Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Posted: November 21, 2011 Filed under: Legal Case, Minors, Youth, Children, Summer Camp, Texas, Youth Camps | Tags: Minor, Releases / Waivers, Summer Camp 2 CommentsGalvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
To read the analysis of this case see: Texas makes it easier to write a release because the law is clear.
Bruce Galvan, et al., Plaintiffs, v. The Salvation Army, Defendant.
CIVIL ACTION NO. H-10-3365
United States District Court For The Southern District Of Texas, Houston Division
2011 U.S. Dist. LEXIS 47257
May 3, 2011, Decided
May 3, 2011, Filed
CORE TERMS: Charitable Immunity Act, summary judgment, Charitable, amount of damages, conspicuousness, premature, matter of law, own negligence, settlement, affirmative defense, font, charitable organization, liability insurance coverage, per person, per occurrence, notice requirements, bodily injury, jury verdict, conscious indifference, reckless disregard, self-insurance, conspicuous, discovery, retention, qualify, cap, insurance coverage, enforceable, undisputed, attended
COUNSEL: [*1] For Bruce Galvan, Individually and as Next Friend, Cynthia Perez, Individually And as Next Friend, Plaintiffs: John Paul Venzke, LEAD ATTORNEY, The Venzke Law Firm LLP, Houston, TX; Michael Andrew Fisher, Dyment & Fisher, Houston, TX.
For Salvation Army, Defendant: Teresa Jones Del Valle, LEAD ATTORNEY, Del Valle Law Firm, P.C., Houston, TX.
JUDGES: Nancy F. Atlas, United States District Judge.
OPINION BY: Nancy F. Atlas
OPINION
MEMORANDUM AND ORDER
This personal injury case is before the Court on the Motion for Partial Summary Judgment Regarding Defendant’s Affirmative Defense of Release (“Release Motion”) [Doc. # 23] filed by Plaintiffs Bruce Galvan and Cynthia Perez. Defendant filed an Opposition [Doc. # 27], and Plaintiffs filed a Reply [Doc. # 28]. Also pending is Plaintiffs’ Motion for Partial Summary Judgment Regarding Defendant’s Defense of The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Motion”), to which Defendant filed an Opposition [Doc. # 29], and Plaintiffs filed a Reply [Doc. # 34]. Having reviewed the full record and having considered relevant legal authorities, the Court grants the Release Motion and denies without prejudice the Charitable Immunity Motion.
I.FACTUAL BACKGROUND
Plaintiffs [*2] Bruce Galvan and Cynthia Perez are parents of Plaintiff Christopher Galvan. Christopher was eleven years old when he attended Camp Hoblitzelle, a facility owned and operated by Defendant The Salvation Army. In June 2010, while at Camp Hoblitzelle, Christopher Galvan fell 40-50 feet from a zip-line and was seriously injured. Before Christopher attended Camp Hoblitzelle, Cynthia Perez signed a “Permission/Waiver Form for Residential Camps.” See Exh. A to Release Motion.
Plaintiffs filed this lawsuit seeking to recover from The Salvation Army for the injury to Christopher Galvan. Defendant has asserted the existence of the Release as an affirmative defense. Defendant has asserted also that The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Act”) limits its liability in this case to $500,000.00 per person and $1,000,000.00 per occurrence. Plaintiffs have moved for summary judgment on each of these arguments. The motions have been fully briefed.
II.STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing [*3] of the existence of an element essential to the party’s case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record. See Trevino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).
III.RELEASE MOTION
Defendant has asserted the existence of the Release signed by Cynthia Perez as an affirmative defense. Plaintiffs argue that they are entitled to summary judgment on the release defense because the Release in this case fails to satisfy the [*4] requirements for it to be enforceable.
Under Texas law, there are two fair notice requirements for release agreements: (1) the express negligence doctrine and (2) the conspicuousness requirement. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement provides that the releasing language must be conspicuously written, such that a reasonable person would have noticed it. See Dresser, 853 S.W.2d at 511. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself. See Reyes, 134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997)); Dresser, 853 S.W.2d at 511.
Compliance with [*5] the fair notice requirements is a question of law for the Court. Dresser, 853 S.W.2d at 509. A release that fails to satisfy both of the two requirements is unenforceable as a matter of law. Storage & Processors, 134 S.W.3d at 192. In this case, the Court concludes that the Release asserted by Defendant does not satisfy either requirement.
The Release provides that the signer “hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” See Release, Exh. 1 to Release Motion. As an initial matter, the Release purports to release Defendant from liability for injury suffered while participating in any “Activity.” The “Activity” is to be identified by filling in a blank line on the Release form. On the Release at issue in this case, the “Activity” line contains no identified activity but, instead, has “Cynthia Perez” written in as the “Activity.”
More importantly, the Release language does not specifically state that Defendant is being released from liability for its own future negligence. Indeed, there is no express mention of negligence at all. Although there is no requirement that [*6] the release contain the specific word “negligence,” the intent to release a party from liability for its own negligence must be clearly expressed. See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 290 (Tex. App. — Beaumont 2005, review denied). In the Release at issue in this case, there is no clear expression of an intent to release Defendant from its own negligence in connection with Christopher Galvan’s participation in zip-lining.
The Release fails also to satisfy the conspicuousness requirement. The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
The Court concludes that the Release in this case does not satisfy the express negligence or conspicuousness requirements and, as a result, the Release is not enforceable as a matter of law.
IV.CHARITABLE IMMUNITY MOTION
The Charitable Immunity Act limits liability of a qualified charitable organization to $500,000.00 per person and [*7] $1,000,000.00 per occurrence. See Tex. Civ. Prac. & Rem. Code § 84.006. To qualify for the limitation, the charitable organization must have liability insurance coverage “in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury . . ..” See Tex. Civ. Prac. & Rem. Code § 84.007(g). The Charitable Immunity Act provides that the liability insurance coverage “may be provided under a contract of insurance or other plan of insurance authorized by statute and may be satisfied by the purchase of a $1,000,000 bodily injury and property damage combined single limit policy.” See id.
Defendant asserts that it is entitled to the damages limitation of the Charitable Immunity Act. It is undisputed that Defendant has over $35,000,000.00 of insurance coverage. It is also undisputed, however, that the first $500,000.00 is in the form of a self-insurance retention and the next $4,500,000.00 is in the form of The Salvation Army’s Risk Trust. Plaintiffs argue that Defendant is not entitled to the damages limitation because Defendant is self-insured and self insurance does not meet the statutory requirement of the Charitable Immunity Act. 1
1 Plaintiffs [*8] also argue that Defendant is judicially estopped to assert the Charitable Immunity Act’s limitation because a different Salvation Army entity in Maine asserted in a lawsuit in 1997 that the Salvation Army entity in Maine did not have insurance coverage. The Court concludes on this limited record that Plaintiffs have not established an adequate factual basis for judicial estoppel to apply.
Plaintiffs in this case have not alleged an amount of damages. They allege that the amount in controversy is in excess of $75,000.00. See Amended Complaint [Doc. # 16], ¶ 1. Plaintiffs allege also that Christopher Galvan’s medical bills exceed $200,000.00. See id., ¶ 5. Thus, on this record, the specific amounts alleged by Plaintiffs do not exceed the Charitable Immunity Act’s limitation. Moreover, the amount of damages has not been established by either settlement or a jury award to be in excess of the Charitable Immunity Act’s limitation. As a result, the Court concludes that a decision on whether the limitation applies to a fully-funded self insurance retention is premature at this stage of the proceedings. See, e.g., Morgan v. Fellini’s Pizza, Inc., 64 F. Supp. 2d 1304, 1316, n.6 (N.D. Ga. 1999) [*9] (noting that a request for summary judgment as to whether a damages cap applies was premature); Rafferty v. Howard, 2010 U.S. Dist. LEXIS 98423, 2010 WL 3768142, *1 (S.D. Miss. Sept. 20, 2010) (holding that preliminary ruling on whether statutory cap applies was premature). If there is a settlement or jury verdict for more than $1,000,000.00 in this case, the Court will at that time decide whether Defendant qualifies for the Charitable Immunity Act’s limitation.
Additionally, the Charitable Immunity Act provides that its limitations do not apply “to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” See Tex. Civ. Prac. & Rem. Code § 84.007(a). Plaintiffs specifically allege that Defendant’s actions in this case were “intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of Christopher Galvan and others.” See Amended Complaint [Doc. # 16], ¶ 12. Should the jury find that Defendant’s actions were as alleged by Plaintiffs in paragraph 12 of the Amended Complaint, the issue regarding whether self-insurance satisfies the insurance requirement of the Charitable Immunity Act [*10] would become moot.
V.CONCLUSION AND ORDER
The release relied upon by Defendant satisfies neither the express negligence doctrine nor the conspicuousness requirement. As a result, there has been no effective release of Defendant for its alleged negligence in this case. Plaintiffs have not alleged an amount of damages and no amount of damages has been determined either through settlement or by jury verdict. As a result, it is premature to decide whether the Act limits the amount of damages recoverable in this case. It is, therefore,
ORDERED that Plaintiffs’ Release Motion [Doc. # 23] is GRANTED and Plaintiffs’ Charitable Immunity Motion [Doc. # 26] is DENIED WITHOUT PREJUDICE as premature.
SIGNED at Houston, Texas this 3rd day of May, 2011.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
Poorly written release gave the plaintiffs the only chance they had to win
Posted: November 14, 2011 Filed under: Climbing Wall, Michigan | Tags: Climbing, Climbing Wall, Gross negligence, Lawsuit, Michigan, Negligence, Release, Summary judgment Leave a commentLucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066
A release should be written to stop litigation, not encourage it.
Wood climbing wall at a camp in Wisconsin,USA (Photo credit: Wikipedia)
In Lucas v. Norton Pines Athletic Club, Inc. the lawsuit stems from the plaintiff falling from the climbing wall in the club. The club was using auto-belay systems, which worked. However, the plaintiff failed to clip into the carabiner on the auto-belay.
When the plaintiff joined the athletic club, he signed a release titled Participant Release of Liability and Assumption of Risk Agreement. To climb on the climbing wall, he had to sign a second release titled Climbing Wall Release of Liability.
The first release, the general club release had a clause that stated release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic Club or its officers, agents, or employees.”
The defendant filed a motion for summary judgment based on the releases. The court granted the motion for summary judgment. The plaintiff appealed. The only issue was whether the actions of the defendant were willful or wanton negligence.
The factual issue giving rise to the willful and wanton claim was the club had rules on how to use the climbing wall. The rules required that a member of the club had to have an employee of the club clip them and out of the carabiner before and after climbing.
The plaintiff was an accomplished climber and had developed a routine where he would look at the employee on duty who would visually inspect the carabiner connection to his harness and not physical inspect it.
The plaintiff on this climb did not check with the employee and climbed. Approximately, 20’ up the wall he fell to the ground.
So?
Under Michigan’s law, a release stops claims for ordinary negligence but not for gross negligence. Willful and wanton negligence is the same as gross negligence under Michigan’s law. See Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident, Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter and Gross Negligence beats a release…but after the trial.
Willful or wanton negligence under Michigan’s law is “if the conduct alleged shows an intent to harm or if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.”
One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.”
Because the plaintiff’s only pleaded general negligence and reckless misconduct, the release stopped the claims. On top of that, there was no evidence that the club employee acted intentional or affirmatively, only negligently.
So Now What?
There were two major mistakes in this case that in another state or even another judge could have gone the wrong way.
First never tell the person signing your release how to sue you. You want the release to say to everyone who signs it, that you cannot be sued. If you tell them in the release, the release is not good against X, Y and Z, the claims of the plaintiff will be pled to show you did X, Y and Z. Why not, the plaintiff has nothing to lose. But, for the education you provided in the release, you would not have been sued.
Second if you make rules, they cannot be ignored. More so, when the rules you make are tied to your release. Here, the rule was that employees have to clip people in. If you make a rule, and you do not follow it, you set yourself up for a lawsuit.
Releases work if you do not do something that voids them. Always make sure when you have your release written that everything makes sense and does not create a situation where you can void your own release.
What do you think? Leave a comment.
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Lucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066
Posted: November 14, 2011 Filed under: Climbing Wall, Legal Case, Michigan | Tags: Climbing Wall, Litigation, Release Leave a commentLucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066
Clinton Lucas and Robyn Lucas, Plaintiffs-Appellants, v Norton Pines Athletic Club, Inc., and David Swinburne, Defendants-Appellees.
No. 289685
Court of Appeals of Michigan
2010 Mich. App. LEXIS 1066
June 10, 2010, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1]
Muskegon Circuit Court. LC No. 08-45745-NO.
CORE TERMS: misconduct, reckless, climbing, eye contact, recreational activity, climber, ordinary negligence, climb, auto-belay, protocol, harness, general negligence, wilful, posted, rock, assumption of risk, wanton negligence, negligence claims, citation omitted, co-participant, coparticipant, indifference, recklessness, casts, Climbing Wall Rules, acknowledgement, initiating, routine, tether, staff
JUDGES: Before: OWENS, P.J., and O’CONNELL and TALBOT, JJ.
OPINION
PER CURIAM.
Plaintiffs appeal as of right from the grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(7). We affirm.
This appeal arises from an accident that occurred at defendant Norton Pines Athletic Club (hereinafter “the Club”). Plaintiff Clinton Lucas (hereinafter “plaintiff”) suffered injuries after falling approximately 20 feet from the Club’s indoor rock climbing wall. At the time of the accident David Swinburne, an employee of the club, was monitoring the climbing wall.
