, New Mexico, with him on the briefs) of Leventhal & Bogue, Denver, Colorado, for Plaintiff-Appellant.

Joe L. McClaugherty (Jere K. Smith with him on the brief), Santa Fe, New Mexico, for Defendant-Appellee.

JUDGES: Before BRORBY, BARRETT, and LIVELY, ^* Circuit Judges.

* The Honorable Pierce Lively, Senior Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.

OPINION BY: BARRETT

OPINION

[*850] BARRETT, Senior Circuit Judge.

Becky J. Kidd (Kidd) appeals from a memorandum opinion and order granting Taos Ski Valley, Inc. (TSV) summary judgment and dismissing her complaint with prejudice.

Kidd suffered a broken back, ribs, hip, and pelvis in a skiing accident at TSV. “Her injuries were possibly received when she crossed a diversionary rope located on an area permanently marked as a slow skiing area by a huge orange banner.” (Appellant’s Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445). “The black and [**2] yellow rope, held up by bamboo poles and marked with strips of orange fluorescent flagging, was intended to close off a portion of the mountain to prevent collisions between skiers returning to the base from different sides of the mountain.” Id. “Plaintiff, an experienced TSV skier, never saw the rope closure.” Id. at 445-46.

Kidd filed a complaint in which she alleged, inter alia, that: TSV, in installing the diversionary rope, had breached its obligations under New Mexico’s Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq. (the Act), by failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles (Count I); TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages (Count II); TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary (Count III); and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV (Count IV).

TSV moved to dismiss Counts II, III, and IV for failure to state a claim [**3] upon which [*851] relief could be granted. The district court denied TSV’s motion to dismiss Kidd’s Count II punitive damage claim, concluding that although the Act was silent on the availability of punitive damages, general New Mexico law principles allowed for the recovery of punitive damages in limited circumstances, including conduct committed with a wanton disregard of a plaintiff’s rights. The district court did, however, grant TSV’s motion to dismiss Counts III and IV, Kidd’s third party beneficiary and inherently dangerous condition claims.

In dismissing Count III, the district court concluded that the “language of the statute indicates that the legislature intended the Act as the sole remedy for skiers” and that New Mexico case law “provides persuasive authority indicating that the state courts would reject Plaintiff’s theory of liability based on a third party beneficiary cause of action.” (Appellant’s Appendix, Vol. I at 73-74). In dismissing Count IV, the district court concluded that the inherently dangerous activity doctrine “is inconsistent with the Act because it would permit the imposition of additional duties on ski operators” and that the “Act was intended to limit the [**4] duties which can be imposed upon ski area operators [and] therefore forecloses the application of the” doctrine. Id. at 75-76. Kidd’s subsequent motion for reconsideration of the dismissal of Count III was denied.

Thereafter, TSV moved for summary judgment on Kidd’s remaining claims and Kidd moved for partial summary judgment on the issue of TSV’s negligence. Following briefing, the district court entered a memorandum opinion and order granting TSV summary judgment and dismissing Kidd’s complaint with prejudice. In so doing, the district court found that: although TSV offered convincing evidence that Kidd breached her duty to ski safely, Kidd’s testimony that she was not skiing out of control created a genuine issue of material fact making summary judgment improper, (Appellant’s Appendix, Vol. II at 447); Kidd failed to produce competent evidence from which a reasonable juror could conclude that the rope closure was not in accordance with industry usage and National Ski Area Association (NSAA) standards, id. at 449; and, no reasonable juror could conclude that the closure itself created a hazard under the Act requiring TSV to warn skiers of its presence. Id. at 451.

[**5] On appeal, Kidd contends that the district court erred when it granted TSV’s motion for summary judgment, barred her from obtaining critical discovery, and dismissed her third party beneficiary claim.

Kidd contends that the district court erred when it granted summary judgment in favor of TSV. Kidd argues that summary judgment was erroneous because she presented substantial evidence that TSV breached its duties under §§ 24-15-7(I) and (C) of the Act.

[HN1] We review a district court’s grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Lancaster v. Air Line Pilots Ass’n Int’l., 76 F.3d 1509, 1516 (10th Cir. 1996). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Hagelin for President Comm. of Kan. v. Graves, 25 F.3d 956, 959 (10th Cir. 1994), cert. denied, U.S. , 115 S. Ct. 934, 130 L. Ed. 2d 880 (1995). When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the non-moving/opposing party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). [**6]

Kidd asserts that summary judgment was inappropriate because there was substantial evidence that TSV breached its duty under § 24-15-7(I) of the Act. This section provides that ” [HN2] every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Kidd argues that TSV breached this duty when it installed the single strand diversionary rope and blocked off an otherwise skiable [*852] area without giving the skier sufficient warning. The district court rejected these arguments, concluding that:

The evidence submitted by the parties in this case demonstrates as a matter of law that the TSV rope closure, by virtue of its location and purpose, cannot qualify as a hazard under the Act. The rope is located in a well-marked slow skiing zone near the base of the mountain. The closure serves to prevent, not cause, collisions between skiers returning to the base area. Moreover, the undisputed evidence shows that the rope has been in place since 1978, and [over one] million skiers have managed to ski past it without injury.