When initiating their membership with the Club, plaintiffs executed a Participant Release of Liability and Assumption of Risk Agreement that provided, in relevant part, for a “release and . . . discharge” of the Club and its employees from any claims of injury “which may occur from any cause during such participation and/or use of the facilities.” The Release also included a specific acknowledgement that the member assumed the risk of participation in activities at the Club. However, the Release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic [*2] Club or its officers, agents, or employees.” In addition before engaging in climbing of the rock wall, each member of the Club was required to execute a Climbing Wall Release of Liability, which also included an acknowledgement regarding the assumption of risk of the member in participating in this activity and discharged the Club and its employees “from any and all claims, demands, actions, or causes of action on account of injury or death to myself . . . which may occur from any cause during such participation and/or use of the facilities.” The Club also posted Climbing Wall Rules and Regulations, which required each member climbing the rock wall to wear a harness that must be attached with metal carabiners to tethers that descend from an auto-belay, or safety mechanism, which are secured to the wall. A climber’s release of his or her grip from the climbing wall engages the auto-belay mechanism, which serves to lower the climber in a slow and safe manner to the ground. The Club’s posted Climbing Wall Rules require that “[o]nly a Norton Pines staff member is allowed to hook and unhook climber to and from the belay,” and “[o]nly a Norton Pines staff is allowed to check the safety of [*3] equipment after it is put on.”
Plaintiff was an experienced climber and had developed a routine or practice with Swinburne that would permit plaintiff to secure his own clip onto the harness and ascend the wall after making eye contact with Swinburne to visually verify that plaintiff’s harness was properly attached to the auto-belay system. On the day of plaintiff’s fall, he and Swinburne had followed this routine a number of times. However, on his last climb, plaintiff ascended the wall without clipping the harness to the auto-belay system or making eye contact with Swinburne to indicate that he was initiating his climb. Swinburne was in the vicinity, but reading a magazine when plaintiff commenced his climb. Plaintiff lost his grip on the wall and, without attachment to the safety mechanism, fell approximately 20 feet to the ground, incurring injuries.
Plaintiffs filed suit against both Swinburne and the Club alleging several counts of general negligence and reckless misconduct. Defendants sought summary disposition, pursuant to MCR 2.116(C)(7) and (C)(8), arguing there was no genuine issue of material fact based on plaintiff’s assumption of risk and the execution of valid releases [*4] and waivers. The trial court initially granted summary disposition only on plaintiffs’ general negligence claims and denied defendants’ request for the dismissal of plaintiffs’ reckless misconduct claim. On reconsideration the trial court subsequently dismissed plaintiffs’ reckless misconduct claim and this appeal ensued.
Initially, we note that the various waivers and releases signed by plaintiffs precluded his claims of ordinary negligence. Specifically, “A contractual waiver of liability also serves to insulate against ordinary negligence, but not gross negligence.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003), citing Lamp v Reynolds, 249 Mich App 591, 594; 645 NW2d 311 (2002). Notably, the various releases signed by plaintiffs indicate a waiver of liability for general negligence but not “willful or wanton negligence” or misconduct, which is defined in case law as being established “if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.” Xu, 257 Mich App at 269 n 3 (citation omitted).
Plaintiffs have pleaded only general negligence and reckless misconduct. On appeal, [*5] plaintiffs do not challenge the dismissal of their general negligence claims but assert error in the trial court’s grant of summary disposition on their claim of reckless misconduct. Plaintiffs contend that the trial court erred in limiting their claim of reckless misconduct only to injuries caused by a “co-participant” in a recreational activity rather than applying this standard to encompass all recreational activities as implied in Ritchie-Gamester v City of Berkley, 461 Mich 73, 89 n 9; 597 NW2d 517 (1999), which provided:
We recognize that we have stated this standard broadly as applying to all “recreational activities.” However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, so that we might carefully consider the application of the recklessness standard in various factual contexts.
Contrary to plaintiffs’ position, the Court’s ruling in Ritchie-Gamester was very specific, stating in relevant part:
[W]e conclude that coparticipants in a recreational activity owe each other a duty not to act recklessly. Because the trial court properly concluded that plaintiff could not show that defendant violated this standard, summary disposition [*6] was proper. [Id. at 95 (emphasis added).]
Based on the factual circumstances of this case, there is no basis to assert reckless misconduct as a basis for imposition of liability as Swinburne is merely the employee of a venue housing a recreational activity and not a coparticipant. Accordingly, the trial court correctly found that the case at hand is not analogous to Ritchie-Gamester and properly dismissed plaintiffs’ claim of reckless misconduct.
Further, even if Swinburne could be construed as a co-participant, his failure to act does not rise to the level of reckless misconduct, which is defined as:
“One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the wilful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether [*7] it does so or not.” [Behar v Fox, 249 Mich App 314, 319; 642 NW2d 426 (2002) (citations omitted).]
There was no evidence presented of any affirmative or assertive behaviors by Swinburne to support an assertion of reckless conduct. At most, Swinburne was negligent because he was inattentive to plaintiff’s activity at the initiation of his climb. Swinburne’s complicit participation with plaintiff in ignoring the rules and regulations for the rock-climbing wall could only be construed as ordinary negligence based on their having established a mechanism or procedure to assure plaintiff’s safety while climbing. While the procedure followed deviated from the Club’s policy it does not evidence a level of willfulness or indifference necessary to establish reckless misconduct.
Plaintiffs also contend that the trial court erred by making findings of fact and failing to construe the evidence most favorably to the party opposing summary disposition. A trial court may not make findings of fact or weigh credibility in deciding a motion for summary disposition, and all reasonable inferences must be drawn in favor of the nonmovant. Amerisure Ins Co v Plumb, 282 Mich App 417, 431; 766 NW2d 878 (2009). [*8] Defendants sought summary disposition in accordance with MCR 2.116(C)(7). In deciding a motion based on that sub-rule, a trial court may consider “affidavits, depositions, admissions, or other documentary evidence” that would be admissible at trial. MCR 2.116(G)(2); Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008).
Specifically, plaintiffs argue that the trial court erroneously found, as an undisputed fact, that plaintiff and Swinburne had adopted an “eye contact protocol” and that reasonable minds could not conclude that Swinburne’s behavior had exceeded ordinary negligence. According to plaintiffs, acceptance of the use of an “eye contact protocol” is contrary to the facts established by the record based on the Club having established and posted a formal procedure for securing climbers in its “Climbing Wall Rules & Regulations” coupled with Swinburne’s acknowledgment that this policy was mandatory and that he lacked the authority to override or ignore that policy.
Swinburne and plaintiff both admitted that the procedure they had adopted using eye contact was a deviation from the Club’s written rules. However, Swinburne and plaintiff also testified that they believed the “eye [*9] contact protocol” was appropriate due to plaintiff’s climbing experience and because it achieved the intended goal of verifying that plaintiff was properly attached to the tether. The trial court properly considered this evidence and construed it in a light most favorable to plaintiff. The only reasonable construction of the evidence was that Swinburne and plaintiff had developed their own protocol to insure that plaintiff was securely attached to the safety mechanism, albeit contrary to the Club’s rules and regulations. This did not comprise improper fact-finding by the trial court.
Affirmed.
/s/ Donald S. Owens
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
Forgetting your beacon is manslaughter in Europe….if you wife dies in an Avalanche
Posted: November 9, 2011 Filed under: Avalanche Leave a commentVerdict confuses everyone
In what many are calling a crazy decision, a man has been found guilty of manslaughter and sentenced to three months of prison, suspended for allowing his wife to ski without an avalanche beacon.
Both were experienced skiers, he more than her. He triggered a slab avalanche which buried he.
The slide occurred on a 35° slope the risk was given as Considerable (3/5). The lack of beacon seriously delayed finding the victim even when rescue services arrived on the scene. The 58 year old woman had suffered from serious head injuries after being buried over a meter in dense snow.
Because the woman was not wearing a beacon the rescue took a considerable amount of time.
The deicison has left many people very confused in Austria.
Michael Larcher, director of education of the Austrian Alpine Association has questioned the verdict. He points out that although the woman was less experienced than her husband they had been touring together for years, “she was no beginner but had enough personal knowledge to know to turn on her beacon. Given that the lack of beacon was the main reason for the verdict, in my opinion, you cannot put all the responsibility on the husband, it is an issue of personal responsibility”
Estolf Müller, representing the Austrian Mountain Rescue Service said that “judging who is experienced is legally very difficult, I’m really sceptical when the courts intervene in a private sport so long as innocent bystanders are not endangered. When you go into the backcountry everyone has to be responsible for themselves.”
So?
The man in this case may also be facing a civil suit by the family on top of losing his wife. Personally, I think this is a little extreme. However it points out the differences between the United States and Europe.
Most European countries are based on a criminal system to enforce the standards of care. If you do not take care of someone you face jail time.
In the US we rely on a civil litigation system. If you do not take care of someone you face a lawsuit. Only in extreme cases where your actions are so bad or intentional can you face losing your freedom in the US. I show it visually this way.
The Red Column is the amount of proof needed to convict in a Criminal Case. The Blue Column is the amount of proof needed to win a civil case.
The US is based on a system that personal freedom is important and society, not the government should decide when someone has injured another. In Europe, the government is in charge of deciding the wrongs and rights of all of society.
For articles about this see Another Litigation versus Criminal example and Litigation v. Jail Time.
To see the article go to 3 months suspended sentence for forgetting beacon
What do you think? Leave a comment.
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It’s Snowing! Register for the 2012 SIA Snow Show and On-Snow Demo
Posted: November 8, 2011 Filed under: Skiing / Snow Boarding Leave a comment
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Bonne, et al., v. Premier Athletics, LLC, et al., 2006 U.S. Dist. LEXIS 77802
Posted: November 7, 2011 Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Sports, Tennessee | Tags: Gymnastics, Jurisdiction, Minor, Release, Top Flight T&T Boosters, Trampline, USA Gymnastics, Venue Leave a commentBonne, et al., v. Premier Athletics, LLC, et al., 2006 U.S. Dist. LEXIS 77802
Matthew R. Bonne, et al., Plaintiffs, v. Premier Athletics, LLC, et al., Defendants.
No. 3:04-CV-440
United States District Court for the Eastern District of Tennessee
2006 U.S. Dist. LEXIS 77802
October 23, 2006, Filed
SUBSEQUENT HISTORY: Motion granted by, in part, Motion denied by, in part Bonne v. Premier Ath., 2007 U.S. Dist. LEXIS 79956 (E.D. Tenn., Oct. 29, 2007)
CORE TERMS: gymnastic, summary judgment, sanctioned, wrongful death, membership, athlete, guardian, trampoline, booster, choice of law, significant relationship, decedent’s, sibling, place of business, moving party, non-moving, competed, death action, reckless conduct, exculpatory clause, gross negligence, surviving spouse, superior right, deceased, spotters, matting, registration form, paralysis, sponsor, host
COUNSEL: [*1] For Matthew R Bonne, Individually next friend Jordan T Bonne, Shirley K Bonne, Individually, next friend, Jordan T Bonne, next friend, Aaron Bonne, next friend, Brooke Bonne, next friend Trey Bonne, next friend, Andrew Bonne, Plaintiff: Stephen E Yeager, Lowe & Yeager, Knoxville, TN.
For Premier Athletics, LLC, doing business as, Premier Gymnastics and Tumbling Center, Defendant: John W Baker, Jr, Baker, O’Kane, Atkins & Thompson, Knoxville, TN.
For USA Gymnastics, United States Gymnastics Federation, Defendant: Samuel W Rutherford, Stokes & Rutherford, Knoxville, TN.
JUDGES: Thomas W. Phillips, United States District Judge.
OPINION BY: Thomas W. Phillips
OPINION
MEMORANDUM AND ORDER
This a wrongful death case involving parties with diversity under 28 U.S.C. § 1332. Defendants, Premier Athletics, LLC, USA Gymnastics and United States Gymnastics Federation, have moved for summary judgment as to plaintiffs’ claims. The parties have filed extensive briefs pertaining to the motion for summary judgment in which they have fully briefed all of the issues and submitted record evidence in support of the parties’ positions. The court has reviewed the briefs and [*2] evidence submitted, and does not feel that oral argument is necessary. For the reasons which follow, the motion will be granted as to the claims of Aaron Bonne, Brooke Bonne, Trey Bonne, and Andrew Bonne. In all other respects, the motion will be denied.
Background
This case involves a tragic accident that occurred on January 17, 2004, during the John Macready Flip Fest Invitational in Knoxville, Tennessee. The plaintiffs’ son, Jordan Bonne, was competing in a trampoline event when he fell off the trampoline, hitting his head on the concrete floor. Jordan died from his injuries two days later.
Defendant, Premier Athletics, was the host organization, sponsor and facilitator of the event, which was sanctioned by USA Gymnastics (USAG). Defendants USAG and the United States Gymnastics Federation (USGF) are the national governing bodies for the sport of gymnastics in the United States. Their principal place of business is in Indiana but they sanction gymnastic events all over the United States. At the time of the accident, Jordan was classified as a junior elite trampolinist according to USAG. Junior elite is the second highest classification in USAG sanctioned competition. [*3] Jordan had competed in numerous local, state and national competitions, and had recently competed internationally in his age group. Jordan competed in both the synchronized and individual trampoline events. The day before the accident, Jordan had competed in synchronized trampoline competition at Flip Fest.
Jordan was a member of the Top Flight Gymnastics Team. Jordan was also a member of USAG. In order for a gymnast to compete in a USAG sanctioned event, USAG requires all participants to be a member of USAG. For membership, USAG requires athletes to complete an “Athlete Member Application” every year. Membership is required to compete in USAG sanctioned events. Section Five of the membership application directs parents to read the reverse side of the application. Paragraph 3 of Section 5 includes the following language:
WAIVER AND RELEASE. I am fully aware of and appreciate the risks, including the risk of catastrophic injury, paralysis, and even death, as well as other damages and losses associated with participation in a gymnastics event. I further agree that USA Gymnastics, the host organization, and sponsor(s) of any USA Gymnastics sanctioned event, along with the [*4] employees, agents, officers and directors of the organization, shall not be liable for any losses or damages occurred as a result of my participation in the event, except for such loss or damage as the result of the intentional or reckless conduct of one of the organizations or individuals identified above.