(Appellant’s Appendix, [**7] Vol. II at 447).

Kidd maintains that this conclusion was erroneous and that summary judgment improper when, as here: TSV’s expert acknowledged that a rope between two poles on a ski slope could be a hazard if a skier did not have time to react to the rope or could not see it. (Appellant’s Appendix, Vol. II at 333); the evidence was undisputed that Kidd, an experienced TSV skier did not see the rope, id. at 445-46; Kidd presented the testimony of another skier who stated that the “rope was not reasonably visible” and that “in skiing down the slope to Becky J. Kidd I did not see the rope,” id. at 309; and photographs taken immediately after the accident demonstrated the rope’s lack of visibility against the white background.

TSV responds that summary judgment was proper based on the undisputed evidence that the area of Kidd’s accident had been marked off and closed to skiing for at least twelve years without incident and its expert’s testimony that the rope did not create a hazardous situation and that the rope complied with the Act. TSV also maintains that a ski area operator’s duty to warn of or correct particular hazards or dangers under § 24-15-7(I) is limited to those [**8] hazards or dangers which are known to the operator and that Kidd failed to present any evidence that TSV knew that the rope closure was a hazard.

[HN3] Although the determination of “whether a duty [under the Act] has been breached is a question of fact,” Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648, 655 (N.M. Ct. App.), cert. denied, 113 N.M. 815, 833 P.2d 1181 (1992), the determination of “whether a duty exists is generally a question of law for the court to determine.” Id. As a matter of law, the duty imposed on ski area operators by § 24-15-7(I) “is limited to situations where the particular hazard is both known to the ski area operator and warning of or correcting the particular hazard is feasible.” Id. at 656 (emphasis original).

Applying Lopez, we hold that the district court did not err in granting TSV summary judgment on Kidd’s § 24-15-7(I) claim. Kidd failed to present any probative evidence that the diversionary rope in question was a “particular hazard . . . known to” TSV. On the contrary, the undisputed evidence was that the rope had been in place since 1978 and over one million skiers had managed to ski past it without injury. Therefore, TSV was entitled [**9] to judgment on this claim as a matter of law.

Kidd reasons that she presented substantial evidence that TSV breached its duty under § 24-15-7(C) of the act making summary judgment on this claim improper.

[HN4] Section 24-15-7(C) provides:

Every ski operator shall have the following duties with respect to the operation of a skiing area:

* * *

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .

(Emphasis added).

Kidd asserts that she presented evidence which created a triable issue on whether TSV breached its duty under § 24-15-7(C) to comply with NSAA standards when it installed a single strand diversionary rope rather than multiple ropes or other barriers. Kidd [*853] argues that the evidence included the fact that although the NSAA had no written standards for marking closures, industry practice dictated the proper use of ropes for closures; TSV’s expert on NSAA standards stated that rope closures should be [**10] as visible as possible, that multiple ropes create a more effective barrier than single ropes, and that unless there are indications to the contrary, three rope barriers should be used rather than a single rope (Appellant’s Appendix, Vol. II at 335, 340 and 343); and there was nothing to prevent TSV from using multiple ropes. Kidd maintains that this evidence created a triable issue on whether TSV complied with NSAA standards making summary judgment on this claim improper.

TSV responds that: the only issue is whether the rope closure at issue complied with NSAA standards; Kidd is attempting to divert the inquiry away from whether TSV complied with NSAA standards by focusing on what TSV could have done rather than on what it did; and its expert testimony established, without exception, that the rope closure complied with NSAA standards.

We agree with the district court’s findings that Kidd produced “only speculation, not expert testimony . . . in attempting to rebut Defendant’s submitted compliance with the Act” and that “the record [is] absent of competent evidence that the closure fell outside industry norms established by NSAA standards.” (Appellant’s Appendix, Vol. II at 450). [**11] Kidd failed to meet her burden as a nonmoving party of producing specific facts “by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves” to avoid TSV’s properly supported summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Her conclusory allegations are not sufficient to defeat TSV’s motion. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995).

II.

Kidd contends that the district court erred when it barred her from obtaining critical discovery relevant to issues raised in the summary judgment proceedings. Kidd maintains that the district court abused its discretion when it prevented her from deposing TSV employees and from designating a visual acuity expert.

Kidd states that the district court abused its discretion when it prevented her from deposing TSV employees concerning the hazardous nature of the rope. [HN5] Under Fed. R.Civ. P. 26(c), the district court may limit or bar discovery. The decision of a district court to enter a protective order under Rule 26(c) is reviewed for an abuse of discretion. Boughton v. Cotter Corp., 65 F.3d 823, 828 (10th Cir. 1995). Under this standard, “we [**12] will not disturb a trial court’s decision absent ‘a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'” Thomas v. International Business Machs., 48 F.3d 478, 482 (10th Cir. 1995)(citations omitted).

Senior TSV employees testified that patrol members had been trained concerning the use of markings and compliance with both TSV and the Act’s standards. They also testified that patrol members were instructed to insure that markings were visible. When Kidd attempted to depose ski patrol members on their training and whether the rope in question was appropriately marked, TSV filed a motion for a protective order.

Following a hearing, the magistrate judge entered a discovery order granting TSV’s motion “to the extent Defendant seeks to bar the deposition of the Chief Groomer and the Assistant Head of the Ski Patrol at this time, based upon the court’s finding that subordinate employees should not be deposed to the extent the same information may be obtained from supervisors.” (Appellant’s Appendix, Vol. I at 109).

Kidd objected to the magistrate’s order. Thereafter, the district court [**13] entered a memorandum opinion overruling Kidd’s objections, finding, inter alia:

Plaintiff next objects to Magistrate Judge Svet’s limitation of questioning as to certain non-supervisory employees. The court has reviewed the deposition testimony provided by both the Plaintiff and Defendant [*854] and fails to identify the inconsistencies claimed by the Plaintiff. In fact, Plaintiff’s assertions misstate the evidence. The clear import of all of the depositions is that the supervisory [personnel] are ultimately responsible for the marking of the trails, and that the non-supervisory patrol members have little if any discretion in deciding how trails and hazards are to be marked.

(Appellant’s Appendix at 442B-42C).

We agree. Michael Blake, TSV’s General Manager, testified that he had the “ultimate responsibility” for properly marking TSV. (Appellant’s Appendix, Vol. II at 285). Under these circumstances, we hold that the district court did not abuse its discretion in overruling Kidd’s objections to the magistrate judge’s order.

Kidd declares that the district court abused its discretion when it prevented her from designating a visual acuity expert. The decision to allow [**14] the testimony of an expert not described or listed in the pretrial order rests with the sound discretion of the district court and will not be disturbed absent an abuse of discretion. F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1556 (10th Cir. 1994).

In the initial pre-trial report, Kidd agreed to identify her liability expert witnesses by September 15, 1993. Kidd did not identify any liability expert witnesses by that date. However, Kidd retained additional counsel on January 15, 1994. On January 21, 1994, Kidd’s additional counsel filed a motion to add Freeman Hall, a visual acuity specialist and engineer, as an expert witness. The magistrate judge denied Kidd’s motion.

Following a review of Kidd’s objections to the magistrate judge’s order, the district court entered a memorandum opinion overruling Kidd’s objections, stating:

Plaintiff . . . objects to the Magistrate Judge’s refusal to permit the endorsement of an expert witness . . . . Plaintiff had sought to add an additional expert witness over four months after the deadline for designating experts had passed. Plaintiff has provided no reason for her delay, and the court can find no reason other than the recent addition [**15] of new counsel for the Plaintiff. The court therefore finds that Magistrate Judge Svet’s order denying the addition of the expert . . . is not clearly erroneous or contrary to law.

(Appellant’s Appendix at 442B).

Kidd asserts that the district court abused its discretion when it prevented her from designating a visual acuity expert who would have testified that the rope in question was not visible when, as here: the trial date had not been set; TSV would not have been prejudiced; she had been diligent, with the exception of designating the expert, in conducting her discovery; she did not appreciate the need for a visual acuity expert until she retained additional counsel; and a visual acuity expert was a critical expert who would explain to the jury what factors affected the rope’s visibility and why it could not be seen by skiers.

We hold that the district court did not abuse its discretion in refusing to allow Kidd to designate a visual acuity expert. Kidd’s request to designate an expert was made more than four months after the time period for designating such experts had lapsed. Moreover, Kidd provided no reason for her delay, save to allege that she was not aware of [**16] the need for such an expert until after she had retained additional counsel and that the expert would explain why the rope could not be seen by skiers. Neither of these assertions are sufficient to support Kidd’s claim that the district court abused its discretion, particularly in that it was undisputed that Kidd, “an experienced TSV skier, never saw the rope closure.” (Appellant’s Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445).

III.

Kidd contends that the district court erred when it dismissed her third party beneficiary claim. [HN6] We review de novo the district court’s dismissal for failure to state a claim. Seymour v. Thornton, 79 F.3d 980, 984 (10th Cir. 1996).

In Count III, Kidd alleged, inter allia:

[*855] Under the terms of the Permit between the United States and the Defendant, Defendant is to conduct the operations of the ski area, with full recognition of the need of public safety, ¹ and is to regularly inspect the ski area and correct any hazardous conditions.