Section 6 of the Athlete Member Application provides as follows:
All signatures required for acceptance of membership . . .
Required for any athlete who is not yet eighteen years old: As legal parent or guardian of this athlete, I hereby verify by my signature below, that I fully understand and accept each of the conditions listed in the Athlete Membership Agreement as described in Section Five for permitting my child to participate in any USA Gymnastics sanctioned event.
This 2004 membership application was signed by Jordan’s mother, Shirley Bonne in December 2003. Mrs. Bonne stated that she most likely signed the document in Kentucky as it was her habit to do so. In previous years, Shirley Bonne had signed similar forms containing the same waiver and release language. Jordan had also signed forms with identical waiver and release language in the past.
[*5] Top Flight Gymnastics had a similar waiver and release in its registration form. The Top Flight Gymnastics registration form provided:
As legal guardian of Jordan Bonne, I hereby consent to the above person’s participation in Top Flight Gymnastics’ programs, I recognize that potentially severe injuries, including permanent paralysis or death can occur in any activity involving height or motion, including gymnastics and related activities, including tumbling and trampoline.
I understand that it is the express intent of Top Flight Gymnastics to provide for the safety and protection of my child, and, in consideration for allowing my child to use these facilities, I hereby forever release Top Flight Gymnastics, its officers, employees, teachers, and coaches, from all liability for any and all damages and injuries suffered by my child while under the instruction, supervision, or control of Top Flight Gymnastics or its employees.
. . .
This acknowledgment of risk and waiver of liability, having been read thoroughly and understood completely, is signed voluntarily as to its content and intent.
This waiver and release was signed by Shirley Bonne on January 7, 1999.
[*6] Top Flight T&T, a booster club that supported Top Flight Gymnastics required a similar waiver and release for athletes who participated in its programs. This waiver and release stated:
As legal guardian of Jordan Bonne, I hereby consent to the above person’s participation in Top Flight’s T&T Boosters programs. I recognize that potentially severe injuries, including permanent paralysis or death can occur in any activity involving height or motion, including tumbling and trampoline.
I understand that it is the express intent of Top Flight T&T Boosters to provide for the safety and protection of my child, and, in consideration for allowing my child to use these facilities, I hereby forever release the Top Flight T&T Boosters, its officers, employees, teachers and coaches from all liability for any and all damages and injuries sustained by my child while under the instruction, supervision, or control of Top Flight T&T Boosters or its employees.
. . .
This acknowledgment of risk and waiver of liability, having been read thoroughly and understood completely, is signed voluntarily as to its content and intent.
Matthew Bonne, Jordan’s father, had also signed similar [*7] waiver and release forms for Jordan. He testified via deposition that he “probably” signed the Top Flight Registration Form. He acknowledged that he signed the booster club form. In the case of both these forms, he stated that he did not recall whether he read them before signing. Matthew Bonne traveled with his son on several occasions to different gymnastics events, including one that was held in Russia. He also attended several of Jordan’s practices.
As a result of the accident at Flip Fest on January 19, 2004, plaintiffs filed the instant action for the wrongful death of Jordan. The plaintiffs are residents of Ohio. In their complaint, Matthew and Shirley Bonne, individually and as next friends, parents and natural guardians of Jordan, sued Premier, USAG and USGF. Further, the Bonnes, as next friends, parents and guardians of Aaron Bonne, Brooke Bonne, Trey Bonne and Andrew Bonne (Jordan’s siblings) sued defendants contending that USAG and USGF were negligent in that they sanctioned an event which failed to provide a safe environment, utilized untrained spotters, failed to ensure sufficient floor matting, failed to require experienced and trained spotters, and failed to require [*8] sufficient safety matting. As a result of defendants’ alleged negligence, plaintiffs seek damages including parental and sibling consortium, expenses, and the pecuniary value of Jordan’s life.
Defendants USAG and USGF have moved for summary judgment asserting that the releases signed by Shirley and Matthew Bonne bar all claims against defendants. The releases exclude USAG and USGF from any liability resulting from injuries occurring in sanctioned events. As the host organization, sponsor and facilitator of the Flip Fest event, Premier is also expressly excluded from liability.
Analysis
Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1987); [*9] White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 lvy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the non-moving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); White, 909 F.2d at 943-44. The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).
Choice of Law
Defendants argue that Ohio law should apply to the interpretation of the USAG membership application which contains an exculpatory clause. Plaintiffs, on the other hand, argue that Tennessee [*10] law is the correct choice of law to apply to determine the rights and liabilities of the parties. Plaintiffs further argue that Tennessee public policy prohibits the enforcement of exculpatory clauses by parents on behalf of their minor children and thus, the USAG waiver is void in this case.
The plaintiffs reside in Ohio. Defendants’ motion for summary judgment states that Mrs. Bonne completed and signed Jordan’s USAG member application in Ohio. However, Mrs. Bonne stated in her affidavit, that she most likely signed the application in Kentucky, where the Top Flight gym is located. The application was sent to and received by USAG in Indiana.
A federal court in a diversity case applies the law of the state in which the court sits, including the state’s choice of law rules. Davis v. Sears, Roebuck and Co., 873 F.2d 888, 892 (6th cir. 1989)(citing Erie R.R.Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). It is not clear from the defendants’ motion whether they dispute that plaintiffs’ tort claims are to be analyzed under applicable Tennessee law. However, they do dispute whether Indiana, Kentucky, Ohio, or Tennessee law governs the analysis of the release and [*11] waiver provisions at issue. Defendants assert in their motion that this is a contract dispute which should be analyzed under Tennessee’s choice of law rules related to contract claims. The court disagrees. This is a wrongful death action based upon tort, not contract. As regards the effect of the waiver and release between the parties, it will be determined by the law that governs the substantive tort rights of the parties.
The Tennessee Supreme Court in Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992), adopted the “most significant relationship” approach of the Restatement (Second) of Conflict of Laws, § 175, to determine the rights and liabilities of the parties in a wrongful death case. Section 175 provides:
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, to which event the local law of the other state will be applied.
The accident causing Jordan’s [*12] death occurred at the Flip Fest in Knoxville, Tennessee. Thus, under the “most significant relationship” test, Tennessee law applies unless another state has a more significant relationship. To determine if another state has a more significant relationship, § 145 of the Restatement provides factors to be weighed and balanced. Those factors are (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship, if any, between the parties is centered.
Applying this test to the instant case, as stated above, Tennessee is where the injury and death occurred. Second, Tennessee is the place where the conduct causing the injury occurred. Third, the plaintiffs are residents of Ohio, USAG and USGF have their principal place of business in Indiana, but they sanction gymnastic events all over the United States. Premier is a Tennessee limited liability company with its principal place of business in Knoxville, Tennessee. Last, the relationship between the parties was centered in Tennessee because Jordan’s death occurred [*13] while he was participating in Flip Fest in Knoxville. The Flip Fest competition in Knoxville was the only mutual and central contact these parties had with one another. Therefore, it is clear that Tennessee is the state that has the “most significant relationship” with the parties in this case. Thus, Tennessee choice of law rules dictate that Tennessee tort law applies.
In a tort action, the effect of a release between the parties is determined by the law that governs the substantive tort rights of the parties. Mackey v. Judy’s Foods, Inc., 867 F.2d 325, 328 (6th Cir. 1989)(citing to Restatement (Second) of Conflicts of Laws, § 170, Comment b). As Tennessee law governs the rights and liabilities of the parties in the tort action, Tennessee law will also be applied to interpret the effect of the release and waiver provisions in the USAG application.
Effect of Waiver & Release
In Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989), the Tennessee Court of Appeals noted that “[t]he general rule is that a guardian may not waive the rights of an infant or an incompetent.” Id. at 6 [*14] (citing 39 Am.Jur.2d Guardian & Ward, § 102 (1968); 42 Am.Jur.2d Infants § 152 (1969)). As in Childress, Jordan’s rights could not be contracted away by his mother in the State of Tennessee. It is Tennessee’s stated public policy to protect minors and prohibit exculpatory releases for them. Mrs. Bonne could not execute a valid release or exculpatory clause as to the rights of her son against USAG, or anyone else, and to the extent the parties to the release attempted and intended to so do, the release is void.
Moreover, exculpatory clauses purporting to contract against liability for intentional conduct, recklessness or gross negligence are unenforceable. See Childress, 777 S.W.2d at 5; Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985). Plaintiffs’ complaint alleges defendants’ failure to provide a safe environment, failure to utilize trained spotters, and failure to ensure sufficient safety matting, all constitute gross negligence and reckless conduct. Defendants have not challenged these allegations in their motion for summary judgment. Thus, accepting plaintiffs’ allegations [*15] as true, the release at issue here would not shield defendants for liability for their gross negligence and reckless conduct. Accordingly, defendants’ motion for summary judgment based on the waiver and release will be denied.
Claims of Jordan’s Siblings
Defendants assert that since both Jordan’s parents are living and are named , as plaintiffs in this actions, no right to sue on Jordan’s behalf has passed to his siblings. Thus, the claims of Aaron Bonne, Brooke Bonne, Trey Bonne and Andrew Bonne, should be dismissed as a matter of law.
The statutes permitting an action for the wrongful death of another create “no right of action existing independently of that which the deceased would have had, had he survived.” Rogers v. Donelson Hermitage Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn.App. 1990); Memphis St. Ry. Co., v. Cooper, 313 S.W.2d 444, 447, 203 Tenn. 425 (1958). Although living beneficiaries of the deceased may seek a limited recovery for their own losses in addition to those of the decedent, see Hill v. City of Germantown, 31 S.W.3d 234, 239 (Tenn. 2000); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 598 (Tenn. 1999), [*16] the right of action itself remains one that is “single, entire and indivisible.” See Wheeler v. Burley, 1997 Tenn. App. LEXIS 578, No. 01A01-9701-CV-00006 (Tenn.App. Aug. 27, 1997). Therefore, “there can be but one cause of action for the wrongful death of another.” Matthews v. Mitchell, 705 S.W.2d 657, 660 (Tenn.App. 1985).
Because multiple actions may not be brought to resolve a single wrongful death claim, the statutes carefully prescribe the priority of those who may assert the action on behalf of the decedent and any other beneficiaries. In a dispute between the surviving spouse and the children of the decedent as to who may maintain the action, the surviving spouse clearly has “the prior and superior right above all others.” Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn.App. 1991); see also Tenn. Code Ann. § 20-5-107. In fact, the children of a deceased may maintain an action only if the decedent is not survived by a spouse or if the surviving spouse has waived his or her right of priority. Id. Applying Tennessee law to the instant case, the court finds that Jordan’s parents have a superior right, as opposed to Jordan’s siblings, [*17] to maintain this cause of action against defendants for the wrongful death of Jordan.
Recognizing that a claim for loss of consortium does not represent a claim for damages separate from the wrongful death action itself, but rather embodies one component of the decedent’s pecuniary value of life, the Tennessee Supreme Court has held that a trial court should dismiss any other pending wrongful death actions upon proper filing of an action by party holding a superior right. See Kline v. Eyrich, 69 S.W.3d 197, 208 (Tenn. 2002). Accordingly, because Jordan’s parents have the superior right to maintain this action, the court will dismiss the claims of Aaron Bonne, Brooke Bonne, Trey Bonne, and Andrew Bonne.
Conclusion
For the reasons stated above, defendants’ joint motion for summary judgment [Doc. 16] is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to the claims of Aaron Bonne, Brooke Bonne, Trey Bonne, and Andrew Bonne. In all other respects, the motion is DENIED. The parties will prepare the case for trial.
The parties motions for oral argument on the summary judgment motion [Docs. 28, 33] are DENIED.
ENTER:
[*18] s/ Thomas W. Phillips
United States District Judge
“WAKE UP BRECK” JUMP STARTS THE 50th ANNIVERSARY SKI SEASON THURSDAY, NOVEMBER 10, 2011 AT BRECKENRIDGE COFFEE SHOPS
Posted: November 6, 2011 Filed under: Ski Area Leave a commentFree Coffee!
Breckenridge’s 50th Anniversary Season Starts 11/11/11
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2012 Cycling Race Calendar Finalized
Posted: November 5, 2011 Filed under: Cycling Leave a commentThe 2012 USA Cycling Racing Calendar is out.
March 22-25: Redlands Bicycle Classic (2.2), Redlands, CA – men and women
April 26-29: Joe Martin Stage Race p/b Nature Valley (2.3), Fayetteville, AR – men and women
May 2-6: SRAM Tour of the Gila (2.2), Silver City, NM – men and women
June 3: Liberty Classic (1.HC) – Philadelphia, PA – women
June 13-17: Nature Valley Grand Prix (2.1), MN – men and women
July 17-22: Cascade Classic Stage Race (2.2), Bend, OR – men and women
Aug. 3-5: Tour of Elk Grove (2.3), IL – women only
Aug. 21-23: Aspen/Snowmass Pro Women’s Race (2.5.2), Aspen, CO – women only
Sept. 15: Univest Grand Prix (1.HC), Souderton, PA – men only
2012 National Criterium Calendar
March 31: Cigar City Brewing Criterium (1.4), Tampa, FL – men only
April 14: Presbyterian Hospital Invitational Criterium (1.1), Charlotte, NC – men and women
April 21: Sunny King Criterium (1.3), Anniston, AL – men and women
May 4-6: USA CRITS Speedweek (2.5.2), SC and GA – men and women
May 6: Dana Point Grand Prix of Cycling (1.2), Dana Point, CA – men only
May 12: Tour de Grove (1.2), St. Louis, MO – men and women
May 19: Wilmington Grand Prix (1.3), Wilmington, DE – men and women
May 28: Tour of Somerville (1.2), Somerville, NJ – men only
May 31: Base Camp International p/b Verizon Wireless (1.3), Basking Ridge, NJ – men only
June 2: Glencoe Grand Prix (1.3), Glencoe, IL – men and women
June 8-10: Saint Francis Tulsa Tough (2.5.1), Tulsa, OK – men and women
June 9-10: Air Force Cycling Classic (2.5.1), Arlington, VA – men and women
June 17: Harlem Skyscraper Criterium (1.4), Manhattan, NY – men only
June 28-July 1: Tour of America’s Dairyland (2.5.2), WI – men and women
July 8: Manhattan Beach Grand Prix (1.2), Manhattan Beach, CA – men only
July 14: Exergy Twilight Criterium (1.2), Boise, ID – men and women
July 28: Herman Miller Grand Cycling Classic (1.2), Grand Rapids, MI – women only
Aug. 25-26: Chris Thater Memorial (1.2), Binghampton, NY – men and women
Sept. 23: TD Bank Mayors Cup (1.4), Boston, MA – men and women
To see more information about the races go to: USA Cycling reveals 2012 racing calendars. The Criterium calendar and information can be found at: USA Cycling adds criterium calendar.
The information on the USA Cycling site can be found at: National Racing Calendar (NRC) and 2012 Nat’l Racing Calendar, Nat’l Criterium Calendar unveiled.
What do you think? Leave a comment.
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Get pedaling: It’s a political ad, but it has a lot of truth in it!
Posted: November 4, 2011 Filed under: Cycling Leave a comment
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James,
My favorite memory from the summer was — hands down — Colorado hosting the USA Pro Challenge.
It was a wonderful event that attracted the best cyclists in the world to altitudes many had never been before. For seven days, the pro riders crisscrossed Colorado’s beautiful landscapes as hundreds of thousands of tourists and fans watched from the roadside.
The race was a marvel of human endurance and sheer athleticism. None of the stages were easy — something I learned firsthand when the race organizers let me ride the time trial course in Vail.
 Truth be told, my pace was somewhere between the speed of eventual stage winner Levi Leipheimer (ahem) and….well… a giraffe on roller-skates. But for a guy who is more at home on a scooter, it was pretty cool.
All that aside, attracting world-class events like the USA Pro Challenge brings national exposure to our cities and towns, boosts our economy, and shows the rest of the country what a wonderful place Colorado is to live, work, and play.
In fact, the race pumped over $83 million into Colorado’s economy and was a huge boon for our small towns along the race route.
We need more of that.
As more people see what a great place Colorado is, they are going to visit more and bring new business here. In fact, we’ve already had success doing just that. In the last month, Colorado has become the home to both GE Solar and Arrow Electronics, two companies that will put thousands of Coloradans to work.
And it’s no accident either.
Making Colorado competitive has been a goal of ours since the very early days of our small but mighty campaign. It’s why we developed the Colorado Blueprint for economic development. The Blueprint represents the insights and participation of nearly 10,000 Coloradans in all 64 counties. It’s a “bottom-up” plan that focuses on local and regional collaboration.
It reminds me of what a “peloton” does during a bike race.
A “peloton” is the formal name for a large group of cyclists who band together and ride very close to one another to reduce drag and save energy for later in the race. Individual riders even take turns battling the wind at the front of the pack so the others can rest.
That’s not just a strategy for winning professional bike races. In many ways “collaboration” is the new “competition.” While small business owners may not wear spandex, they know that smart collaboration — just like the peloton — is a winning strategy for economic development.
Our “Bottom-up” plan also establishes measurable guideposts — just like a bike race — so we can track our progress, identify obstacles to job creation (like red tape and inefficient regulation), and identify opportunities to attract new companies and investment in the businesses already here.
While we are on the subject of bike races, we’ve been thinking about taking this experience to the Eastern Plains. How cool would it be to bring the bike enthusiam we saw during the USA Pro Challenge to this part of Colorado? There are great vistas, fewer hills to get over for novice bikers like me, and some of the most hospitable people in America.
We’re still working through all the details, but stay tuned to hear about our idea for a “Pedal on the Plains” ride next year.
Talk to you soon.
Sincerely,
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Paid for by Hickenlooper for Colorado
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USA Cycling to host cyclo-cross race in Colorado Springs
Posted: November 4, 2011 Filed under: Cycling Leave a comment
Avalanche Center Newsletter #01
Posted: November 4, 2011 Filed under: Avalanche, Skiing / Snow Boarding Leave a comment
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Recurring donations: I would like to donate: 100.0050.0020.0010.005.00 every 1234 MonthsWeeksYearsDays 
States that allow a parent to sign away a minor’s right to sue
Posted: November 2, 2011 Filed under: Release (pre-injury contract not to sue), Summer Camp Leave a commentIf your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
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State
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By Statute
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Restrictions
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| Alaska | Alaska: Sec. 09.65.292 | Sec. 05.45.120 does not allow using a release by ski areas for ski injuries |
| Arizona | ARS § 12-553 | Limited to Equine Activities |
| Colorado | C.R.S. §§13-22-107 | Some commentators consider the statute a little weak |
| Florida | Florida Statute § 744.301 (3) | |
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By Case Law
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| California | Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990) | |
| Florida | Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 | Allows a release signed by a parent to require arbitration of the minor’s claims |
| Florida | Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 | Release can be used for volunteer activities and by government entities |
| Massachusetts | Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384 | |
| Minnesota | Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299 | |
| North Dakota | McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 | |
| Ohio | Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) | Maybe only for non-profits |
| Wisconsin | Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 | However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 voided all releases in the state |
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On the Edge, but not enough to really rely on
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| North Carolina | Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 | Ruling is by the Federal District Court and only a preliminary motion |
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
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Facebook Page: Outdoor Recreation & Adventure Travel Law
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$83.5 million brought to Colorado by the USA Pro Challenge!
Posted: October 25, 2011 Filed under: Cycling Leave a commentSure the numbers are always suspect, but it sort of makes Aspens complaining about a $16K loss seem minor.
Inaugural USA Pro Cycling Challenge Results in $83.5 Million Economic Impact to State of Colorado
94% of Spectators Plan to Return in 2012
The inaugural USA Pro Cycling Challenge attracted more than 1 million spectators from around the state, the country and the world, and the Colorado economy was the beneficiary of $83.5 million in economic impact thanks to a successful first-year event, which took place August 22-28 and visited 11 Colorado host communities. As a virtual postcard for the State of Colorado, the race received 25 hours of national television coverage on NBC and Versus, in addition to airing in 161 countries and territories internationally.
“The crowds were big, they were enthusiastic, they spent money in every host city, and just as importantly, they traveled to Colorado especially to see this race,” said Shawn Hunter, CEO and Co-Chairman of the USA Pro Cycling Challenge. “More than 22% of the 1,000,000+ spectators at our race visited us from outside Colorado. And with 94% reporting they will return next year, that’s a tremendous benefit for the State of Colorado in 2011 and in the future.”
The 2011 race attracted spectators from at least 39 states in the nation, and at least 16 other countries. It also proved an unprecedented following among Colorado residents, one of the significant contributing factors to the level of enthusiasm displayed by spectators along the entire 518-mile course.
More than $67 million came in the form of direct spending by traveling spectators. Both those fans from outside the state and Coloradans traveling 50 miles or more to take in an event stage contributed $67.4 million on lodging, food, transportation and entertainment. The remaining economic impact comes in the form of team, staff, sponsor and vendor spending, employment created by the event, and the resulting tax effects of the race.
“We have something here in Colorado that is nearly impossible to duplicate: beautiful scenery, great amenities, and many world-renowned destinations,” said Colorado Governor John Hickenlooper. “Future USA Pro Challenge races will bring even more international attention to Colorado and lock in the state as the place to be in the summer.”
Further analysis points at additional areas of success:
- Spectators made this event a family affair. Party sizes for traveling spectators were large, averaging five+ people per party.
- The average household income of attendees was $113,918.
- Spectators were satisfied with almost all parts of the race and the experience, especially impressive for a first-year event. More than 94% answered good or very good when asked their satisfaction with the race.
- At 94% responding likely or very likely to return next year, the number of people who plan to watch the race again is solid, a good preliminary sign for the event’s future.
- Among out-of-state visitors, 71.6% said the USA Pro Cycling Challenge was the reason for their trip to Colorado.
- Nearly half of spectators in attendance reported themselves as cycling enthusiasts who participate in club rides, attend races and support cycling charities. More than 30% reported they ride a bike for fitness, while roughly one quarter responded they ride a bike occasionally or not at all.
- This was an audience that watches major cycling events on television, and appreciates the world class level of competition at the USA Pro Cycling Challenge. It was also a dedicated audience, with a majority listing the race as a “very important” part of their trip planning.
- Spectators’ experiences with the USA Pro Cycling Challenge positively influence their view of the State of Colorado, and the likelihood of returning to the state in the future. Nearly 85% of out-of-state visitors said they are more likely or much more likely to visit Colorado again based on their experience at the USA Pro Cycling Challenge.
“The numbers speak volumes, but the enthusiasm I saw here in Denver alone really tells the story,” said Michael B. Hancock, Mayor of Denver. “With 2 hours of live television and nearly one quarter million fans coming out to see the race in downtown Denver, this was a tremendous showcase for our true cycling town.”
About the Research Study
The USA Pro Cycling Challenge commissioned IFM, a global sports research firm with 20+ years of cycling experience around the world, to conduct a quantitative research study to measure the overall economic impact of this inaugural cycling event, which took place throughout Colorado from August 22-28, 2011.
IFM designed this study from the outset to address many of the contentious issues surrounding economic impact assessments. Key areas addressed included:
- Substitution effects. Since local fans will often spend similar amounts on local sports, and other, entertainments, IFM did not include the local fan spend in their economic impact report.
- Time shifting. Colorado is an attractive destination for travel, so IFM deliberately filtered respondents to ensure they were not capturing data from spectators already in Colorado, independent of the race, and also used elimination questions to remove those fans who intended to come to Colorado in the near future independent of the USA Pro Cycling Challenge.
- Large, deep sampling procedures. Large samples were taken at all stages, distributed across the race locations.
About the USA Pro Cycling Challenge
For seven consecutive days, 135 of the world’s top athletes raced across 518 miles through the majestic Rockies, reaching higher altitudes than they ever had to endure, more than two miles in elevation. It featured the best of the best in professional cycling, competing on a challenging course through some of America’s most beautiful scenery, including cities such as Aspen, Vail, Breckenridge and Steamboat Springs.
Referred to as “America’s Race” the inaugural USA Pro Cycling Challenge took place August 22-28, 2011. More than 1 million spectators viewed this race from the roadsides along the route while many more watched the race on television in 161 countries and territories, including on NBC and Versus. The USA Pro Cycling Challenge was one of the largest cycling events in United States history.
On the final day, Levi Leipheimer of Team RadioShack was awarded the Quiznos Leader Jersey and crowned the first-ever champion of the USA Pro Cycling Challenge in front of a monumental crowd in downtown Denver. Elia Viviani took the Smashburger Sprint Jersey, Tejay Van Garderen the Sheets Best Young Rider Jersey, Rafael Montiel captured the Nissan King of the Mountain Jersey and the Exergy Most Aggressive Rider Jersey of the final stage went to Timmy Duggan.
The 2012 USA Pro Cycling Challenge, recently upgraded to a 2.HC ranking, the highest registration level short of the World Tour, will take place in Colorado August 20-26, 2012. More information can be found on the website www.USAprocyclingchallenge.comand Twitter page @USAProChallenge.
Besides it was a ton of fun!
What do you think? Leave a comment.
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The very first lawsuit against a ski area
Posted: October 24, 2011 Filed under: Ski Area, Skiing / Snow Boarding Leave a commentWright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Assumption of the Risk or the Doctrine of Volenti Non Fit Injuria as it was known then, won the case for the defendants.
In 1949, the plaintiff was on her second run, on the same run at Mt Mansfield ski resort in Vermont. She allegedly hit a stump hidden by the snow which caused her injuries. She sued the lift company and the land owners for her injuries.
The original defendants were Mt. Mansfield Lift, Inc., Mt. Mansfield Hotel, Inc. and the Stowe-Mansfield Association, Inc. The Stowe-Mansfield Association, Inc. was dismissed from the case because it did not own any land at the ski area. The Stowe-Mansfield Association Inc. owned and operated the lifts. The ski area crossed land owned by several different parties, the Mt. Mansfield Hotel, Inc. and Mt. Mansfield Lift, Inc. The accident occurred on land owned by one or both remaining defendants.
Summary of the case
The court looked at the legal issues of the case. As landowners, the remaining defendant’s duty to the plaintiff, an invitee, was “to advise them of any dangers which reasonable prudence would have seen and corrected.”
However, skiing is a sport and as such one assumes the ordinary risks of the sport, which in this case, include inequalities of the surface. This defense was known then as the doctrine of volenti non fit injuria. Today, we know the defense as assumption of the risk. “The plaintiff then was merely accepting a danger that inheres in the sport of skiing.”
So Now What?
Like the 75 cent lift tickets purchased by the plaintiff, the law and skiing have changed since 1951 when this case was decided.
However, it does point out a few simple issues.
Lawsuits for personal injuries in recreation have been around for sixty years.
Assumption of the risk is a good defense to claims based on the inherent risks of the sport.
What do you think? Leave a comment.
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Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Posted: October 24, 2011 Filed under: Legal Case, Ski Area, Vermont | Tags: Federal Supplement, Mansfield, Mount Mansfield, ski area, skiing, Skiing / Snow Boarding, United States, Vermont, Wright Leave a commentWright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Civ. A. No. 1101
United States District Court for the District of Vermont
96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
April 16, 1951
Counsel: [**1]
Justin G. Cavanaugh and William H. Cooney, Springfield, Mass., for plaintiffs Florine Wright and Robert B. Wright, Jr.