1 Section “24. Safety” of the Special Use Permit between TSV and the Forest Service provided in part:

The permittee [TSV] shall conduct the operations authorized by this permit with full recognition of the need for public safety. In furtherance of this requirement, the permittee shall prepare a safety plan designed to provide adequate safety to the users of the permitted area and facilities. The plan shall have written approval of the Forest Supervisor prior to the operation of the facilities for public-use purposes. The plan shall include, but shall not be limited to, avalanche prevention and control; amount and kind of rescue equipment; conditioning of trails; and frequency of permittee inspection of area, equipment, machinery, and uphill facilities.

(Appellant’s Appendix, Vol. I at 37).

[**17] The Defendant’s maintaining and permitting the use of an unmarked Rope in the middle of the ski area constituted a breach of this lease term.

The United States . . . in granting the Defendant a right to use [its] property, required that the operation be conducted with full recognition for the need of public safety. The people of the United States, including the Plaintiff, are third-party beneficiaries of the provisions the Lease Agreement between the United States and the Defendant. The Defendant’s operation of the ski area, in violation of the needs for “Public Safety”, constitute a breach of the Agreement. Plaintiff, was a third-party beneficiary of this Lease Contract, had the right to expect the contract to be performed and therefore should be allowed to recover her damages caused by Defendant’s breach.

(Appellant’s Appendix at 5). (Emphasis added).

In dismissing Count III, the district court concluded:

The question before the court is whether the Act provides the exclusive remedy available to the Plaintiff.

* * *

The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator [**18] is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].” . . . [HN7] Under New Mexico law when the meaning of a statute is plain, it must be given effect, and there is no room for construction . . . . Here, the language of the Act is clear and unambiguous, stating that no action shall lie against a ski area operator unless the operator violates the Act and that violation is the proximate cause of the skier’s injury.

The precise question of whether a ski operator is liable to a plaintiff as a third party beneficiary has not been addressed by any appellate court in New Mexico. In Wood v. Angel Fire Ski Corp., 108 N.M. 453, 455, 774 P.2d 447 (Ct.App. 1989), the New Mexico Court of Appeals held that the Act ‘limited in part the tort liability of ski operators.’ Later, in Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648 (Ct.App. 1992), the plaintiff sued for tort damages resulting from personal injury. Again, the Court of Appeals held that the ‘provisions of the Act were intended by the legislature to exclusively control each [**19] of plaintiff’s claims herein.’

From the above cases, it is clear that [HN8] the Act is the sole remedy for an action based in tort. In regards to a contract claim, however, the above cases provide only dicta. Yet, these opinions provide persuasive authority indicating that the state courts would reject the Plaintiff’s theory of liability based on a third party beneficiary cause of action. Since the clear language of the Act must be given its plain effect, this Court concludes that a state court hearing this issue would reject the third party beneficiary theory contained in Count III.

(Appellant’s Appendix, Vol. I at 73-74).

We agree with the district court that New Mexico case law provides “persuasive authority [*856] indicating that the state courts would reject Kidd’s theory of liability based on a third party beneficiary cause of action.”

AFFIRMED.

New Mexico Skier Safety Act

Posted: January 23, 2012 | Author: Recreation Law | Filed under: New Mexico, Ski Area | Tags: Chairlift, New Mexico, Ski lift, Ski Resort, skiing | Leave a comment

New Mexico Skier Safety Act

Chapter 24. Health and Safety

Article 15. Ski Safety

Go to the New Mexico Code Archive Directory

Contents

§ 24-15-1. Short title. 1

§ 24-15-2. Purpose of act1

§ 24-15-3. Definitions. 2

§ 24-15-4. Insurance. 2

§ 24-15-5. Penalty. 3

§ 24-15-6. Provisions in lieu of others. 4

§ 24-15-7. Duties of ski area operators with respect to skiing areas. 4

§ 24-15-8. Duties of ski area operators with respect to ski lifts. 5

§ 24-15-9. Duties of passengers. 5

§ 24-15-10. Duties of the skiers. 5

§ 24-15-11. Liability of ski area operators. 7

§ 24-15-12. Liability of passengers. 7

§ 24-15-13. Liability of skiers. 7

§ 24-15-14. Limitation of actions; notice of claim.. 7

§ 24-15-1. Short title

Chapter 24, Article 15 NMSA 1978 may be cited as the “Ski Safety Act”.

§ 24-15-2. Purpose of act

A. In order to safeguard life, health, property and the welfare of this state, it is the policy of New Mexico to protect its citizens and visitors from unnecessary hazards in the operation of ski lifts and passenger aerial tramways and to require liability insurance to be carried by operators of ski lifts and tramways. The primary responsibility for the safety of operation, maintenance, repair and inspection of ski lifts and tramways rests with the operators of such devices. The primary responsibility for the safety of the individual skier while engaging in the sport of skiing rests with the skier himself. The state, through the Ski Safety Act [24-15-1 NMSA 1978], recognizes these responsibilities and duties on the part of the ski area operator and the skier.

B. It is recognized that there are inherent risks in the sport of skiing, which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator. It is the purpose of the Ski Safety Act [24-15-1 NMSA 1978] to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier or passenger expressly assumes and for which there can be no recovery.