McNamara & Larrow, Burlington, Vt., Frank G. Sterritte, New York City, for defendants Mt. Mansfield Lift, Inc. and Mt. Mansfield Hotel, Inc.
Clifton G. Parker, Morrisville, Vt., for defendant Stowe-Mansfield Ass’n, Inc.
OPINION BY:
GIBSON
OPINION:
This is an action for damages resulting from a skiing accident brought by Florine and Robert B. Wright, Jr., husband and wife, of Springfield, Mass., against the Mt. Mansfield Lift, Inc., Mt. Mansfield Association, Inc. The case was heard on its merits at the February term, 1951, U.S. District Court, District of Vermont. At the conclusion of the plaintiff’s case, each of the three defendants filed a motion for a directed verdict. The motion, in each instance, is hereby granted.
The plaintiff, Mrs. Florine Wright, in her complaint, alleged that on January 23, 1949, she was skiing at the Mt. Mansfield ski area in Stowe, Vermont; that she had paid the required fee to one of the defendants, Mt. Mansfield Lift, Inc., hereinafter called Lift; had been transported to the top of Mt. Mansfield by this chair lift and [**2] having reached the top, started to ski down a marked trail; that on her way down the mountain, at a certain point on a ski trail, she ran against or collided with a snow-covered stump of a tree and thereby caused a serious fracture of her left leg.
The evidence viewed in the light most favorable to the plaintiff revealed the following situation. Stowe, Vermont, has become one of the largest winter sports areas of the eastern United States. The area of [*788] Mt. Mansfield is a snow bowl. In fact, the slogan of the area is ‘There is always snow in Stowe, you know’. Lift, Inc. was a Vermont corporation which owned or controlled land running up Mt. Mansfield on which it had erected a modern chair lift for skiers, the lift itself being better than a mile long.
In January, 1949, those who desired to ski down the trails of Mt. Mansfield in this area purchased a ticket at the bottom of the mountain where the lift commenced, the ticket costing 75 cents for a single ride up the mountain. After purchasing the ticket, the prospective skier stood in line and as the skier’s turn came, sat in the ski chair, generally with skis on. The skier was then hoisted better than 2,000 feet above the [**3] elevation of the bottom of the ski lift and deposited at the top of the ski lift at the top of Mt. Mansfield.
At the top of the ski lift, there was what is known as the Octogon House, made of stone, in which was served refreshments and also in which was a blackboard or chart on which were listed the particular trails which were open for skiing.
There were also located in this general area at the top of the lift signs pointing to the starting points of various trails down the mountain, each trail bearing a different name, such as Nosedive, Skimeister, Toll Road, etc. Most of these trails started on land that was owned or controlled by Lift, Inc. As these trails wended their way down Mt. Mansfield, they twisted their way, on occasion, onto lands owned or controlled by others. Defendant Mt. Mansfield Hotel, Inc., hereinafter called Hotel, Inc., at the time of the accident, owned and operated a hotel which at that time cared for approximately 20 guests. Most of these guests were ski enthusiasts. The Skimeister trail, as it came down Mt. Mansfield, came onto land of the Hotel, Inc. The Skimeister trail had been in operation for many years before this accident with the full knowledge and [**4] approval of Hotel, Inc. The trails were areas cleared down the rough mountain side of Mt. Mansfield by cutting trees, by bulldozing and by other methods. The trails are of varying width, some of trails being much more crooked than others.
The maintenance of the trails in the summertime consisted of mowing and cutting the brush and trees and of widening existing trails. Various residents, interested innkeepers in and about Stowe, men from the Forestry Department of the State of Vermont and workers provided by Lift, Inc., Hotel, Inc., and other organizations interested in skiing, did the summer maintenance work on these trails.
Generally speaking, there were three classes of trails on Mt. Mansfield which those who used the ski lift might choose. There was one class of trails known as expert trails. To maneuver these trails required a high degree of skiing ability. The second class of trails were known as the intermediate trails. These trails were less hazardous and less difficult than the expert trails, but one to negotiate them safely needed to be a fairly good skier. The third class of trails were known as the novice trails. These trails were for those who had skied but little. [**5]
During the winter of 1948-1949, the policing of the trails was done by an association known as the Mt. Mansfield Ski Patrol. This ski patrol consisted of five or six good skiers who were paid by the Mt. Mansfield Ski Club. This club, in turn, raised its funds by contributions from individuals, corporations, innkeepers and the like. Its total budget for the winter season of 1948-1949 was in the vicinity of $ 3,000. Of this, about $ 1,000 was contributed by the Hotel, Inc. and another substantial sum by the Lift, Inc.
The duties of this Ski Patrol were many. It was the Patrol’s duty each day to inspect each trail to determine which trails were suitable for skiing and which were not. Having done this, the patrol would see to it that the blackboard in the Octagon House which listed the trails open for skiing would properly list those that were open for skiing on this particular day. The patrol would also see to it that such trails as were adjudged by it as unsafe for skiing were closed off by chain or rope and that warning signs were put up at the start of the trail and at other places warning that this particular trail was not open.
In addition, members of the patrol skied down the [**6] trails [*789] and kept their eyes open for any unsafe conditions that appeared on open trails. If there were any, patrol members took steps to put up proper warning flags or proper safeguards or notified officials of the lift that there was a dangerous spot at a certain place on a certain trail so that steps would be taken immediately either to erect proper warning notices or to close off the trail.
The main purpose of the members of the ski patrol was to be available in case of any injury to any skier. Ski patrol members were trained in first aid and had equipment staged at various places on Mt. Mansfield for the purpose of removing injured skiers safely and expeditiously to the bottom of the mountain and if necessary to a hospital.
On January 23, 1949, Mr. and Mrs. Wright, accompanied by Mr. Abrams, went from Fayston, Vermont, where the Wrights were both working at this time, to Stowe, Vermont, for skiing purposes. Mr. Wright was an expert skier, having been certified as such, and was engaged as a ski instructor at the Mad River Valley ski project. Mrs. Wright had been skiing for 2-3 years and had taken lessons from her husband and others. She was not what is known as an expert [**7] skier, but was in what is generally termed as the intermediate ski class. Mr. Abrams was not as good a skier as Mr. and Mrs. Wright, but was generally able to negotiate intermediate trails.
On the day in question, this party arrived at the foot of Mt. Mansfield around noon. Mrs. Wright and Mr. Abrams purchased a ticket for 75 cents apiece to ride to the top of Mt. Mansfield on the ski lift. Mr. Wright being a professional was not required to buy a ticket. This was a courtesy extended by the lift to professional skiers. In due time, the party arrived at the top of Mt. Mansfield via the lift. Mr. Wright checked to see what trails were open and the group then went to the start of the Toll Road trail. The Toll Road trail down Mt. Mansfield is a gravelled road used by automobiles during the summertime. It is about four miles in length and one who goes down the Toll Road all the way, comes out at a point about two miles from the bottom of the lift and to get back to the lift, has to either walk or go by taxi. This Toll Road is classified as a novice trail. The party skied down the Toll Road until they came to a cut-off from the Toll Road, known as the 5th Avenue Cut-off. The party then [**8] turned onto this cut-off and skied down the cut-off until they arrived at the Skimeister trail. They then swung down the Skimeister trail until they came to the head of an open slope known as the T-bar slope, thence down that slope to the foot of the mountain. In coming down the mountain, Mr. Wright would lead the way, followed by Mrs. Wright and then followed in turn by Mr. Abrams. They would ski a distance of 200-300 feet, more or less, then stop and visit and then after resting a little, Mr. Wright would start off again followed in due time by Mrs. Wright and Mr. Abrams. Mr. Wright would ski as far as he thought wise on a given lap, stop and Mrs. Wright would come up behind him, stop, and Mr. Abrams the same. The first trip down these trails on Mr. Mansfield was uneventful. The party then got back onto the lift, again Mrs. Wright and Mr. Abrams purchasing tickets for 75 cents and were conveyed to the top of Mr. Mansfield once more.
The three of them started once again down the identical route they had taken on the first descent; down the Toll Raod to the 5th Avenue Cut-off, down the 5th Avenue Cut-off to the Skimeister trail, down the Skimeister trail to the top of the T-bar and [**9] the open slopes. The 5th Avenue Cut-off is just what the name implies, a cut-off from the Toll Road trail to another trail. It was an easy trail, a novice trail. The Skimeister trail, on the other hand, was an intermediate trail. The second trip down the mountain by this party was uneventful until the party came onto the Skimeister trail. There, a couple of hundred feet from where the Skimeister trail ran into the open slope and the T-bar lift, the party stopped for a rest and visit. Then Mr. Wright, as was the procedure on this particular day, skied down about 120 [*790] feet or so to within sight of the head of the T-bar lift, and also within sight of the hut called the Christienda hut, which is located near the top of the T-bar lift. He stopped and turned around and watched his wife come along. As Mrs. Wright began to approach him, she went into what is known as a snow-plow. This is a procedure used by skiers for stopping. It consists of turning the toes in to about an angle of 30 degrees each and putting more pressure on the inside runner of each ski. As she was snow-plowing to a stop, she suddenly fell and began to cry out in pain for help. Mr. Abrams, in the meantime, was [**10] standing at the spot they had last stopped. He then skied to the spot where Mrs. Wright had fallen.
Mr. Wright rushed up from a spot 15-20 feet away. Shortly a member of the ski patrol arrived with a toboggan. Mrs. Wright was in pain and was loaded onto the toboggan, tied onto the toboggan and thus taken down to the foot of the mountain and thence by automobile to the Morrisville Hospital.
The trail at the point of the accident was of good width and was more or less level land. It wasn’t hazardous or steep in any way at this spot. No stump showed above the snow. There was a smooth snow surface. Indeed the Skimeister trail had ample snow. The witness Abrams testified that at the point of the plaintiff’s fall, he got down and brushed the snow aside with his hand. He then found a stump 4-5 inches high from the ground- definitely a cut tree- no jagged edges. From the evidence one could infer that it was this obstacle that caused Mrs. Wright to fall and break her left leg.
From this recitation of the facts, as viewed in the light most favorable to the plaintiffs, it is apparent that there is no evidence of any nature that connects the defendant, Stowe-mansfield Association, Inc., with [**11] this case. Stowe-Mansfield Association, Inc. neither owned or controlled any of the land on which this accident happened. It was merely a promotional enterprise for the Stowe-Mansfield area. Indeed, the plaintiffs make no claim, that as the evidence stands, there is liability upon Stowe-Mansfield Association, Inc.
Therefore, a directed verdict on this defendant’s part is granted.
The situation is different, however, in regard to the Lift Company and the Hotel Company.
In the eyes of the law, the plaintiffs were invitees of the Lift and Hotel Companies. Whenever one makes such use of another’s premises as the owner intends he shall, or such as he is reasonably justified in understanding that the owner intended, this is an implied invitation to enter onto the land of anther. Wool v. Larner, 112 Vt. 431, 436, 26 A.2d 89.
The Lift Company invited the plaintiffs to the top of the lift. It maintained on its premises a record as to which trails were open and had signs on its property for the purpose of leading the plaintiffs to their choice of trail, in this case the Toll Road Trail. Once on the trail and heading down onto the Skimeister Trail, part of which was on land of the Hotel Company. [**12] This trail the Hotel Company had sanctioned for years. Indeed, the reason for each of the trails mentioned being open was to financially benefit both the Lift Company and the Hotel Company.
The duty owed the plaintiffs, invitees, by each of these two defendants was to advise them of any dangers which reasonable prudence would have foreseen and corrected. Slattery v. Marra Bros., 2 Cir., 186 F.2d 134, 136.
Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of infinite kinds. Breakable crust may be encountered where soft snow is expected. Roots and rocks may be hidden [*791] under a thin cover. A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning.
[**13] Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.
The doctrine of volenti non fit injuria applies. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary. Thus one who goes ice skating on a rink assumes the ordinary risks of the sport which includes inequalities of surface. Oberheim v. Pennsylvania Sports and Enterprises. 358 Pa. 62, 55 A.2d 766, 769; Shields v. Van-Kelton Amusement Corp., 228 N.Y. 396, 127 N.E. 261; McCullough v. Omaha Coliseum Corp., 144 Neb. 92, 12 N.W.2d 639, 643. One who goes to a swimming beach as an invitee accepts the dangers that inhere in it so far as they are obvious and necessary. McGraw v. District of Columbia, 3 App.D.C. 405, 25 L.R.A. 691, 692-693. A passenger who rides on a scenic railway and falls off, through no unusual action of the railway, may not recover. The passenger has placed himself in a position of obvious danger for the purpose of receiving the sensation caused by the sudden and violent motion of the car. He assumed [**14] the risk. Lumsden v. L. A. Thompson Scenic Railway Company, 130 App.Div. 209, 114 N.Y.S. 421, 423.
One who had participated in bobsledding and had followed that sport for some years assumes the risk attendant upon participation of that sport. The bobsled enthusiast knew that bobsled racing was a dangerous sport and could not recover for such injuries received. Clark v. State, 195 Misc. 581, 89 N.Y.S.2d 132, 139.
In this skiing case, there is no evidence of any dangers existing which reasonable prudence on the parts of the defendants would have foreseen and corrected. It isn’t as though a tractor was parked on a ski trail around a corner or bend without warning to skiers coming down. It isn’t as though on a trail that was open work was in progress of which the skier was unwarned. It isn‘t as though a telephone wire had fallen across the ski trail of which the defendant knew or ought to have known and the plaintiff did not know.
The trail at the point of the accident was smooth and covered with snow. There were no unexpected obstructions showing. The plaintiff, in hitting the snow-covered stump as she claims to have hit, was merely accepting a danger that inheres in the sport of skiing. [**15] To hold that the terrain of a ski trail down a mighty mountain, with fluctuation in weather and snow conditions that constantly change its appearance and slipperiness, should be kept level and smooth, free from holes or depressions, equally safe for the adult or the child, would be to demand the impossible. It cannot be that there is any duty imposed on the owner and operator of a ski slope that charges it with the knowledge of these mutations of nature and requires it to warn the public against such. Chief Justice Cardozo in the case of Murphy v. Steeplechase Amusement Co., Inc., 250 N.Y. 479, 166 N.E. 173, 174, discusses the law, which I hold to be applicable to ski accident cases and I quote:
‘Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contract with the ball. * * * The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was [**16] not seeking a retreat for meditation.
Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
‘A different case would be here if the dangers inherent in the sport were obscure or unobserved. * * * Nothing happened to the plaintiff except what common [*792] experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe.’
The verdict is therefore directed for each defendant.
Mark Your Calendar: Winter Trails Day is January 7, 2012
Posted: October 18, 2011 Filed under: Skiing / Snow Boarding Leave a commentWinter Trails Offers Free Snowshoeing & Cross Country Skiing Across the U.S.
WHAT: The 17th annual Winter Trails Day sounds too good to be true, but it is true. Join us on Saturday, January 7, 2012, for a day of FREE snowshoeing and cross country skiing.
If you are new to winter sports, both snowshoe and cross country are easy to learn and fun for all ages — perfect for families or groups and a great way to get outside to exercise. We’ll have experts and the equipment on hand to help you get started, all you have to do is show up ready to have fun.
Discover your new winter passion. Additional information is available at: wintertrails.org.
WHO: Winter Trails is organized by SnowSports Industries America (SIA), the national non-profit member-owned trade association that represents suppliers of consumer snow sports products with constituents in the retail, rep and resort communities. It is supported by the Cross Country Ski Areas Association, the American Hiking Society and sponsoring snow sports companies.
WHERE: More than 80 locations throughout the U.S. Details are updated on wintertrails.org.
WHEN: Most events take place on January 7, 2012, however additional events occur throughout January including Winter Trails Day at Estes Park, Colorado on January 14, 2012. For complete details and event updates visit: wintertrails.org.
WHY: Snowshoeing and cross country skiing are two excellent winter outdoor activities that can be enjoyed by individuals, groups of friends and family members of varying ages. Snowshoeing and cross country skiing are affordable, easy to learn and provide moderate to vigorous exercise, depending on an individual’s effort.
With obesity rates in the U.S. at an all time high, Winter Trails introduces active (or not-so-active) children and adults to two classic winter sports. In 2011, more than 11,250 people participated in Winter Trails events across the country.
SPONSORS: Alpina Sports, Atlas Snowshoes, Backpacker Magazine, Crescent Moon Snowshoes, Cross Country Skier Magazine, Fischer Skis, Madshus, Mountain Safety Research (MSR), Rossignol, Salomon, SkiTrax Magazine, Snowshoe Magazine, Swix, Tubbs, Whitewoods and XCSkiresorts.com.
What do you think? Leave a comment.
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NJ court holds ski statute stops suit by snowboarding expert for hitting a post
Posted: October 16, 2011 Filed under: New Jersey, Ski Area | Tags: Adventure travel, New Jersey, Outdoor recreation, Rock climbing, Ropes course, Ski Resort, summer camp Leave a commentNeustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
You hit a post as an expert and expect the resort to be at fault
In this New Jersey decision, the plaintiff sued Mountain Creek Resort for the injuries he sustained when he snowboarded into a piece of PVC pipe holding orange netting. The netting was used to separate two runs, one for experts and one for beginners.
The plaintiff stated he swerved to avoid a cluster of skiers hitting the post. Under New Jersey law a manmade object should be removed as soon as possible, unless necessary for the normal operation of the resort. N.J.S.A. 5:13-3(a)(3)
The plaintiff claimed the defendant “plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” The judge at the trial court level dismissed the plaintiff’s case in the middle of the trial because the plaintiff had failed to prove his case.
The judge had also limited the testimony of the plaintiff’s expert witness because the expert witness had only visited the site once and his opinion included information and photographs that were not relevant to the facts of the case. The plaintiff’s expert did not have experience in running a ski operation so a large part of his opinion on the operation of the resort was also excluded.
After the dismissal the plaintiff appealed where the NJ Appellate court reached this decision finding for the defendant.
Analysis
The analysis of this case is very different. Normally you look at what the defendant did wrong, but what the plaintiff failed to do.
First the plaintiff hired an expert who either was asked or on his own went beyond the parameters of his area of expertise. An expert witness can only testify about what they have expertise either through experience, education or skill has specialized knowledge or expertise in an area. However that area is strictly defined. When an expert offers opinions beyond the area of expertise the court is required to eliminate or restrict the testimony.
Second, to go forward with a case and to ultimately win a decision at the trial court level the plaintiff has to prove all of the points necessary to prove negligence or to prove the statute was violated. Here, when the plaintiff lost the expert witnesses testimony he did not have enough proof to sustain his case.
What do you think? Leave a comment.
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Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Posted: October 16, 2011 Filed under: Assumption of the Risk, Legal Case, New Jersey, Ski Area, Skiing / Snow Boarding | Tags: additionally, Assumption of risk, case-in-chief, correctly, essential element, expert testimony, failed to present, fence post, fencing, Hazard, hazardous, inflexible, involuntary dismissal, legitimate inferences, man-made, photographs, pole, practicable, reasonable time, reconstructed, Ski, ski area, Ski Resort, Skier, skiing, Slope, Snow, Snowboarders, sufficient evidence, Trail Leave a commentNeustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Mark Neustadter and Katherine Neustadter, Plaintiffs-Appellants, v. Mountain Creek Resort, Inc., Defendant-Respondent.
DOCKET NO. A-5671-05T5
Superior Court of New Jersey, Appellate Division
2008 N.J. Super. Unpub. LEXIS 1584
September 11, 2007, Argued
February 15, 2008, Decided
NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Certification denied by Neustadter v. Mountain Creek Resort, 195 N.J. 521, 950 A.2d 907, 2008 N.J. LEXIS 721 (2008)
PRIOR HISTORY: [*1]
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-670-03.
CORE TERMS: pole, man-made, hazard, ski, skier, trail, sufficient evidence, involuntary dismissal, expert testimony, failed to present, fence post, fencing, slope, ski resort, assumption of risk, photographs, correctly, hazardous, skiing, snow, reconstructed, snowboarders, ski area, reasonable time, legitimate inferences, essential element, case-in-chief, additionally, practicable, inflexible
COUNSEL: John R. Lanza argued the cause for the appellants (Lanza & Lanza, LLP, attorneys; John R. Lanza, of counsel; Mr. Lanza and Kenneth W. Thomas, on the brief).
Samuel J. McNulty argued the cause for the respondent (Hueston McNulty, attorneys; Mr. McNulty, of counsel and on the brief).
JUDGES: Before Judges Skillman, Yannotti and LeWinn.
OPINION
PER CURIAM
Plaintiffs, husband and wife, appeal from the trial court’s grant of an involuntary dismissal at the end of their case seeking damages for injuries allegedly sustained by plaintiff-husband, Mark Neustadter (hereinafter “plaintiff”), in an accident on defendant’s premises, a ski resort.
On January 7, 2002, plaintiff, an acknowledged snowboarding expert, was injured while snowboarding at defendant’s resort when he collided with a post supporting orange netting on the slope. The gravamen of his negligence claim was that the post was so deeply embedded in snow, and of such an inflexible material, that it was immovable and took the full force of his body, resulting in a shattered knee.
At the conclusion of plaintiff’s case, the trial judge determined that plaintiff had not presented [*2] sufficient evidence to allow the jury reasonably to find liability on defendant’s part. The judge also concluded that plaintiff had failed to adduce any evidence to show the injury in question was caused by the collision with the identified fence post. Accordingly, the judge dismissed the complaint.
Plaintiff raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ [SIC] MOTION FOR AN INVOLUNTARY DISMISSAL PURSUANT TO R. 4:37-2(b)
A. AS TO THE MEDICAL EXPERT, DR. WEISS
B. AS TO THE LIABILITY EXPERT, MR. HANST
1. THE PHOTOGRAPHS
2. THE ALLEGED NET OPINION
POINT II: THE TRIAL COURT IMPROPERLY LIMITED THE EXPERT TESTIMONY OF DR. WEISS AND MR. HANST
POINT III: THE TRIAL COURT ERRED BY PERMITTING DEFENDANT TO CROSS-EXAMINE PLAINTIFF’S EXPERT WITH A DOCUMENT IT FAILED TO PRODUCE IN DISCOVERY
POINT IV: THE TRIAL COURT IMPROPERLY EXCLUDED THE INTRODUCTION OF PLAINTIFF’S MEDICAL BILLS INTO EVIDENCE
POINT V: THE TRIAL COURT SHOULD NOT HAVE PERMITTED DEFENDANT TO NAME A MEDICAL EXPERT AFTER THE CONCLUSION OF THE ARBITRATION
Having thoroughly reviewed the trial record, we are convinced the judge properly limited the testimony of plaintiff’s liability expert and correctly [*3] concluded that plaintiff had not presented sufficient evidence to allow the jury reasonably to find liability on defendant’s part. This conclusion makes it unnecessary to reach the other issues raised on appeal.
In his complaint, plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” He set forth the “particulars” of defendant’s negligence as follows:
a) Defendant knew, or in the exercise of reasonable care should have known, that the unprotected pole was dangerous, and Defendant failed to warn Plaintiff of that condition;
b) Defendant failed to cover the pole with a material in order to protect Plaintiff from being injured should Plaintiff come into contact with the pole;
c) Defendant knew, or should have known, that the pole, if left open and exposed was likely to be dangerous to ski[ers] and snowboarders, and with such knowledge Defendant failed to cover the pole or use any other means to keep it safe for its business invitees;
d) Defendant failed to cover the pole with a protective covering for the protection of skiers [*4] and snowboarders; and
e) Defendant permitted the pole to be left unprotected and defective and dangerous knowing that the pole would necessarily pose a risk of harm to Plaintiff and other business invitees, skiers, and snowboarders.
Plaintiff proffered John H. Hanst as his liability expert. Hanst rendered a report on May 21, 2005. Other than his review of documents, Hanst’s opinions were based solely upon his one and only site visit to the ski resort on March 24, 2005, more than three years after plaintiff’s accident.
During that site visit Hanst “reconstructed” the accident with plaintiff and described the reconstruction in his report as follows: “We walked up the trail to the area where the incident occurred. The area was modestly changed. . . . A few of the fence posts have been covered with padding although the majority of them were not padded.” (Emphasis added). Hanst included photographs of the reconstructed accident scene in his report.
Defendant challenged Hanst’s report and testimony in an in limine motion. Defendant contended that Hanst described “conditions that were not those described by the Plaintiff. . . . H[is report] talk[ed] about a condition that did not exist and [wa]s [*5] not relevant or material to the case that w[ould] be before th[e] Court.”
In ruling on that motion, the trial judge found that Hanst’s report described conditions that were not in existence “on the date of [plaintiff’s] . . . accident. . . . They were at a [much later] time . . . when the conditions on the slope were not the same. Nobody can say they were the same.” (Emphasis added).
The judge limited Hanst’s testimony to “what conditions should exist on a ski slope and how the conditions on the day in question deviated, based upon the testimony of Mr. Neustadter.” The judge also ruled Hanst’s photographs of the reconstructed accident scene inadmissible because they “specifically show poles that are different from those that are described by Mr. Neustadter as existing in the area where he was injured on the day in question.” In the course of his ruling, the judge noted that Hanst’s report did not address plaintiff’s claim that “the poles had been in the snow too long and ice had formed around them and possibly they didn’t flex the way they should.”
At trial, plaintiff testified that he swerved to avoid a cluster of skiers ahead of him. This caused him to collide with a PVC pole, one to [*6] two inches in diameter, that was supporting orange mesh fencing erected to distinguish the expert trail from the novice trail.
At the conclusion of Hanst’s voir dire, the judge limited his qualification as an expert to the area of alpine skiing, and excluded him from giving expert testimony on the subject of “mountain management” since he had no experience in that field. The sum total of Hanst’s liability testimony was that a rigid pole was a “man-made hazard,” and the ski operator had an obligation to reduce or eliminate that hazard.
After plaintiff had completed presentation of his case-in-chief, defendant moved for involuntary dismissal of the complaint pursuant to Rule 4:37-2(b). The judge granted the motion finding that plaintiff failed to present sufficient evidence to establish liability under the Ski Statute, N.J.S.A. 5:13-1 to -11. The judge additionally found that plaintiff failed to present sufficient evidence to show that any negligence on the part of defendant was a proximate cause of his injury. On June 23, 2006, the judge entered an order memorializing his findings. This appeal followed.
Plaintiff argues that the judge erred by granting defendant’s motion for involuntary [*7] dismissal of their complaint. He maintains that defendant had a duty under the Ski Statute to remove any “obvious man-made hazard” from the premises. Plaintiff contends that he presented evidence showing that he struck a man-made fence pole. He contends further that, because his evidence showed that the post was rigid, thereby constituting a “hazard,” the jury should have been permitted to determine whether defendant failed to discharge its duty to remove the pole. We disagree.
Rule 4:37-2(b) provides that, upon completion of a plaintiff’s case-in-chief,
the defendant . . . may move for dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. . . . [S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor.