§ 24-15-3. Definitions

As used in the Ski Safety Act [24-15-1 NMSA 1978]:

A. “ski lift” means any device operated by a ski area operator used to transport passengers by single or double reversible tramway, chair lift or gondola lift, T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow;

B. “passenger” means any person, at any time in the year, who is lawfully using a ski lift or is waiting to embark or has recently disembarked from a ski lift and is in its immediate vicinity;

C. “ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state;

D. “ski area operator” means any person, partnership, corporation or other commercial entity and its agents, officers, employees or representatives who has operational responsibility for any ski area or ski lift;

E. “skiing” means participating in the sport in which a person slides on snow, ice or a combination of snow and ice while using skis;

F. “skiing area” means all slopes, trails, terrain parks and competition areas, not including any ski lift;

G. “skier” means any person, including a person enrolled in ski school or other class for instruction, who is on skis and present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include a passenger;

H. “ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing;

I. “ski retention device” means a device designed to help prevent runaway skis; and

J. “skis” means any device used for skiing, including alpine skis, telemark skis, cross-country skis, mono-skis, snowboards, bladerunners, adaptive devices used by disabled skiers, or tubes, sleds or any other device used to accomplish the same or a similar purpose to participate in the sport of skiing.

§ 24-15-4. Insurance

A. Every operator shall file with the state corporation commission [public regulation commission] and keep on file therewith proof of financial responsibility in the form of a current insurance policy in a form approved by the commission, issued by an insurance company authorized to do business in the state, conditioned to pay, within the limits of liability herein prescribed, all final judgments for personal injury or property damage proximately caused or resulting from negligence of the operator covered thereby, as such negligence is defined and limited by the Ski Safety Act [24-15-1 NMSA 1978]. The minimum limits of liability insurance to be provided by operators shall be as follows:

SKI SAFETY ACT

Liability insurance

Limits of Liability

Required Minimum Coverage’s

For Injuries, Death or Damages

Kind and Number of Lifts Operated	Limits for Bodily Injury to or Death of Property One Person Damage	Limits for Bodily Injury to or Death of All Persons Injured or Killed in Any One Accident	Property Damage
Not more than three surface lifts	$ 100,000	$ 300,000	$ 5,000
Not more than three ski lifts, including one or more chair lifts	250,000	500,000	25,000
More than three ski lifts or one or more tramways	500,000	1,000,000	50,000.

B. No ski lift or tramway shall be operated in this state after the effective date of the Ski Safety Act [24-15-1 NMSA 1978] unless a current insurance policy as required herein is in effect and properly filed with the state corporation commission [public regulation commission]. Each policy shall contain a provision that it cannot be canceled prior to its expiration date without thirty days’ written notice of intent to cancel served by registered mail on the insured and on the commission.

§ 24-15-5. Penalty

Any operator convicted of operating a ski lift or aerial passenger tramway without having obtained and kept in force an insurance policy as required by the Ski Safety Act [24-15-1 NMSA 1978] is guilty of a misdemeanor punishable by a fine of not more than five hundred dollars ($ 500) for each day of illegal operation. The attorney general or the district attorney of the county where the ski area is located has the power to bring proceedings in the district court of the county in which the ski area is located to enjoin the operation of any ski lift or tramway being operated without a current insurance policy, in the amounts prescribed herein, being obtained and kept in force and covering the operator concerned.

§ 24-15-6. Provisions in lieu of others

Provisions of the Ski Safety Act [24-15-1 NMSA 1978] are in lieu of all other regulations, registration or licensing requirements for ski areas, ski lifts and tramways. Ski lifts and tramways shall not be construed to be common carriers within the meaning of the laws of New Mexico.

§ 24-15-7. Duties of ski area operators with respect to skiing areas

Every ski area operator shall have the following duties with respect to the operation of a skiing area:

A. to mark all snow-maintenance vehicles and to furnish such vehicles with flashing or rotating lights, which shall be in operation whenever the vehicles are working or are in movement in the skiing area;

B. to mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snow-making operations and located on ski slopes and trails;

C. to mark in a plainly visible manner the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty, using the symbols established or approved by the national ski areas association; and those slopes, trails or areas which are closed, or portions of which present an unusual obstacle or hazard, shall be marked at the top or entrance or at the point of the obstacle or hazard with the appropriate symbols as are established or approved by the national ski areas association or by the New Mexico ski area operators association;

D. to maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated in accordance with the symbols and containing a key to the symbols;

E. to designate by trail board or otherwise at the top of or entrance to the subject trail or slope which trails or slopes are open or closed;

F. to place or cause to be placed, whenever snow-maintenance vehicles or snow-making operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top or entrance of such trail or slope;