In other words, dismissal is appropriate where the court determines that no rational jury could conclude from the evidence that an essential element of plaintiff’s case is present. “The trial court is not concerned with the worth, nature or extent . . . of the evidence, but only with its existence, viewed most favorably to [*8] the party opposing the motion.” Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). Where, as here, plaintiff failed to adduce expert testimony on the essential element of liability, such failure will warrant dismissal of his personal injury action.
The Ski Statute clearly defines the respective liabilities of skiers and ski operators, and sets forth the duties of both and the assumption of risk borne by skiers. N.J.S.A. 5:13-1 to -5. The statute states that a skier’s assumption of risk under N.J.S.A. 5:13-5 bars recovery for injuries sustained due to “the inherent risks of skiing . . . created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions.” N.J.S.A. 5:13-6 states that a skier’s assumption of risk:
shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a skier for injuries resulting from the assumed risks, . . . unless an operator has violated his duties or responsibilities under this act, in which case the provisions of [comparative negligence] shall apply.
The Ski Statute imposes upon the ski operator a duty to “[r]emove as soon as practicable obvious, man-made hazards.” N.J.S.A. 5:13-3(a)(3). [*9] However, the statute expressly exempts a ski operator from liability for its failure to remove man-made hazards such as fencing or poles which are necessary for the normal operation of a ski resort, as follows:
No operator shall be responsible to any skier or other person because of its failure to [remove obvious man-made hazards] if such failure was caused by . . . the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type, racing poles, or any other object or piece of equipment utilized in connection with the maintenance of trails . . . used in connection with skiing.
[N.J.S.A. 5:13-3(b)(3) (emphasis added).]
In addition, a ski operator shall not be held liable for failure to remove obvious, man-made hazards unless the operator “has knowledge of the failure to [remove man-made hazards]” or “should have reasonably known of such condition and having such knowledge has had a reasonable time in which to correct [the] condition.” N.J.S.A. 5:13-3(d).
Plaintiff failed to present any evidence to support his allegations that the fence post was an obvious, man-made hazard; or that defendant had actual or constructive [*10] knowledge of an obvious, man-made hazard relating to plaintiff’s injuries; or that defendant failed to remove such a hazard within a reasonable time. Therefore, the trial judge correctly found that plaintiff failed to present sufficient evidence from which a jury could reasonably find that defendant failed to meet its duty under N.J.S.A. 5:13-3(a)(3) to “[r]emove as soon as practicable obvious, man-made hazards.” As the trial judge recognized, liability may not be imposed under the Ski Statute if a ski operator’s failure to comply with N.J.S.A. 5:13-3(a)(3) was caused by the “location of man-made facilities” that are “necessary for the ordinary operation of the ski area[.]”
In his decision on the record, the judge aptly observed that there was nothing inappropriate about the placement of the fence posts delineating the expert trail and the novice trail; and it was plaintiff’s burden to show, through expert testimony, that something had happened to the poles after their installation which rendered them hazardous and not “necessary for the ordinary operation” of the facility. The judge properly determined that plaintiff had not met his burden in this regard. Moreover, the judge rightly [*11] found that plaintiff had not presented any evidence to show that defendant was aware, or reasonably should have been aware, that the poles had become hazardous for a reasonable period of time in which to address that condition. Therefore, the judge correctly determined that the evidence presented by plaintiff, and the “legitimate inferences” that could be drawn from that evidence, were insufficient to “sustain a judgment in plaintiff’s favor.” R. 4:37-2(b).
Plaintiff additionally argues that the judge erred by limiting Hanst’s testimony at trial. Again, we disagree. A trial judge has the discretion to determine whether an expert is competent to testify. Carey v. Lovett, 132 N.J. 44, 64, 622 A.2d 1279 (1993). As we stated previously, the judge barred Hanst from testifying concerning the fencing on defendant’s premises because Hanst’s opinions were not based on the conditions that existed at the time plaintiff was injured. At trial, the judge also precluded Hanst from testifying that defendant should have had special “break away poles” and refused to permit Hanst to speculate as to whether weather conditions that might have existed at the time of the accident caused the PVC poles to become inflexible. [*12] None of those issues had been addressed in Hanst’s report. We are convinced that the judge did not abuse his discretion by limiting Hanst’s testimony.
Affirmed.
CAIC BENEFIT BASH
Posted: October 14, 2011 Filed under: Avalanche Leave a commentNovember 12th, 2011
Presented by:
Backcountry Access, La Sportiva, Voile, Vail Resorts, New Belgium Brewing Company
Featuring: Green River Vibe
The Friends of CAIC is proud to announce the 4th Annual CAIC Benefit Bash! This year is shaping up to be the best party we have thrown yet. Last year was a blast and sold out in under an hour. We hosted 1500 people and raised just over $45000 for the CAIC.
This year we expect much of the same; A sell out crowd, a kick ass band, tons of gear, a massive silent auction, a plethora of food, great New Belgium beer, and a massive effort to raise $50k to go toward avalanche forecasting and education in Colorado!
The Details:
When: November 12, 2011
Time: 5pm-10pm and then of course an after party with some dance lessons
Where: The Breckenridge Riverwalk Center
Tickets are available HERE. WE WILL SELL OUT SO GET THEM EARLY!
Discount Hotel Rooms are available at the Village Hotel: Please call Breckenridge Hospitality Reservations Department at (888)-525-1787 and ask for group code BC1CAI
Sponsors:
BCA
Vail Resorts
Voile USA
La Sportiva
Aspen Skiing Company
Mountain Khakis
REI
Epic Quest
Vail Racquet Club
Smith Optics
Babes in the Backcountry
Venture Snowboards
Ski and Snowboard Journal
Mammut
Freeride Systems/Prospect Pant Co.
Friends of Berthoud Pass
Unity Snowboards
Scarpa
Gatherhouse Studios
Rab USA
Woodwinds Property Management
Wildernest Lodging
Monarch Mountain
Powder Addiction
Alpine Quest Sports
KKVM The Mile
Summit Ford
Alta
Orage
Line Skis
Hestra
Eider
The Sleep Shop
MFD ALL TIME
Steamboat Powdercats
FlyLow
Nightmare Snowboards
Melanzana
Wilderness Exchange Unlimited
Summit Huts
Abbie Groves Artwork
Mountainsmith
Krystal 93
Black Diamond
Mountain Buzz
Patagonia
Alpine World Ascents
Mountain Haus Lodge
Fortitude Skis
Backcountry.com
Billabong
Kling Mountain Guides
American Rec
Slope Style
Cuppa Joe Breckenridge
Hearthstone
Silverton
Avalanche Mapping
TGR!
Alaska Heli Skiing
Mountain Outfitters
Fatypus Skis
Icelantic Skis
Salomon Skis
NRC Broadcasting
Summit Foundation
Ortovox
Woodward at Copper
The Big Hit
AMR
Minturn Anglers
Guiry’s Color Source
Loveland Ski Area
Copper Mountain
Christy Sports
Powder Tools
Vail Mountain Coffee
Wilderness Sports
Ski Logik
Summit County Rescue Group
Specialized Stump Removal
Rocky Mountain Guides
Kayak Lake Dillon
Ten Mile Café
First Ascent Mountain School
Larry’s Boot Fitting
Vail Powder Guides
San Juan Snow Cat Tours
Rack Attack
Green Mountain Sports
Confluence Kayaks
Billy’s Inn
Rise and Shine Biscuit Café
Sports Optical
Food Sponsors:
Kenosha
Giampietros
Downstairs at Erics
Relish
Mi Casa
North Side Pizza
Michael’s
Taddeos
Fatty’s
A Café
Twist
Harvest Catering
This is going to be so much fun!
Do Something
What do you think? Leave a comment.
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Colorado Resorts invest millions in everything from terrain parks to parking
Posted: October 11, 2011 Filed under: Ski Area Leave a commentDenver, Colo. – August 30, 2011 – Colorado Ski Country USA (CSCUSA) resorts show continuing dedication to maintaining the highest standard in ski vacations with preparations and investments for the 2011/12 season. From minor developments that will seamlessly improve guest experiences, to major renovations that will allow resorts to continue to provide the excellent service to which guests have become accustomed, resorts have devoted more than $50 million to new projects for the upcoming season.
According to National Ski Areas Association, the United States had more skier visits in 2010/11 than any previous ski season in history, surpassing the 60 million mark. Colorado resorts accounted for more of these visits than any other state in the nation with more than one in five skiers choosing to ski at a Colorado resort.
“Without question, Colorado Ski Country’s resort facilities allow the state to provide the absolute finest ski vacation experience available,” said Melanie Mills, president and CEO of CSCUSA. “Colorado has always set the standard with advanced improvements from high-tech lifts and ticketing systems, to state-of-the-art terrain parks and on-mountain amenities.”
Below is a roundup of what’s new in Colorado Ski Country for the upcoming season. The energy and capital spent by resorts on infrastructure includes improvements that will impact all ages and abilities, and are either winter specific or year-round.
New Lifts
Aspen/Snowmass’s Buttermilk Mountain will have a new lift and gladed terrain this season. The new Tiehack Express lift, a Leitner Poma high-speed quad, will replace both the Eagle Hill and the Upper Tiehack lifts, cutting the combined ride time from 18 minutes to just under seven minutes. New construction has already begun on the project, and a complete installation is expected for the resort’s December 2011 opening. In addition to the new lift, there will be some additional gladed terrain in the area.
Copper Mountain is replacing the High Point Lift in West Village (formerly Union Creek) with a new lift that will provide improved service for all levels of skiing and riding ability. The Union Creek High Speed Quad, manufactured by Doppelmayr USA, will have a new alignment to help improve skier and rider circulation in and out of West Village. In conjunction with the new lift, the addition of a new trail connection from the east will make the circulation much easier from the Catalyst Terrain Park and the beginner and intermediate terrain in the area.
A new lift will reside at Loveland as that resort replaces Chair 4 with a new fixed grip triple from Leitner Poma, while Monarch’s renovations for next season will also include a new lift. A 450 ft. long conveyor lift on Snowflake is being installed in time for the resort’s opening.
For the upcoming season, Ski Cooper is installing a 770 ft. Magic Carpet to replace the Printer Boy Platter. This sizable improvement will be at the base area of the mountain, in the ski school and beginner skier and rider area.
Terrain Park Improvements
Some of the most creative accelerations of the off-season are taking place in the terrain parks of Colorado Ski Country. SolVista Basin at Granby Ranch is adding a number of new features to its terrain park for the upcoming year, including an underground gas tank, a six-foot tall satellite dish and log jibs. Leading the improvements in SolVista’s terrain parks is Ted’s Secret Stash, an all natural log park off the Jackalope run; and Progression Park, a beginner terrain park at the base area; and the newest feature The Tank, a former underground fuel tank that is eight feet in diameter, 30 feet long, and boasts a quarter-pipe on each end.
Another resort with new terrain park features is Echo Mountain. Echo has continued to improve its trails and park features for the 2011/12 season and is making its trails larger and the park more challenging.
Rounding off terrain park improvements, Winter Park’s Rail Yard Terrain Park’s Super Pipe “Dig-In” will be completed during the early season, which will result in the Half Pipe being opened by Christmas and will see a reduction of water and energy by using less manmade snow. The progressive terrain park system will also see another boost of new features this coming season.
Guest Activities
Guests can now add zip-lining to the menu of activities at CSCUSA resorts. New and open for the season at Crested Butte Mountain Resort (CBMR), is a Zip-Line Canopy Tour. This major addition to CBMR resort amenities will be open year-round, enabling guests to ski to it during the winter months.
In addition to Crested Butte’s zip-line, the Purgatory Plunge Zip-Line at Purgatory at Durango Mountain Resort opened in the off-season and will also be open year-round. The Purgatory Plunge gives guests the opportunity to soar from the Purgatory Village Tower over the ski beach at speeds of approximately 35 mph.
Monarch Mountain is expanding their fleet of touring snowcats with the purchase of a new one for the 2011/12 season. This new snowcat has the capacity to comfortably fit 14 skiers and riders in the cabin.
The Vista Ridge Ceremony Site was completed this summer at SolVista Basin at Granby Ranch. A scenic wedding site that overlooks the Continental Divide, Vista Ridge has a 360 degree view of the peaks of Rocky Mountain National Park. The mountaintop venue is accessed by chairlift, located adjacent to an aspen grove, and offers full ski-down capabilities for those looking to participate in winter nuptials.
Wolf Creek is building a new race hut to replace the one under the Raven Lift. Participants in the resort’s popular Fun Race Series will enjoy the benefits of an upgraded facility to house the race equipment, announce times, and serve as the official finish line for the races.
Dining Facilities
At Aspen/Snowmass, Aspen Skiing Company (ASC) is beginning construction on a new Elk Camp Restaurant. The new restaurant, expected to be open in 2012/13, will replace Café Suzanne and will be located adjacent to the top of the Elk Camp Gondola at Snowmass. The Elk Camp Restaurant will provide seating for up to 300 guests and include summer and evening event space. The project is scheduled to be LEED Certified and to implement advanced heating systems with other green materials to beat local energy codes by an estimated 30 percent. Elk Camp will be ASC’s fifth LEED certified building, following closely on the heels of Sam’s Restaurant (Gold) and Holiday House (Platinum).
Also at Aspen/Snowmass, The Merry-Go-Round restaurant, situated mid-mountain at Aspen Highlands, is undergoing a major remodel to make the building more energy efficient as well as enhance guest comfort and food quality. The reopening is scheduled for opening day of Aspen Highlands on December 10, 2011.
At Crested Butte, renovations to the Paradise Warming House, the mid-mountain cafeteria style culinary facility, are underway. The resort is redesigning the food line, creating new signage and giving the facility an overall updated look that will further enhance the guest experience.
Restroom improvements have been underway at Ski Cooper, as the resort is installing a vaulted toilet at the bottom of the Piney Basin Triple Chair. Wolf Creek on the other hand, has renovations underway for Treasure Lift’s water free, composting restrooms in preparation for next season. This structure also houses a coffee café, offering homemade pastries, coffee and teas throughout the day.
In Steamboat, the resort is creating a new bar, located in the Cabin Restaurant at the Steamboat Grand. The newest après ski hot spot just across from the Gondola Square base area, it has a unique menu featuring Kennebec Chips with Sriracha Aioli, the Deconstructed BLT (pork belly, tomato jam and arugula, charred on a cedar plank), and Buffalo Carpaccio.
Snowmaking/Grooming
Copper Mountain will enter 2011/12 in partnership with the U.S. Ski and Snowboard Association (U.S.S.A.) to develop an on-snow training center at the resort. To support and develop the U.S. Ski Team Speed Center at Copper, the resort is implementing a new automated snowmaking system, as well as safety, communications and timing equipment necessary to develop a unique training venue. The on-snow training center will operate from November 1 – December 10 each winter season, and will bolster the U.S. Teams’ ability to train for speed events before the competitive season begins.
On-mountain improvements continue at Crested Butte as the resort is enhancing its kids’ trails. These are trails that ski instructors bring their students through that add excitement to the lesson, whether it’s winding through trees, over humps and other terrain, or going around obstacles. The trails have become extremely popular with younger guests and also correlate to Crested Butte’s Kids Trail Map.
Winter Park is also enhancing its beginner trails. Beginners will now have an easier trail to the Village at Winter Park with the opening of the new Sorensen Trail Bypass.
Loveland is adding snowmaking capabilities to Twist at Loveland Valley and Firecut at Loveland Basin, which will expand the resort’s early and late season race training opportunities.
Eldora Mountain Resort has invested heavily in upgrading its snowmaking system which will enrich the on- snow experience in the upcoming season.
Purgatory at Durango Mountain Resort is upgrading its expert terrain via a winch-cat that will provide high-angle grooming. Some expert trails will be groomed or partially groomed using this technique, which will provide a great experience for expert skill level skiers and riders.
Wolf Creek’s grooming fleet of snowcats has a new addition this season, bringing one of the first Finnish snowcats to the US, the Formatic. This heavy equipment is used to smooth terrain and help pack down the powder during storm cycles.
Continuing to improve the versatility to its slopes, Steamboat Resort will be upgraded its snowmaking, while also adding a new snowcat to its slope grooming fleet.
Winter Park is also adding a new snowcat for superior groomed runs. Other capital at the resort has been re-invested into improving existing infrastructure and services.
Rental Fleet
Crested Butte significantly enhanced their demo and learning rental inventory for the upcoming season. The resort bought all new demo gear for its higher end fleet, as well as a brand new Learn to Ride fleet, including women’s and children’s gear.
Along with Crested Butte, Monarch is planning to expand their demo and rental gear offerings. The resort has set aside funds to devote to new rental and demo equipment in hopes of encouraging participants to try out these new items.
Wolf Creek Ski Area’s rental department continues to upgrade its offerings by adding gear to its already extensive collection of boots, skis and snowboard equipment. Along with newly purchased alpine skis, snowboards, boots and poles, Wolf Creek is bringing in a line of Nordic skate skis and classic touring skis to its fleet.
Mountain Facilities
Thanks to the Red Bull Cold Rush, Silverton has brand new carpeting in the base tent for the 2011/12 season, while Monarch has invested in renovating its parking lot to allow for further ease of access and create a more user-friendly parking area.
Loveland’s Ptarmigan Roost Cabin, which sits at the top of Chair 2, is getting a facelift for 2011/12. The resort will be adding restrooms – the first on-hill facilities at Loveland – and restoring the original fireplace. Additionally, the E-Tow Cabin, between Chair 2 and Chair 6, is receiving a massive overhaul including a new interior and an expanded deck. Further cosmetic upgrades at Loveland taking place throughout the off-season will be noticeable to guests at the base areas of both Loveland Basin and Loveland Valley.
Steamboat Resort is installing heated pavers throughout Gondola Square base area so that guests will no longer need to trudge through snow and ice as they walk to the slopes and the Gondola. In addition, the multi-year Promenade project continues to make headway, connecting the base area with Ski Time Square, and includes a new permanent stage facility in Gondola Square which plays host to the resort’s free spring concerts.
Technologies
In 2011/12, resorts continue to use technology in unique ways that streamline and enhance the way they interact with skiers and riders. Arapahoe Basin is upgrading its e-commerce store with a new RTP E-Store. This new site will better serve guests’ needs and allow Arapahoe Basin to offer more of its products online.
Aspen Skiing Company’s ongoing energy efficiency project, whereby the resort has been replacing incandescent bulbs with efficient and aesthetically acceptable fluorescent or LED bulbs, will reach completion on December 31, 2011. On this date, all incandescent bulbs will have been completely banned and replaced, including in every building, from on-mountain restaurants to hotels, and from executive offices to parking lots.
What do you think? Leave a comment.
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In New York a skier assumes the risk of a collision with another skier.
Posted: October 10, 2011 Filed under: Ski Area, Skier v. Skier Leave a commentWhitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
A quick decision supporting the idea that you assume the risk when engaging in recreational activities.
In this decision, the New York Appellate court (called the Supreme Court of New York) upheld the summary judgment of the lower court. The case was between the plaintiff and two defendants. The plaintiff was injured by the minor defendant while skiing. The first defendant was a minor who was involved in the collision with the plaintiff. The second defendant was the youth organization that brought the minor to the ski area. It is unclear, but one of the parties in the collision was snowboarding.
Summary of the case
The court stated that when engaging in a sport or recreational activity participants consent to those “commonly appreciated risks, which are inherent in and arise out of the nature of the sport generally and flow from such participation….” The court found that the risk of injury from a collision with another skier was an inherent aspect of the sport as based on the New York Ski Statute.
GENERAL OBLIGATIONS LAW
ARTICLE 18. SAFETY IN SKIING CODE
NY CLS Gen Oblig § 18-101 (2011)
§ 18-101. Legislative purpose
The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry. [emphasize added]
From the statute the court stated, “The risk of injury caused by another skier is inherent in downhill skiing.” The defendant had also submitted evidence that he was not “engage in instances of reckless, intentional or other risk-enhancing conduct not inherent in snowboarding that might have caused the accident” which the plaintiff did not argue.
The minor defendant won the motion for summary judgment because in New York, a collision is an inherent risk of the sport of skiing. Inherent risks are risks that you must accept when participating in a sport.
The defendant youth organization was dismissed because it exercised reasonable care in supervising the youth. The organization arranged for ski lessons, and once the ski lessons were over, told the youth to stay on the bunny slope.
The court also stated, “Furthermore, the actions of the participants interrupted the causal link between National Council’s alleged negligence and plaintiff’s injury.” I’m not sure what this means. However, it would imply that the plaintiff and or defendant did something that removed the defendant’s actions from the control of the defendant organization. There was an intervening action on the part of the defendant, like leaving the bunny slope that removed the defendant youth group for the chain of liability.
So?
The case is very short and easy to read. As wonderful as that is, it also leaves out a lot of facts. You also don’t know how the court arrived at its decision. However, it reinforces the issue of assuming the risk for your own actions. If you engage in a sport or recreational activity, you assume the risks inherent in the sport. Those risks include the risks defined as inherent by a statute.
Do your guests understand the inherent risks of the activity you are presenting to them? Even though you may win a lawsuit, the cost of explaining those risks, through the litigation process is very expensive. It is better to educate your guests in advance about the risks they are going to encounter.
More importantly, when skiers and boarders realize they cannot sue for collisions it will lower the cost to the ski area. Collisions cost the ski area to pay employees to attend depositions and trials, to gather and distribute documents and evidence and to pay for attorneys to help and attend the legal meetings with clients. On a simple case that goes to trial, that amount can easily add up to $50,000 per collision that the ski area spends.
It also provides information for third parties bringing youth to a ski area. Youth need to be supervised in New York. That does not mean constant supervision, but based on the age of the youth, it requires supervision that is appropriate.
Ski lessons and controlling the range the youths were allowed to ski is important and critical here in releasing the defendant youth group from the claims of the plaintiff.
What do you think? Leave a comment.
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Whitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
Posted: October 10, 2011 Filed under: Assumption of the Risk, Legal Case, New York, Skier v. Skier, Skiing / Snow Boarding | Tags: arranging, assumption of the risk, bunny, canceled, causal, Downhill, essons, failed to raise, instructing, interrupted, issue of fact, Negligence, novices, reasonable care, Reckless, risk of injury, risk-enhancing, ski area, Skier, skiing, Slope, snowboarding, sponsored, Sport, Summary judgment, supervising, trip Leave a commentWhitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
Harrison Whitman et al., Appellants, v. Michael Zeidman, an Infant, by Sarit Zeidman, His Parent and Legal Guardian, et al., Respondents.
5616
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
March 15, 2005, Decided
March 15, 2005, Entered
CORE TERMS: lessons, snowboarding, risk of injury, summary judgment, failed to raise, issue of fact, reasonable care, risk-enhancing, supervising, instructing, interrupted, sponsored, arranging, downhill, reckless, canceled, skiing, novices, causal, skier, bunny, slope, sport, trip
COUNSEL: Law Offices of Renee Simon Lesser, P.C., New York (W. Matthew Sakkas of counsel), for appellants.
Acito, Klein & Candiloros, New York (Francesca A. Sabbatino of counsel), for Zeidman respondents.
Carol R. Finocchio, New York (Mary Ellen O’Brien of counsel), for National Council of Young Israel, respondent.
JUDGES: Concur–Buckley, P.J., Andrias, Friedman, Gonzalez, Sweeny, JJ.
OPINION
[*197] [**55] Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2004, which granted defendants’ motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Harrison Whitman was injured in a collision with defendant Michael Zeidman while snowboarding. By “engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” ( [***2] Morgan v State of New York, 90 NY2d 471, 484, 685 NE2d 202, 662 NYS.2d 421 [1997]). The risk of injury caused by another skier is inherent in downhill skiing (General Obligations Law § 18-101). Defendant submitted proof that he did not engage in instances of reckless, intentional or other risk-enhancing conduct not inherent in snowboarding that might have caused the accident, and plaintiff failed to raise an issue of fact (see Kaufman v Hunter Mtn. Ski Bowl, 240 AD2d 371, 657 NYS2d 773 [1997], lv denied 91 NY2d 805, 668 NYS2d 560, 691 NE2d 632 [1998]).
Although defendant National Council of Young Israel sponsored the trip, it exercised reasonable care in supervising the participants by arranging for lessons to be provided, and once the lessons were canceled, instructing those who were novices to stay on the “bunny” slope (see generally Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 NE2d 288, 739 NYS2d 85 [2001]). Furthermore, the actions of the participants interrupted the causal link between National Council’s alleged negligence and plaintiff’s injury (see [***3] Boltax v Joy Day Camp, 67 NY2d 617, 490 NE2d 527, 499 NYS2d 660 [1986]). Concur–Buckley, P.J., Andrias, Friedman, Gonzalez and Sweeny, JJ.
US Open Cycling Foundation has sticker to tell everyone your car is Bike Safe!
Posted: October 7, 2011 Filed under: Cycling Leave a commentAlso pushes US Open Cycling…
Your tax deductible donation will assist the U.S. Open Cycling Foundation in helping Americans make our country healthier, cleaner and more sustainable through bicycling. For every $5.00 you donate at usopencycling.org, we’ll send you one 5″ x 3″ vinyl “Bicycle Safe Vehicle” sticker appropriate for placement on your car’s rear window.
To learn about bringing the programs of the U.S. Open Cycling Foundation to where you live, call us at 401-484-1161.
What do you think? Leave a comment.
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Monarch Mountain Season Pass is Now Good at 21 Resorts
Posted: October 7, 2011 Filed under: Ski Area Leave a commentTelluride highlights the list of new pass partners
Monarch Mountain has added three more areas to its list of pass partners; Telluride and Ski Cooper in Colorado and Ski Apache in New Mexico. All three are now offering free skiing/riding to Monarch Mountain season pass holders. Monarch Mountain passes are accepted at nine Colorado areas, six New Mexico areas and areas in Utah, Wyoming, California, Michigan, Arizona and British Columbia, Canada.
Colorado areas include; Loveland, Durango, Powderhorn, Sunlight, Sol Vista, Silverton, Ski Cooper, Telluride and of course Monarch Mountain.
There are six ski areas in New Mexico that honor the Monarch Mountain season pass: Taos, Angel Fire, Red River, Pajarito, Sipapu and Ski Apache.
In Utah, Alta offers Monarch Mountain pass holders half-price tickets all season while Grand Targhee, Wyoming and Revelstoke, British Columbia offer free skiing/riding to Monarch Mountain season pass holders.
China Peak, California, Arizona Snowbowl and Indianhead Michigan round out Monarch Mountain’s pass partner team for the 2011-12 season.
“We are very excited to have added Telluride as one of our pass partners for this season” said Rich Moorhead, Monarch CEO. “Telluride is a truly world class destination resort that our guests owe it to themselves to visit”.
Revelstoke, British Columbia, returns this season with an offer that includes three days of free skiing/riding and half-price lodging at the Nelsen Lodge located at the base of Revelstoke Mountain Resort. Monarch Mountain skiers/riders who used their pass benefits last winter in Revelstoke came home with excellent accounts of a great mountain complemented by a charming town.
21 different areas all for one low price make the Monarch Mountain season pass the best value in North America. Season passes are on sale for $339.00 (Adult price, other prices are available on the website) through November 6, 2011. Most of Monarch Mountain’s pass partners offer three days of free lift tickets, but some offers vary. Details and pricing can be found at http://www.skimonarch.com or by calling a friendly local at 719.530.5105
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Recreation Law 