G. to provide ski patrol personnel trained in first aid, which training meets at least the requirements of the national ski patrol outdoor emergency care course, and also trained in winter rescue and toboggan handling to serve the anticipated number of injured skiers and to provide personnel trained for the evacuation of passengers from stalled aerial ski lifts. A first aid room or building shall be provided with adequate first aid supplies, and properly equipped rescue toboggans shall be made available at all reasonable times at the top of ski slopes and trails to transport injured skiers from the ski slopes and trails to the first aid room;

H. to post notice of the requirements of the Ski Safety Act [24-15-1 NMSA 1978] concerning the use of ski retention devices;

I. to warn of or correct particular hazards or dangers known to the operator where feasible to do so; and

J. to warn of snowmobiles or all-terrain vehicles (ATV’s) operated on the ski slopes or trails with at least one lighted headlamp, one lighted red tail lamp, a brake system and a fluorescent flag that is at least forty square inches and is mounted at least six feet above the bottom of the tracks or tires.

§ 24-15-8. Duties of ski area operators with respect to ski lifts

Every ski area operator shall have the duty to operate, repair and maintain all ski lifts in safe condition. The ski area operator, prior to December 1 of each year, shall certify to the state corporation commission [public regulation commission] the policy number and name of the company providing liability insurance for the ski area and the date of the ski lift inspections and the name of the person making such inspections.

§ 24-15-9. Duties of passengers

Every passenger shall have the duty to conduct himself carefully and not to:

A. board or embark upon or disembark from a ski lift except at an area designated for such purpose;

B. drop, throw or expel any object from a ski lift;

C. do any act which shall interfere with the running or operation of a ski lift;

D. use any ski lift unless the passenger has the ability to use it safely without any instruction on its use by the ski area operator or requests and receives instruction before boarding the ski lift;

E. willfully or negligently engage in any type of conduct which contributes to or causes injury to any person;

F. embark on a ski lift without the authority of the ski area operator;

G. use any ski lift without engaging such safety or restraining devices as may be provided; or

H. wear skis without properly securing ski retention devices; or

I. use a ski lift while intoxicated or under the influence of any controlled substance.

§ 24-15-10. Duties of the skiers

A. It is recognized that skiing as a recreational sport is inherently hazardous to skiers, and it is the duty of each skier to conduct himself carefully.

B. A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.

C. Responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of each individual involved in the collision, except where an employee, agent or officer of the ski area operator is personally involved in a collision while in the course and scope of his employment or where a collision resulted from any breach of duty imposed upon a ski area operator under the provisions of Sections 24-15-7 or 24-15-8 NMSA 1978. Each skier has the duty to stay clear of and avoid collisions with snow-maintenance equipment, all-terrain vehicles and snowmobiles marked in compliance with the provisions of Subsections A and J of Section 24-15-7 NMSA 1978, all other vehicles, lift towers, signs and any other structures, amenities or equipment on the ski slopes and trails or in the skiing area.

D. No person shall:

(1)place any object in the skiing area or on the uphill track of any ski lift which may cause a passenger or skier to fall;

(2)cross the track of any T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow, except at a designated location;

(3)when injured while skiing or using a ski lift or, while skiing, when involved in a collision with any skier or object in which an injury results, leave the ski area before giving his name and current address to the ski area operator, or representative or employee of the ski area operator, and the location where the injury or collision occurred and the circumstances thereof; provided, however, in the event a skier fails to give the notice required by this paragraph, a court, in determining whether or not such failure constitutes a violation of the Ski Safety Act [24-15-1 NMSA 1978], may consider the reasonableness or feasibility of giving such notice; or

(4)use a ski lift, skiing area, slopes or trails while intoxicated or under the influence of any controlled substance.

E. No skier shall fail to wear retention straps or other ski retention devices to help prevent runaway skis.

F. Any skier upon being injured shall indicate, to the ski patrol personnel offering first aid treatment or emergency removal to a first aid room, his acceptance or rejection of such services as provided by the ski area operator. If such service is not refused or if the skier is unable to indicate his acceptance or rejection of such service, the acceptance of the service is presumed to have been accepted by the skier. Such acceptance shall not constitute a waiver of any action for negligent provision of the service by the ski patrol personnel.

§ 24-15-11. Liability of ski area operators

Any ski area operator shall be liable for loss or damages caused by the failure to follow the duties set forth in Sections 24-15-7 and 24-15-8 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered, and shall continue to be subject to liability in accordance with common-law principles of vicarious liability for the willful or negligent actions of its principals, agents or employees which cause injury to a passenger, skier or other person. The ski area operator shall not be liable to any passenger or skier acting in violation of his duties as set forth in Sections 24-15-9 and 24-15-10 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-12. Liability of passengers

Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-9 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-13. Liability of skiers

Any skier shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-10 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-14. Limitation of actions; notice of claim

A. Unless a ski area operator is in violation of the Ski Safety Act [24-15-1 NMSA 1978], with respect to the skiing area and ski lifts, and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area operator by any skier or passenger or any representative of a skier or passenger. This prohibition shall not prevent the bringing of an action against a ski area operator for damages arising from injuries caused by negligent operation, maintenance or repair of the ski lift.

B. No suit or action shall be maintained against any ski area operator for injuries incurred as a result of the use of a ski lift or ski area unless the same is commenced within three years of the time of the occurrence of the injuries complained of.

Created January 9, 2012

Cyclists! We need to change this. It is legal to change it, it is right to change it.

Posted: January 18, 2012 | Author: Recreation Law | Filed under: Criminal Liability, Cycling, Uncategorized | Tags: Cycling, Driving, Law, Maui, Organizations, Sports, Traffic | Leave a comment

Organization of the New York City Police Depar...

Image via Wikipedia

We have to get/force/educate law enforcement that cyclists are not just future road kill!

If you ride regularly, other than on a trainer, you’ve probably been scared, brushed or hit on a bike by a vehicle. If you are injured or your bike or other property is damaged, a

nd you call the police/state patrol/sheriff, you are probably ignored, or if they respond, still ignored.

People are starting to take action about the issue of motorists killing or almost killing cyclists. See Tell Maui and HI that you’re not coming until they prove the place is safe and the news article Family Of Killed Cyclist Mathieu Lefevre Sues NYPD For Withholding Information. The horses are hitched; it’s time to get on the band wagon!

This has to stop!

There are several things you must do (yes I’m not suggesting I’m telling you).

Before an incident.

1. Get a law passed that gives cyclists the right to call law enforcement that makes law enforcement respond.

The law should say the cops have to show up.

The law should say the cops have to take a report.

2. If you are politically active, ask politicians if they support the right of cyclists to be on the road. The law has already allowed it, so this is to find out any bias.

Once you get an answer if is one you like to tell them you are going to support them and tell everyone.

If it is an answer, you do not like, get it confirmed somehow. Record the response or get a written response, some way to hold the person accountable later. Usually when a politician finds out, they’re commented was stupid, they correct it.

If they still stand by a negative answer, let the world know. If proof of the claim I’ll post it, and I know of a lot of other cycling blogs that will post it. Let your local bicycle advocacy groups know. (You are a member right!).

After an Incident

English: A commuter cyclist in the London morn...

Image via Wikipedia

For what to do before an incident and what to do after an incident see: How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?

If you follow the advice in How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?You should get a response. If not, then proceed to step 3.

After an Incident and you do not get a response!

1. Make noise. Make lots of noise. To borrow an old slogan, be loud and proud.

Contact the head of the law enforcement agency and get a reason why you have not had a response. Furthermore, ask for a copy of the file on the incident. In most states, you have the right and can get this file.

Contact the District Attorney’s office and find out why charges have not been pressed against the driver. Ask for a copy of the file.

Contact the chief political politician, mayor, commissioner, governor and ask them why nothing has happened. Ask them to investigate. A month later asks for a copy of their file on the incident.

Contact the local Visitors Bureau and let them know that you have that their city/county/state is dangerous, and you will let other cyclists know. Those cyclists’ make up a big part of the economy and cyclists visit the area to ride.

The more the merrier!

Ask your friends and other cyclists to help. They can also contact law enforcement, the District Attorney, the visitor’s bureau and the media to add weight and support to what you are doing.

In all communications, it is important for both you, and others that are assisting, to copy people on the communications. In many cases the people you copy are the most important part of the letter. CC everyone above on each other’s letters. Always include any bicycle groups or clubs with a copy. Include bike shops as a cc in your communication so the people you are contacting understand that you are getting the word out.

In your communications be polite and be persistent. Set up a schedule. Give the prosecutor and law enforcement a month at first. No response gives them another month, then 2 weeks then every week. I would suggest you do this in such a way you can keep records of your communications. What you said and when you said it. Email or in writing is best.

In your communications be polite and be persistent. Do not threaten anything except your vote and your obligation to communicate. You do not want to put yourself in any box except as an aggrieved citizen or worse charged with harassing a government official.

If you have not heard anything after the first week, get on the publicity horn. Prepare a written statement of what occurred. Include any witness names and contact information. Include any photographs, GPS files, etc. and send it to every media outlet in your community and every cycling media outlet. Most will ignore it, but on a slow news day, you may get lucky.

You want your initial contact to be valid enough so that you are not considered a whack job by the media. You want to come across as a member of the community hat was almost killed, and you want to know why the police have not done anything.

If you want to invest a ton of time, you can go to the courts in many jurisdictions and request a special prosecutor. A special prosecutor is one from another county whom the court orders to investigate the case and see if charges should be brought. This is rarely granted, however, it will show that you are serous, and it will help get more media interest in your case.

You may never get a ticket issued against the driver. However, you will let the community know that cycling is dangerous in your community and what politicians and other elected officials think about the issue.

If enough people do something, something will happen. Eventually, law enforcement will track down and start issuing tickets to.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, law enforcement, police, media, advocacy group, cycling clubs, sheriff,

WordPress Tags: Cyclists,enforcement,road,trainer,bike,vehicle,People,action,motorists,Tell,Maui,news,article,Cyclist,Mathieu,Lefevre,Sues,NYPD,Information,horses,band,wagon,incident,politicians,bias,Once,Record,response,person,politician,bicycle,advocacy,member,accident,advice,Make,noise,slogan,Contact,agency,District,Attorney,office,driver,commissioner,governor,Visitors,Bureau,area,visitor,media,letter,Include,communication,Give,prosecutor,Email,obligation,citizen,government,horn,Prepare,statement,outlet,Most,jurisdictions,ticket,officials,tickets,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,sheriff,month,week

Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the risk

Posted: January 16, 2012 | Author: Recreation Law | Filed under: Legal Case, New Jersey, Skier v. Skier | Tags: Collision, Death, Mountain Creek, New Jersey, NSAA, NSP, Ski, Skier Responsibility Code, Skier v. Skier Collision, Snowboard, Sports | Leave a comment

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542

The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.

This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)

Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”

This case

The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.

In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.

The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.

The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:

N.J.S.A. § 5:13-4. Duties of skiers

(4) Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”

If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.

The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.

Do any of those issues rise to the level that they are reckless?

In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:

….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4^th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)

Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)

A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)

…done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)

…recklessness is “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, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500

Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:

· failed to keep a proper lookout

· made a panic stop

· turned to his left in front of decedent

In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.

The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.

1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.

2. It was created as a guideline, not a standard of care.

3. Only Montana has incorporated the code in its statute.

So Now What?

My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.

Every lawsuit based ski area land; the ski area is going to have to do things that cost money.

1. Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.

2. Employees will be deposed and attend trial; the resort is going to have to pay them to attend.

3. When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.

These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.

This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.

From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.

From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.

The industry needs to:

· Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.

· Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.

· Define the Skier Responsibility Code as help, not the standard of care.

What do you think? Leave a comment.

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

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #NSP, #NSAA, National Ski Patrol, Mountain Creek, National Ski Area Association, Skier Responsibility Code, #Reckless, #Collisions, Ski Area, Ski Resort, #Snowboarding, #Skiing,

WordPress Tags: industry,litigation,nightmares,Angland,Mountain,Creek,Resort,Super,Unpub,LEXIS,life,principle,industries,boarder,bike,consequences,person,Here,interpretation,Brownlee,Decedent,assistance,estate,area,judgment,Jersey,Statute,arguments,jury,Duties,manner,diligence,plaintiff,lookout,collision,vision,Again,complaint,Mastro,Petrick,Rptr,Service,California,negligence,Strawbridge,Sugar,Supp,Dist,North,Carolina,defendant,Fontaine,Boyd,Rhode,Island,Stamp,Vail,Corporation,Colo,Colorado,action,knowledge,danger,actor,Hanks,Powder,Ridge,Restaurant,Conn,opinion,areas,argument,plaintiffs,National,Patrol,Skier,Code,caveats,fact,dozens,version,Association,guideline,Montana,disaster,definition,boarders,cost,money,lawsuit,Copies,information,Employees,attorneys,instances,inspection,insurance,From,perspective,outcome,Inform,collisions,Change,statutes,football,participant,Define,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,NSAA,skiers,snowboarder,three,website

It's not what I write, It's what you Learn

Bicycle Colorado is working hard to make Cycling Safer in Colorado

Do Something

What do you think? Leave a comment.

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

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Where, when etc. not available on the website. Also Sponsorships is going to be tough, everyone will be in Vegas for Interbike

Rate this:

Share this:

Actual report does not take into account participants and uses skiing just to get press, not because it is the worst sport.

Rate this:

Share this:

Problems may be more prevalent with older models of beacons

Rate this:

Share this:

I really wish I could find out how this case resolved

So?

Third Parties – non camp employees

So Now What?

What do you think? Leave a comment.

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

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

County sheriff deputy reports a helmet would have saved the man’s life, even though he was wearing one and died of blunt force trauma.

Do Something

What do you think? Leave a comment.

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

Rate this:

Share this:

Rate this:

Share this:

But for an outrageous expert opinion, the release would have ended this lawsuit.

What do you think? Leave a comment.

Rate this:

Share this:

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

Rate this:

Share this:

Rate this:

Share this:

Good job Tom!

What do you think? Leave a comment.

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

Rate this:

Share this:

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

What do you think? Leave a comment.

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

Rate this:

Share this:

Snow groomer claims increase in coverage and a 35% reduction in fuel costs.

Rate this:

Share this:

Calling 911 according to this court is starting a rescue which creates liability for failing to complete the rescue!

So? Summary of the case

So Now What?

What do you think? Leave a comment.

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

Rate this:

Share this:

Rate this:

Share this:

Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see

So?

So Now What?

What do you think? Leave a comment.

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

Rate this:

Share this: