Denver Parks & Recreation’s Park Rangers are looking for a few good bicyclists this summer.
Posted: April 15, 2011 Filed under: Cycling Leave a commentAre you friendly? Do you love Denver’s parks and trails? Planning to be on your bicycle enjoying the outdoors this summer? Ding DONG. No, it’s not the Avon lady. The Denver Park Ranger Program is ringing your doorbell.
BikeDenver and Denver Parks & Recreation’s Park Rangers want YOU to apply by May 1st for selection to a new high-profile volunteer program that will help them take good care of some your favorite places.
The Volunteer Courtesy Patrol needs 30-40 bicyclists over the age of 18 this summer. Volunteers will assist Park Rangers in four of Denver’s most popular spaces; the Cherry Creek Trail, South Platte Trail, City Park and Washington Park. Bike jerseys and other equipment will be provided. Volunteers will provide their own bicycle and helmet.
BikeDenver and Denver Parks & Recreation are teaming up to launch the Volunteer Courtesy Patrol to expand the reach of the Park Ranger program and help educate users about basic park & trail safety rules and courtesies. Volunteers will assist in pairs 3-4 times a month in 3-4 hour shifts on weekends from June to August.
Volunteer Courtesy Patrol Goals:
- Increase the Denver Park Ranger’s presence and visibility in four of Denver’s most popular parks and multi-use trails
- Educate trail and park users about basic safety rules and courtesies
- Model safe riding behavior for bicyclists
- Assist residents and visitors by providing directions and information
- Report on conflict areas, and physical safety issues
Let’s get rolling! Fill out this easy online form by May 1st to submit your application: APPLY FOR THE VOLUNTEER COURTESY PATROL HERE.
You’ll find detailed information in the sign up form and we’ll be in touch about the process, but you might want to note these key dates:
May 1: Applicant Deadline
May 9: Notification
May 11: Volunteer Training
May 17 or 18: On-Bike Volunteer Training
June 3: Pre-Launch Volunteer Meeting & BBQ
June 4: Program Launch
BikeDenver is Denver’s bicycle advocacy organization. We work to promote and encourage bicycling in Denver for recreation and transportation.
The Department of Parks and Recreation stewards Denver’s legacy and is dedicated to customer satisfaction and enhancing lives by providing innovative programs and safe, beautiful, sustainable places.
The Denver Park System includes more than 240 urban parks totaling more than 3,700 acres and more than 240 miles of trails and walks.
The Park Ranger Program provides daily patrol of the urban and mountain park systems and focuses on visitor contact and assistance, park rule and regulation enforcement/education, protection of natural and built resources, environmental education, emergency response and visitor safety.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
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This Saturday another Spokesmen Podcast will be up April 16, 2011
Posted: April 15, 2011 Filed under: Cycling Leave a commentIf you are into cycling or just like to, tune into the Spokesmen.
The Spokesmen are a group of cycling professional, fanatics and interesting people rolled into one podcast every other weekend.
- David Bernstein
- Carlton Reid
- Tim Grahl
- Tim Jackson
- Donna Tocci
- Richard Masoner
- Jeff Helfand at VeloReviews
- Richard Kelly
- DL Byron
- Bob Roll
- Chris Smith
- VeloCast
- Neil Browne
- District Cycling
- Jim Moss, Esq.
Listen live at The Spokesmen Live at Upstream.
Or tune in one of these ways:
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: http://www.recreation-law.com
Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #spokesmen, #the spokesmen, #David Bernstein, #Carlton Reid, #Tim Grahl, #Tim Jackson, #Donna Tocci, #Richard Masoner, #Jeff Helfand, #VeloReviews, #Richard Kelly, #DL Byron, #Bob Roll, #Chris Smith, #VeloCast, #Neil Browne, #District Cycling, #Jim Moss, Esq., #cycling, #bicycling,
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Release stops lawsuit in Canadian Zip Line Lawsuit
Posted: April 14, 2011 Filed under: Release (pre-injury contract not to sue), Zip Line Leave a commentWins for Releases I’ve been told are Rare in BC.
Two women were zip lining when one “slammed” into the other one. The zip line company Cougar Mountain Adventures Ltd. Supposedly one person stalled 1500’ (500 meters) from the end; she did not clear the line. The second person then slammed into her.
The court held the release was valid because it was a high risk activity and there was no legislation preventing the use of a release.
See Zip-line crash victims lose lawsuit and Women hurt in zip-line collision lose lawsuit
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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Interbike International Expo and OutDoor Demo 2011
Posted: April 9, 2011 Filed under: Cycling Leave a commentOnline Attendee Registration Now Open
SAN JUAN CAPISTRANO, Calif. – April 6, 2011 – Today, qualified buyers can register online to participate in the cycling industry’s premier tradeshow and demo event, the Interbike International Bicycle Expo 2011, September 14-16, preceded by OutDoor Demo on September 12 & 13.
Interbike and OutDoor Demo attendee registration is available at www.interbike.com/register.
At the 30th edition of Interbike, manufacturers, retailers, the press and advocates representing categories across the cycling industry will converge on Bootleg Canyon in Boulder City, Nevada, named one of IMBA’s Epic Trails, before their meetings and presentations at the Interbike trade show at the Sands Expo & Convention Center in Las Vegas.
Attendee registration is free through August 12, 2011. Registration for retailers and distributors that register online after this deadline or on-site will be $35 and $100, respectively.
Non-buyer badges are available now for $325 through August 12, 2011 and for $450 after this date. Please note that exhibitor and media registration dates will be announced shortly.
Interbike recently provided the industry with a status update on the more than 560 exhibitors that have committed for the 2011 show. Notable returns to the show include Kona, Easton-Bell and Norco, along with a debut presence by legendary outdoor brand The North Face. To read the release in its entirety or for a current exhibitor list please visit www.interbike.com/pressreleases and www.interbike.com/exhibitorlist, respectively.
About Interbike
The Interbike International Bicycle Expo and OutDoor Demo are the bicycle industry’s leading business-to-business events bringing together top manufacturers, retailers, industry advocates and media to conduct the business of cycling. Interbike is a business unit of Nielsen Expositions, the parent company of the Outdoor Retailer (OR) and Health+Fitness Business expos. Nielsen Expositions is a full-service trade show company that creates, markets and produces high-quality expos and educational conferences. Interbike (www.interbike.com) gathers more than 1,100 cycling-related brands and close to 24,000 total attendees annually.
Interbike celebrates 30 years of serving the industry, beginning with OutDoor Demo (September 12-13, 2011 in Boulder City, Nevada), followed by the Interbike Expo, September 14-16 at the Sands Expo and Convention Center in Las Vegas.
MEDIA CONTACTS:
Maura Lansford, SOAR Communications, 801.656.0472 x2(wk) / 817.929.8123(cell), mlansford@soarcomm.com
Chip Smith, SOAR Communications, 801.656.0472 x3(wk) / 801.597.7515(cell), csmith@soarcomm.com
EUROPEAN MEDIA CONTACT:
Uwe Weissflog, inMotion mar.com, +49(0)714 1913131(wk) / +49(0)170 3164035(cell), uweissflog@inmotionmar.com
America’s Pro Cycling Competition Announces Broadcast Agreement with NBC Sports Group Featuring Live Coverage on NBC and VERSUS from August 22-28
Posted: April 8, 2011 Filed under: Cycling Leave a commentCycling Event Changes Name to USA Pro Cycling Challenge and Unveils a New Logo
April 5, 2011, Denver – The USA Pro Cycling Challenge, formally known as the Quiznos Pro Challenge, today announced that it has entered into a television agreement with the NBC Sports Group to present 25 hours of cycling coverage over seven days.
NBC Sports will broadcast the final day of the inaugural seven-day professional cycling competition live on August 28, 2011. VERSUS, a member of the NBC Sports Group, will extensively cover the event with 3.5 hour broadcasts each day from August 22-28.
The event also announced the change of its name to USA Pro Cycling Challenge in order to showcase the global scale of the event to a worldwide audience. Quiznos will continue as a founding sponsor with the same level of participation in the event.
“There is no stronger television partner than the NBC Sports Group to present the USA Pro Cycling Challenge,” said Shawn Hunter, co-chairman of the USA Pro Cycling Challenge. “With the NBC Sports Group’s extensive, 25 hours of live coverage, millions of fans will be able to follow their favorite cyclists as they compete in the most demanding professional bike race ever held in America.”
NBC will broadcast the USA Pro Cycling Challenge live for two hours on August 28, 2011, while VERSUS, the official home of the Tour de France in the US, will cover 30 minutes of pre-race coverage and one hour of post-race coverage in addition to live event coverage throughout the entire competition.
“Professional cycling is growing to be one of the largest and most compelling international sports to follow,” said Jon Miller, President of Programming of NBC and VERSUS. “Our goal is to give viewers unique access to the pageantry, drama, and extreme competition that will take place as many of the world’s top athletes compete to win the first USA Pro Cycling Challenge.”
USA Pro Cycling Challenge
Effective today, the official name of the international professional cycling competition is now the USA Pro Cycling Challenge. The event was initially titled the Quiznos Pro Challenge after the event’s founding partner, Quiznos. Quiznos will continue as a founding partner with the same level of involvement and participation.
“As the race continues to build momentum with teams and sponsors from across the globe, and as we significantly increase media coverage nationally and internationally, our new logo will brand the event in a way that better communicates the scale of the event and its audience,” said Rick Schaden, owner and co-chairman of the USA Pro Cycling Challenge. “Our goal is to help raise the profile of professional cycling in the United States by hosting an epic race in Colorado that draws the top cyclists in the world and mirrors the excitement of the Tour de France.”
The event also has unveiled a new logo, website www.USAprocyclingchallenge.com and Twitter page @USAProChallenge.
About the USA Pro Cycling Challenge
The USA Pro Cycling Challenge is expected to be the largest spectator event in Colorado history and one of the largest sporting events to ever take place in the United States. For seven consecutive days, 128 of the world’s top athletes will race across nearly 600 miles through the majestic Rockies, reaching higher altitudes than they’ve ever had to endure, more than two miles in elevation. It’s 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.
As the interest in professional cycling continues to grow as a global sport, (which is evident by the addition of two new UCI-sanctioned races this year alone in Beijing and Quebec), it is fitting that the USA Pro Cycling Challenge comes along just in time to put a stake in the ground for the United States. The USA Pro Cycling Challenge is expected to be one of the biggest and best races worldwide… America’s answer to the Tour de France.
The inaugural USA Pro Cycling Challenge will take place August 22-28, 2011. With more than one million spectators expected at the event, as well as national television exposure on NBC and the cable network VERSUS, the USA Pro Cycling Challenge will be the race to celebrate in America.
Spectators of this race will see Olympians, World Champions and Tour de France competitors. Fans worldwide will have access to the competition and riders like never before with the most advanced, interactive online, smartphone and broadcast television experience presented to date in professional cycling.
There are several things that do not add up in this lawsuit
Posted: April 7, 2011 Filed under: Ski Area Leave a comment$2 Million for a teenager who died because she was pushed to ski a harder slope?
A family is suing Blue Mountain Ski Area for $2 million dollars for the death of their 17 year old daughter. The lawsuit claims the teenager was forced to ski on a hill she felt she was not ready for. The claim also states the student was given less than an hour’s ski lessons.
The suit is against the ski area, the school, the teachers and the ski instructors. Allegedly, the schools phys ed teacher encouraged her to ski a tougher hill.
The article says:
Reurink, who was wearing a helmet, lost control on the slope and hit a tree at the bottom, dying instantly, the statement of claim alleged.
“She hit with such force her aorta and brain stem were severed….
Most groups from a school go package deals where everything is negotiable. The rental equipment, the lift tickets, meals and how long the ski lesson is are part of the package and all subject to dozens of different options.
The articles states:
However, O’Neill said Reurink’s sticker allowed her to ski only green and blue runs — not the black or double black diamond runs. Ski runs are marked green for easy, blue for intermediate and black for most difficult or advanced. Double black diamond runs are for experts only.
Some ski areas sell lift tickets that only allow access to certain lifts. That is not done to restrict the person from skiing other areas that is done to save money. You pay less money to ski less of the mountain…..or hill in this case. I’ve been to Blue Mountain a great resort with one of the best management teams I’ve ever dealt with, but it is only a hill.
So if the deceased student was on a black diamond run, she had snuck over to the run because she was on a restricted lift ticket.
First how are students going to do anything, unless they are encouraged or even shoved a little to get them moving and learning.
Second $2 million dollars?
It is terrible for the family of the student and the resort to deal with this tragedy. However, this lawsuit does not make a lot of sense except for this one line in the article. “…that the teenager’s parents and sisters launched the $2-million lawsuit to get answers about why she died.”
See Family seeks $2M for teen’s ski death at Blue Mountain.
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: http://www.recreation-law.com
Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Blue Mountain, #Ski Area, #litigation, #London, #Ontario, # Reurink, # London’s Catholic Central High School,
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Whitewater Rafting in Colorado on the Poudre River brings in money.
Posted: April 5, 2011 Filed under: Whitewater Rafting Leave a commentPoudre River whitewater rafting brought $11 million to the region in 2010.
2010 was the third best year for whitewater rafting in the last 20 years. 37,400 people rafted on the Poudre River an increase of 400 over the prior year.
Recreation can still be great, even when the economy is bad.
$4.2 million in direct money from rafting on the Poudre translates into $11 million overall.
See Rafting on the Poudre River brought $11 million to region in 2010.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
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Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Posted: April 4, 2011 Filed under: Assumption of the Risk, Challenge or Ropes Course Leave a commentThis decision describes how a ropes (challenge) course is viewed by participants.
Allison v. Charter Rivers Hospital, Inc, 334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43
In this case, the plaintiff was in a treatment program for an addiction to prescription drugs. As part of the treatment program on day five she participated in a ropes course where she fell and was injured. She sued the hospital for her injuries. The defendant hospital used the defense of assumption of the risk.
In this case, the plaintiff had led an inactive lifestyle prior to entering the treatment program. When told of the ropes’ course she asked questions of the facilitator and other participants who had not participated in the ropes’ course.
The plaintiff was told that the course was designed to build trust and self-confidence. The group with the plaintiff was supposed to catch her if she fell on any part of the course. The plaintiff fell. The group did not catch her, and she suffered an injury to her knee.
The court stated under South Carolina law, to prevail on the defense of assumption of the risk, the defendant must prove the four elements of the defense:
(1) the plaintiff must have knowledge of the facts constituting a dangerous condition;
(2) the plaintiff must know the condition is dangerous;
(3) the plaintiff must appreciate the nature and extent of the danger; and
(4) the plaintiff must voluntarily expose himself to the danger.
The appellate court found the plaintiff assumed the risk of the activity which caused her injuries. She knew she could decline to participate because she had talked to two other patients who had declined. She knew the risk was of the other patients not catching her if she fell. Finally, the court found that she was the last one on the course, so she knew of the risk because she had watched other patients on the course.
This case is also doing a great job of showing how facts of an activity are interpreted by the court. Facts are told by the injured plaintiff to an attorney. The attorney investigates the claims and facts and discovers additional information from the defendant. That information along with the defendant’s version of the facts are then argued both in writing and sometimes orally in front of the court. Consequently, reviewing an appellate decision the facts stated by the court seem to have no relationship to how an activity or trip actually is run.
If you understand how a ropes, or challenge course works consider these statements by the court about the facts of the case.
A “ropes course” is an activity used to build trust and self-confidence. In the activity involved in this case, the participants walked across a rope strung between trees while holding onto an overhead wire. While one participant crosses the rope, four others follow on the ground, acting as spotters to catch the participant if he or she falls.
Katherine explained the course involved walking on a rope between three trees and that the activity would help Allison to build trust.
Katherine asked them to raise their hands and pledge to at least attempt the activity. The group warmed up with a game similar to tag.
Katherine asked her to at least try and assured her that if she fell, the group would catch her.
According to Allison, the purpose of the ropes course was to build trust and self-confidence. The object of the exercise was for the group to catch the participant as she fell, thereby building the participant’s trust in the group.
This is probably one of the best decisions I’ve ever seen where the court’s interpretation of what happened closely follows how the activity actually occurs. Nevertheless, even here you can see some discrepancies in what happens on the majority of courses every day.
So?
1. Use a release. Relying on assumption of the risk is a risky defense. It is rare that a court will rule on assumption of risk on motions. Normally, that is something left to the decision of the jury.
2. Proving assumption of the risk is difficult. However, you should make assumption of the risk part of your defense. If for any reason your release is thrown out of the case, then assumption of the risk may be your best defense.
A. Incorporate assumption of the risk language in your release. You can then use the release to prove the plaintiff knew of the risks because she, or he read and signed the release.
B. Incorporate in your release, language that requires or that your guest acknowledge reviewing your website. Information on your website can show the risks and educate your guests of the risks.
C. Fully inform your guests of the risks of the activity. Safety talks, photographs and answering your guest’s questions can all assist in achieving this goal.
D. Ask the guest if they have previous experience in your activity. They may forget that they have rafted or climbed after they are injured. However, they are eager to tell or write down their experience prior to the trip. Experience in the activity or similar activities is proof of assumption of the risk.
Always be prepared for the court not to understand what you do. This may require that you bring in a video of your activity to explain to the court and the jury exactly what your activity is and why people enjoy it. This may also show what the actual risk is, rather than the death defying act the plaintiff may portray your activity as.
So Now What?
Make sure your information, your website, your brochure help educates your guests in the risks of the activity. Always have the defense of assumption of the risk available to use if necessary.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
This Saturday another Spokesmen Podcast will be up 4/2/11
Posted: April 1, 2011 Filed under: Cycling Leave a commentIf you are into cycling or just like to, tune into the Spokesmen.
The Spokesmen are a group of cycling professional, fanatics and interesting people rolled into one podcast every other weekend.
- David Bernstein
- Carlton Reid
- Tim Grahl
- Tim Jackson
- Donna Tocci
- Richard Masoner
- Jeff Helfand at VeloReviews
- Richard Kelly
- DL Byron
- Bob Roll
- Chris Smith
- VeloCast
- Neil Browne
- District Cycling
- Jim Moss, Esq.
Listen live at The Spokesmen Live at Upstream.
Or tune in one of these ways:
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Reno approves 167’ climbing wall
Posted: March 31, 2011 Filed under: Climbing Wall Leave a commentThe wall will be built on the exterior of Fitzgerald’s hotel.
The Reno City Planning commission approved a 167’ climbing wall on the exterior of Fitzgerald’s hotel. The climbing wall will overlook the Reno Arch.
Local businesses as well as climbers are excited about the idea and the possibility of revitalizing downtown Reno.
See Tallest Rock-Climbing Wall in the World? Reno Says Yes
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Ski Area Fatalities -2010-11 Ski Season to date: 3/26/11
Posted: March 30, 2011 Filed under: Ski Area Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
Interesting Facts:
Three tree well deaths, the same as last year (2009-10) and one more than 2008-09 season
The last 45 days have all been skier deaths
You can do your own helmet analysis, however, it still appears that helmets do not help with regard to fatalities.
Most causes of death are speculation. Very few reports can be found with autopsy reports.
I can not see anything that would indicate how or why people are dying, other than hitting stationary objects (trees).
Yellow Highlighted Fatality was an employee at work
If this information is incorrect or incomplete please let me know. Thanks.
| # | Date | Resort | State | Age | Skier Ability | Ski/ Tele /Boarder | Cause of Death | Helmet |
| 1 | 11/22 | Wolf Creek Ski Area | CO | 41 | Expert | Skier | ||
| 2 | 12/2 | Snowmass | CO | 22 | Skier | Yes | ||
| 3 | 12/12 | Cannon Mountain | NH | 18 | Skier | No | ||
| 4 | 12/18 | Wolf Creek Ski Area | CO | 35 | Expert | Boarder | hyperextended his neck backward, rupturing an artery | |
| 5 | 12/19 | Cannon Mountain ski resort | NH | 31 | Boarder | |||
| 6 | 12/21 | Beaver Creek Ski Area | CO | 59 | Skier | blunt force trauma | Yes | |
| 7 | 12/24 | Hogadon Ski Area | WY | 5 | Skier | massive chest injuries | Yes | |
| 8 | 12/24 | Hogadon Ski Area | WY | 22 | Boarder | massive chest injuries | No | |
| 9 | 12/26 | Aspen Mountain | CO | 77 | Expert | Skier | suffering a broken | |
| 10 | 12/27 | Mountain High ski resort | CA | 24 | Beginner | Boarder | No | |
| 11 | 12/28 | Discovery Ski Area | MT | 21 | Expert | Skier | blunt force trauma injuries | Yes |
| 12 | 12/29 | China Peak Ski Area | CA | 29 | Boarder | asphyxiation | ||
| 13 | 12/29 | Whitefish Mountain Resort | MT | 16 | Skier | Taken off life support 1/2/11 | ||
| 14 | 1/2 | Keystone Ski Resort | CO | 38 | Boarder | blunt force trauma | Yes | |
| 15 | 1/9 | Whitefish Mountain Resort | MT | 29 | Boarder | Yes | ||
| 16 | 1/9 | Snowbowl | AZ | 22 | Boarder | |||
| 17 | 1/11 | Heavenly Mountain Resort | 57 | blunt force trauma to the left side of her chest | ||||
| 18 | 1/12 | Jackson Hole Mountain Resort | WY | 18 | Skier | Instantly upon hitting tree | ||
| 19 | 1/15 | Sugarloaf | ME | 16 | Skier | Yes | ||
| 20 | 1/16 | Windham Mountain | NY | 18 | Beginner | Skier | Extensive Head Injuries | No |
| 21 | 1/19 | Mt. Rose Resort | NV | 15 | Boarder | Head injuries | No | |
| 22 | 1/22 | Granlibakken Resort | CA | 22 | Boarder | blunt force trauma | ||
| 23 | 1/26 | Keystone Resort | CO | 22 | severe blunt force trauma | No | ||
| 24 | 1/27 | Anthony Lakes Ski Area | OR | 24 | collided with a tree and suffered head and neck injuries | |||
| 25 | 1/28 | Crystal Mountain | WA | 67 | severed his spinal cord | |||
| 26 | 1/30 | Mount Hood Meadows Ski Resort | OR | 41 | Skier | No | ||
| 27 | 2/4 | Hunt Hollow | NY | 54 | Yes | |||
| 28 | 2/4 | Hunt Hollow Ski Club | NY | 54 | Skier | Yes | ||
| 29 | 2/6 | Eldora Mountain Resort | CO | 35 | Expert | Boarder | ||
| 30 | 2/9 | Sun Valley Resort | ID | 49 | Skier | trauma to his head and chest | No | |
| 31 | 2/11 | Windham Mountain Ski Resort | NY | 69 | Novice | Skier | extensive head injuries | No |
| 32 | 2/11 | Cooper Mountain Ski Area | CO | 21 | fractured skull, a fractured right knee, a broken leg, a broken wrist, many facial fractures and lacerations to his liver and kidney | |||
| 33 | 2/12 | Snowshoe Mountain Resort | WV | 22 | ||||
| 34 | 2/16 | Sun Valley Resort | ID | |||||
| 35 | 2/17 | The Yellowstone Club | MT | 45 | ||||
| 36 | 2/18 | Spirit Mountain | WI | 12 | Skier | |||
| 37 | 2/20 | Mount Shasta | CA | 23 | ||||
| 38 | 2/23 | Arapahoe Basin | CO | 32 | Skier | blunt force trauma to the chest | No | |
| 39 | 2/27 | Northstar-at-Tahoe | CA | 30 | Boarder | impact of hitting a tree or suffocation from landing headfirst in the snow bank | No | |
| 40 | 2/28 | California’s Kirkwood Ski area | CA | 25 | Skier | internal bleeding | ||
| 41 | 3/11 | Snowmass Mtn | CO | 73 | Skier | multiple systems trauma | ||
| 42 | 3/14 | Beaver Creek Ski Area | CO | 18 | Expert | Skier | died from head trauma | Yes |
| 43 | 3/16 | Welch Village Ski Area | MN | 65 | Skier | |||
| 44 | 3/16 | Alyeska Resort | AK | 53 | Skier | |||
| 45 | 3/17 | Howelsen Hill Ski Area | CO | 19 | Skier | |||
| 46 | 3/4 | Blue Mountain Ski Resort | PA | 73 | Skier | head injury | Yes | |
| 47 | 3/22 | Eldora Mountain Resort | CO | 21 | Skier | No | ||
| 48 | 3/26 | West Mountain Ski Resort | NY | 17 | Skier | head injuries and went into cardiac arrest | No |
First Update: Ski Area Fatalities -2010-11 Ski Season
Second Update: Ski Area Fatalities -2010-11 Ski Season to date: 1/5/1
Third Update: Ski Area Fatalities -11 Ski Season to date: 1/14/11
Fourth Update: Ski Area Fatalities 2010 -11 Ski Season to date: 3/2/11
What do you think? Leave a comment.
Copyright Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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New Ski Area planned for Alaska
Posted: March 29, 2011 Filed under: Ski Area 1 CommentAlaska’s Manitoba Mountain could be new home to a “community” ski area.
The “Mountain Rider’s Alliance” or MRA is planning a ski area with 2500’ of vertical with three lifts. MRA whose mission is “to develop environmentally-friendly, rider-owned ski areas throughout the world” is planning the project.
The major draw of the resort will be the out of bounds slopes available from the top of the lifts through a gate.
One key of the planners is to make the resort community owned. Shares of the resort maybe available for as little as $500.00.
See MRA plans new ski area in Alaska
What do you think? Leave a comment.
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Study by Vermont Medical Student wants to Study Rock Climbing Injuries.
Posted: March 25, 2011 Filed under: Rock Climbing Leave a commentInjuries in Rock Climbing Survey
Information Sheet
This is an information sheet describing the survey.
Just as an FYI: If you are under 18 or have spent less than half of your climbing time climbing sport or bouldering, you won’t be able to complete this survey. I plan on coming back later and looking other climbing disciplines, but right now I’m focused mainly on sport/bouldering. I’m including this disclaimer here after some initial survey-takers were surprised to be disqualified early on in the survey. If you are 18 or older and have spent at least half your climbing time climbing sport or bouldering, read on!
Title: Survey of Chronic Injuries in Rock Climbers
Principle Investigator: Alex Folkl
Faculty Sponsor: Rodger Kessler
You are being invited to take part in a research study on the prevalence, causes, and consequences of chronic injuries in rock climbers. This study is being conducted by Alex Folkl, a fourth-year medical student at the University of Vermont College of Medicine.
You will be asked to answer 16 questions, which should take less than five minutes to complete. These include demographic questions (age, gender), and questions about climbing and injury history.
The information being collected in this survey is anonymous. We hope that study results will fill gaps in medical knowledge about injuries in climbers, and in so doing will allow you to anticipate what kinds of chronic injuries to be on guard for the longer you climb, and what kinds of lifestyle modification may be necessary to cope with those injuries.
Your participation in this study is fully voluntary and you may choose not to participate. The results of this study may be published. However, the information obtained during this study is confidential, and as we will not ask for your name or any identifying information, you will remain anonymous in any publications.
If you have any questions concerning your participation please contact Alex Folkl at
rockclimbingsurvey@gmail.com. Questions concerning your rights as a participant in this research can be directed to Nancy Stalnaker, Director of the Research Protections Office at the University of Vermont, by calling (802) 656-5040. Your consent to participate is implied upon the completion of the survey.
Thank-you.
To take the survey click here!
What do you think? Leave a comment.
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SkiCo being sued for employee hitting guest
Posted: March 24, 2011 Filed under: Ski Area Leave a commentSkiCo Lift Operator was allegedly inspecting the lift by riding the lift line?
The plaintiff was attending a ski coaching clinic at Buttermilk Ski Area in March of 2009. The group had stopped as most ski schools do when the plaintiff was hit suffering a knee injury.
It’s hard to sue lift operators because they have no money. However, if you argue the lift operator was working then you can drag their employer, the ski area into the lawsuit.
See Boston woman sues SkiCo after injury during a ski coaching clinic
What do you think? Leave a comment.
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You never know what really happened or what was really said, but still……
Posted: March 23, 2011 Filed under: Criminal Liability, Skier v. Skier Leave a commentLetter to the editor about a boarder v. skier collision at Copper Mountain Ski area creates more questions than answers..
Al Thomas wrote a letter to the editor of the Summit Daily. The Summit Daily is the local newspaper for Summit County where Copper Mountain, Keystone, Breckenridge and Arapahoe Basin are located. Skiing/boarding is big in that county. Al wrote about the issues and injuries he received when he was hit by a snowboarder while skiing at Copper Mountain. He appears to be as mad at Copper Mountain as the Snowboarder.
Mr. Thomas had stopped at a slow sign to wait on a friend when he was hit by a snowboarder. He says 10 people witnessed the accident. This paragraph is the confusing part of the letter.
A requested ski incident report was furnished to me by Copper Mountain. I met with Charles Payne “Risk and Safety.” I asked if the other party had been cited. Mr. Payne explained that unless a Copper employee was an actual eye witness to an event, it was Copper’s policy not to issue any citations. In my case the other party admitted to skiing in excess of 10 mph in a slow-ski zone and to having at least one alcoholic beverage before the incident. I wonder if this person was impaired.
First of all, Copper Mountain cannot issue a citation, ticket to anyone. Only law enforcement, in this case the Summit County Sheriff can do that. However, Copper Mountain can turn the information over to law enforcement for them to make the decision if the events rise to the level of a criminal act. If ten people watched the accident, that is a lot of witness statements. Additionally, the snowboarder admitted skiing too fast.
The statement “unless a Copper employee was an actual eye witness to an event”, if true is confusing. It is not Copper’s responsibility, and I seriously doubt Copper is only going to do something if an employee witnesses an event.
The Colorado Skier Safety Act specifically allows lawsuits between people who have collided on the slopes. (Contrary to California which says collisions are a risk of skiing.)
C.R.S. 33-44-109(1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability. Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.
The statute specifically protects the ski area and places any liability on other people on the slope.
A ski area may revoke a skier’s skiing (and boarding) privileges in a careless and reckless manner.
C.R.S. 33-44-108(5) The ski area operator, upon finding a person skiing in a careless and reckless manner, may revoke that person’s skiing privileges. This subsection (5) shall not be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or from another skier’s carelessness or recklessness.
In this case Copper Mountain could have removed the boarder who caused the collision from the slopes and taken any ski pass, daily or seasonal from him or her. That is the extent of what a Ski Area in Colorado may do. That usually can be done by any employee, definitely by the ski patrol and management and easy to do with the severity of the injuries and ten witnesses.
Whether or not criminal charges should have been pressed against the snowboarder is totally out of the control of the ski area. Copper Mountain’s ability to do anything ends with the confiscation of the ski pass.
See Al Thomas: Ski area need better safety enforcement.
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Law to make Snowboarding official sport of Vermont
Posted: March 22, 2011 Filed under: Skiing / Snow Boarding Leave a commentIt’s nice to know that some states have everything under control and don’t have anything else to do. Besides, they only snowboard there; there is no skiing, tele, backcountry, or rondenee!
See Legislation to make snowboarding Vermont’s official sport
Now I understand the issues of motivating students; in this case, 6th graders who came up with the idea. They had been researching issues and found that Vermont did not have an official state sport. However, in some cases, you can make more people madder than happy with this issue.
Besides, what happened to suing resorts? Vermont has been the first and continues to be one of the leaders in this “sport!”
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Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351
Posted: March 21, 2011 Filed under: Cycling, Legal Case, Washington | Tags: bicycle, Carbon Fiber, Cycling, Defect, Defective Product, Front Fork, Products Liability Leave a commentTo Read an Analysis of this decision see: Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351
Monika Johnson, Respondent, v. Recreational Equipment, Inc., Petitioner.
No. 65463-2-I
Court of Appeals of Washington, Division One
2011 Wash. App. LEXIS 351
January 6, 2011, Oral Argument
February 7, 2011, Filed
PRIOR HISTORY: [*1]
Appeal from King County Superior Court. Docket No: 09-2-14346-3. Judgment or order under review. Date filed: 05/10/2010. Judge signing: Honorable Steven C Gonzalez.
DISPOSITION: Affirmed.
SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: Action for damages for injuries sustained while riding a bicycle. The plaintiff brought the action as a product liability claim against the seller of the bicycle. The plaintiff alleged that her injuries were caused by a defect in the carbon fiber front fork of the bicycle. Both the bicycle and the carbon fiber fork, although not manufactured by the defendant, were marketed under the defendant’s brand name.
Nature of Action: Action for damages for injuries sustained while riding a bicycle. The plaintiff brought the action as a product liability claim against the seller of the bicycle. The plaintiff alleged that her injuries were caused by a defect in the carbon fiber front fork of the bicycle. Both the bicycle and the carbon fiber fork, although not manufactured by the defendant, were marketed under the defendant’s brand name.
Superior Court: The Superior Court for King County, No. 09-2-14346-3, Steven C. Gonzalez, J., on May 10, 2010, denied the defendant’s motion to be permitted to seek to have the jury allocate fault to the manufacturer of the carbon fiber fork and granted the plaintiff’s motion for summary judgment on the issue of strict liability.
Court of Appeals: Holding that the defendant’s statutory vicarious liability for the manufacturing defect precludes a right to have fault allocated to the manufacturer and that the factual averments in the record were sufficient for the trial court to rule on the issue of strict liability as a matter of law, the court affirms the trial court’s rulings.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
[1] Statutes — Construction — Review — Standard of Review. Questions of statutory interpretation are reviewed de novo.
[2] Statutes — Construction — Legislative Intent — In General. A court’s primary duty in interpreting a statute is to implement legislative intent.
[3] Statutes — Construction — Unambiguous Language — Statutory Language — In General. The meaning of an unambiguous statute is derived from the statute’s plain language.
[4] Statutes — Construction — Superfluous Provisions. A statute must be construed so that no provision is rendered meaningless or superfluous.
[5] Products Liability — Defect — Seller Liability — Own Brand Product — Statutory Provisions — Nature of Liability — Vicarious Liability. RCW 7.72.040(2)(e) holds a product seller liable for a manufacturing defect in a product marketed under the product sellers’s own trade name or brand name even though the manufacturer necessarily is the entity that actually caused the defect. The statute creates a form of vicarious liability that enables a claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own.
[6] Statutes — Construction — Meaningful Interpretation — In General. Because a court assumes that the legislature does not engage in meaningless acts, a statute should not be construed as if the legislature has.
[7] Statutes — Repeal — By Implication — Disfavored Status. Implied repeals of statutes are disfavored; courts have a duty to interpret statutes so as to give them effect.
[8] Products Liability — Defect — Seller Liability — Own Brand Product — Allocation of Fault — To Manufacturer — In General. A product seller that is subject to vicarious liability for a manufacturing defect in a product under RCW 7.72.040(2)(e) because the product is marketed under the product sellers’s own trade name or brand name does not have a right to an allocation of fault to the manufacturer on the same manufacturing defect claim. This rule is not inconsistent with the law of comparative fault as set forth in chapter 4.22 RCW because RCW 7.72.040(2)(e) provides that the seller’s proportionate amount of damages is the full amount of damages, in which case no apportionment of fault is necessary to ensure that the seller pays only its share of damages.
[9] Products Liability — Defect — Seller Liability — Own Brand Product — Allocation of Fault — Private Contract. The rule of RCW 7.72.040(2)(e) that a product seller can be vicariously liable for a manufacturing defect in a product marketed under the product seller’s own trade name or brand name suggests a legislative intent to leave to the marketplace the means of allocating risk between commercial entities. The Washington Product Liability Act (ch. 7.72 RCW) presupposes a contractual relationship between the product seller and the manufacturer, with or without an intermediary supplier, and, rather than legislatively imposing a means of risk allocation, assumes that sophisticated commercial parties will contract to allocate risk between themselves.
[10] Judgment — Summary Judgment — Burden on Moving Party — Absence of Factual Issue. In a summary judgment proceeding, the party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact.
[11] Judgment — Summary Judgment — Determination — Single Conclusion From Evidence. Summary judgment is appropriate if reasonable persons could reach only one conclusion from the facts submitted.
[12] Judgment — Summary Judgment — Issues of Fact — Material Fact — What Constitutes. For purposes of a summary judgment proceeding, a material fact is a fact on which the outcome of the litigation depends, in whole or in part.
[13] Judgment — Summary Judgment — Affidavits — Sufficiency — Evidentiary Facts. An affidavit submitted in response to a motion for summary judgment does not raise a genuine issue of fact unless it sets forth facts that are evidentiary in nature, i.e., information as to what took place–an act, an incident, a reality–as distinguished from supposition or opinion. Ultimate facts, conclusions of fact, and conclusory statements of fact or legal conclusions are insufficient to raise a question of fact.
[14] Products Liability — Defect — Strict Liability — Manufacturing Defect — Deviation From Manufacturer’s Specifications or Standards — Proof — Expert Testimony — Sufficiency. In a strict liability product liability action alleging that a product was not reasonably safe in construction, where the manufacturing defect is such that no conceivable performance standard would call for the product to be manufactured that way, expert testimony that such defect caused the product’s failure can be sufficient to establish that the product deviated in some material way from the manufacturer’s design specifications or performance standards, or deviated in some material way from otherwise identical units of the same product line, within the meaning of RCW 7.72.030(2)(a). Direct evidence of the manufacturer’s design specifications or performance standards is not required in this situation.
[15] Judgment — Summary Judgment — Burden on Nonmoving Party — Averment of Specific Facts — Speculation. A party opposing a motion for summary judgment cannot rely on speculation and conjecture to raise a genuine issue of material fact.
[16] Trial — Bifurcation of Issues — Review — Standard of Review. A trial court’s decision to order separate trials is reviewed for abuse of discretion.
[17] Products Liability — Defect — Seller Liability — Own Brand Product — Contribution — Third Party Action — Against Manufacturer — Bifurcation of Trial. In a product liability action alleging that a product seller is vicariously liable for a manufacturing defect in a product marketed under the product seller’s own trade name or brand name, the trial court may properly rule that any contribution claim by the seller against the product’s manufacturer must be tried separately because joining the manufacturer as a third party defendant would delay and prejudice the plaintiff’s claim against the seller. The trial court may properly bifurcate the claims despite negative consequences for the seller’s contribution rights.
COUNSEL: V.L. Woolston and Paul S. Graves (of Perkins Coie LLP), for petitioner.
Robert L. Christie, Jason M. Rosen, and Thomas P. Miller (of Christie Law Group PLLC), for respondent.
JUDGES: AUTHOR: Stephen J. Dwyer, C.J. We concur: Michael S. Spearman, J., C. Kenneth Grosse, J.
OPINION BY: Stephen J. Dwyer
OPINION
¶1 Dwyer, C.J. — [HN1] The Washington product liability act (WPLA), chapter 7.72 RCW, sets forth a statutory form of vicarious liability whereby a product seller assumes the liability of a manufacturer where a product is marketed under the seller’s brand name. Because permitting the product seller to attribute fault to the actual manufacturer would abrogate this provision of the WPLA, principles of comparative fault do not apply, notwithstanding the possibility that statutory contribution may thereby be precluded. Such a result is not in contravention of our state’s statutory comparative fault system, as commercial entities [*2] can themselves contract to allocate liability where the WPLA’s vicarious liability provision applies.
¶2 Accordingly, we affirm the trial court’s ruling that Recreational Equipment, Inc. (REI) is not entitled to seek to allocate fault to the manufacturer of the defective product that REI branded as its own. We also conclude that the trial court erred neither by finding REI strictly liable for the injuries caused by the defective product nor by ruling that any third party claim by REI against the manufacturer would be severed for trial.
I
¶3 In November 2007, Monika Johnson was riding her bicycle along a downtown Seattle sidewalk when the front carbon fiber fork of the bicycle, which attaches the bicycle’s front wheel to its frame, “sheared from the steer tube suddenly and without warning.” Clerk’s Papers (CP) at 57. The fork and front wheel detached from the frame of the bicycle, and Johnson fell face first onto the sidewalk, sustaining serious injuries.
¶4 Johnson brought an action against REI pursuant to the WPLA, alleging that her injuries were caused by a defect in the carbon fiber fork. Both the bicycle and the carbon fiber fork, although not manufactured by REI, were marketed under REI’s [*3] brand name, Novara. Johnson had purchased the Novara brand bicycle from REI in 2002. In 2005, she had taken the bicycle to REI for repairs following a collision with a car door. The Novara carbon fiber fork that fractured in November 2007 was installed on the bicycle during those 2005 repairs.
¶5 Johnson did not name the manufacturer of the fork, Aprebic Industry Company, Ltd., as a defendant in the action. REI filed a motion for partial summary judgment, seeking a ruling that it was entitled to ask the jury to allocate fault to Aprebic pursuant to Washington’s comparative fault system, set forth in chapter 4.22 RCW, or, in the alternative, requesting leave to file a third party complaint against Aprebic. In response, Johnson filed a motion for partial summary judgment, asserting that REI was strictly liable for her injuries.
¶6 In support of her summary judgment motion, Johnson submitted to the trial court the declaration of Gerald Zaminski, a professional engineer, who examined the bicycle and the carbon fiber fork and destructively tested the fork. He found that the section of the fork where the fracture occurred “was manufactured using a relatively small number of [carbon fiber] layers.” [*4] CP at 106. He concluded that “[t]he small number of carbon fiber layers and their orientation interface resulted in the nucleation and propagation of cracking” and that this cracking “led to the catastrophic fracture and failure of the fork.” CP at 106. According to Zaminski, the thickness of the carbon fiber layering where the fracture occurred was “just a fraction of the thickness of the carbon fiber layup elsewhere in the fork and steerer tube.” CP at 106. He stated that the carbon fiber layers also “displayed voids, gaps, separations, and kinks, which are all indicative of defective manufacturing.” CP at 106. Zaminski also observed that the carbon fiber layers at the point of the fracture were “starved of epoxy,” making them “more susceptible to failure.” CP at 107. Zaminski declared that “[t]he orientation and makeup of the carbon fiber layers can only occur during manufacturing; they are not defects that can occur after the product has been manufactured.” CP at 107.
¶7 In response, REI submitted the declaration of David Mitchell, also a professional engineer, who inspected the bicycle and carbon fiber fork. Mitchell asserted that “there is presently insufficient information to rule [*5] out the accumulation of prior damage to the front fork as the cause of ultimate fork separation.” CP at 178. He stated that “the nature of the fracture was not determined” and that additional laboratory testing should be conducted, including loading an examplar fork to determine its breaking strength. CP at 177. He also noted that the bicycle itself was “clearly a high mileage vehicle” that displayed “substantial wear and tear.” CP at 176. Mitchell further suggested that a 2006 collision involving the bicycle, in which the rear wheel was damaged, could have contributed to the fork’s fracture. He opined that “[i]f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178.
¶8 The trial court denied REI’s motion to be permitted to seek to have the jury allocate fault to Aprebic and granted Johnson’s motion for summary judgment on the issue of strict liability. The trial court ruled that “[d]efendant REI has the liability of a ‘manufacturer’ as set forth in RCW 7.72.040(2)(e) and is strictly liable as a matter of law for all damages and injuries that [*6] plaintiff sustained.” 1 CP at 196. The trial court further determined that the fact that Aprebic is the actual manufacturer of the fork has no bearing on REI’s liability to Johnson, as “REI has the same liability as the actual manufacturer.” CP at 196. The trial court concluded that Johnson could look to REI exclusively for compensation for her injuries. Although the trial court denied REI’s request to attribute fault to Aprebic, it did grant to REI leave to join Aprebic as a third party defendant. However, the trial court noted that if REI did so, the court would “require separate trials under CR 20(b) to prevent delay and prejudice to [Johnson].” CP at 198.
1 The trial court noted that its ruling would not “preclude REI from asserting that [Johnson] was contributorily negligent if any facts to support this are developed.” CP at 196.
¶9 REI sought discretionary review of the trial court’s rulings. A commissioner of this court granted discretionary review of the trial court’s rulings on three issues: (1) whether comparative fault principles apply to Johnson’s claims, (2) whether REI is strictly liable for Johnson’s injuries, and (3) whether any third party claim brought by REI against Aprebic [*7] should be severed for trial.
II
¶10 REI first contends that the statutory comparative fault system adopted by our legislature in 1986 demands that it be permitted to ask the jury to allocate fault to Aprebic for the fork’s manufacturing defect. Because the WPLA expressly provides that REI, by selling the defective product under its own brand name, assumes the liability of the manufacturer, we disagree.
[1] ¶11 [HN2] Questions of statutory interpretation are reviewed de novo. Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81, 88, 173 P.3d 959 (2007). Whether the WPLA permits a product seller that brands a defective product as its own to attribute fault to the actual manufacturer is a question of statutory interpretation; thus, we review the question de novo.
[2-4] ¶12 [HN3] Our primary duty in interpreting a statute is to discern and implement legislative intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Where a statute is unambiguous, we derive its meaning from the plain language of the statute. Campbell & Gwinn, 146 Wn.2d at 9-10. Moreover, we must construe statutes such that no provision is rendered meaningless or superfluous. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).
¶13 [HN4] In [*8] 1981, our legislature codified the law of product liability by enacting the Washington product liability act (WPLA), chapter 7.72 RCW. The WPLA distinguishes between and imposes different standards of liability on manufacturers and product sellers for harm caused by defective products. See RCW 7.72.030, .040. As a general rule, manufacturers of defective products are held to a higher standard of liability, including strict liability where injury is caused by a manufacturing defect or a breach of warranty. RCW 7.72.030(2). 2 In contrast, product sellers are ordinarily liable only for negligence, breach of express warranty, or intentional misrepresentation. RCW 7.72.040(1). In limited circumstances, however, product sellers are subject to “the liability of a manufacturer,” including where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e). 3
2 RCW 7.72.030(2) provides, in pertinent part:
[HN5] (2) A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s [*9] express warranty or to the implied warranties under Title 62A RCW.
(a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
3 The limited circumstances in which a product seller assumes the liability of a manufacturer are set forth in RCW 7.70.040(2), which provides:
[HN6] (2) A product seller, other than a manufacturer, shall have the liability of a manufacturer to the claimant if:
(a) No solvent manufacturer who would be liable to the claimant is subject to service of process under the laws of the claimant’s domicile or the state of Washington; or
(b) The court determines that it is highly probable that the claimant would be unable to enforce a judgment against any manufacturer; or
(c) The product seller is a controlled subsidiary of a manufacturer, or the manufacturer is a controlled subsidiary of the product seller; or
(d) The product seller provided the plans or specifications for the manufacture or preparation of the product and such [*10] plans or specifications were a proximate cause of the defect in the product; or
(e) The product was marketed under a trade name or brand name of the product seller.
[5-9] ¶14 [HN7] The WPLA explicitly provides that “[a] product seller, other than a manufacturer, [has] the liability of a manufacturer” where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e). Although, absent this provision, only a manufacturer could be held liable for a manufacturing defect, RCW 7.72.030(2), our legislature has chosen to hold particular product sellers liable for such acts–despite the fact that the manufacturer of the product is necessarily the entity that actually caused the defect where a product is defectively manufactured.
¶15 Thus, [HN8] by imposing liability on sellers of branded products for manufacturing defects–which, inevitably, are caused by acts of the manufacturer–our legislature created a statutory form of vicarious liability that enables the claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own. See 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law & [*11] Practice, § 3.1, at 116 (3d ed. 2006) (“In contrast to direct liability, which is liability for breach of one’s own duty of care, vicarious liability is liability for the breach of someone else’s duty of care.”). Because a seller of a branded product is vicariously liable for manufacturing defects, permitting REI–the product seller liable as the manufacturer pursuant to RCW 7.72.040(2)(e)–to seek to allocate fault to Aprebic–the actual manufacturer of the defective product–would undermine the statutory scheme of the WPLA.
¶16 REI incorrectly contends that RCW 7.72.040(2)(e), rather than creating a statutory form of vicarious liability, instead merely imposes on sellers of branded products the liability standard to which manufacturers are held. Thus, according to REI, although product sellers are ordinarily liable only for negligence, breach of an express warranty, or intentional misrepresentation, pursuant to RCW 7.72.040(1), sellers of branded products may also be found liable, pursuant to RCW 7.72.040(2)(e), for design and construction defects, inadequate warnings, or breach of an implied warranty–acts for which generally only manufacturers are held liable. See RCW 7.72.030(1), (2). For [*12] this reason, REI argues that it should be permitted to attribute fault to Aprebic. This contention fails for two reasons.
¶17 First, [HN9] had our legislature merely imposed on sellers of branded products the liability standard of manufacturers, as REI contends that it did, the legislature would have engaged in a meaningless act. RCW 7.72.030(2) provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” The statute defines a manufacturer as “a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product … before its sale to a user or consumer.” RCW 7.72.010(2). Here, REI, because it does not design, make, fabricate, construct, or remanufacture bicycle forks, could never be found by a trier of fact to have acted as an actual manufacturer. Thus, it could never be proved to have acted in such a way so as to expose it to direct liability as a manufacturer. Indeed, were it otherwise, the legislature would not have needed to enact RCW 7.72.040(2)(e)–by acting as a manufacturer, REI would be subject to direct [*13] manufacturer liability pursuant to RCW 7.72.030(2), rendering RCW 7.72.040(2)(e) superfluous. We will not assume that the legislature, by enacting RCW 7.72.040(2)(e), engaged in a meaningless act. See JJR Inc. v. City of Seattle, 126 Wn.2d 1, 10, 891 P.2d 720 (1995) (“When interpreting statutes, the court must assume that the Legislature does not engage in meaningless acts.”).
¶18 Similarly, [HN10] construing RCW 7.72.040(2)(e) such that a product seller could seek to allocate fault to a manufacturer would render the provision itself meaningless, as the product seller could always avoid the allocation of any fault to it simply by attributing fault to the actual manufacturer. See Whatcom County, 128 Wn.2d. at 546 (noting that statutes must be construed such that all language is given effect and no provision in rendered meaningless or superfluous). Certainly, as a factual matter, where a manufacturing defect is at issue, the manufacturer–not the product seller–actually caused the defect. Thus, were allocation of fault principles to apply, the manufacturer would necessarily be 100 percent responsible for the defectively manufactured product. Also necessarily, the product seller would avoid all such [*14] liability. Such a result would contravene our legislature’s clear intent that a product seller that brands a product as its own assumes the liability of the manufacturer. 4
4 The legislative history of the WPLA includes a statement that [HN11] where the nonmanufacturing product seller “adopts the product as its own, [it] has, in a sense, waived [its] right to immunity and should be subject[ed] to a manufacturer’s liability.” Senate Journal, 47th Leg., Reg. Sess., at 625 (Wash. 1981).
¶19 [HN12] Although RCW 7.72.040(2)(e) does not permit the product seller to seek to allocate fault to the manufacturer, this provision is not inconsistent with Washington’s comparative fault system, set forth in chapter 4.22 RCW. REI argues to the contrary, contending that our legislature, by adopting comparative fault as the general rule for tort liability, endorsed the principle that “every entity responsible for committing a tort should be liable to the plaintiff based on its own individual share of the total fault, no more and no less.” Br. of Pet’r at 16. This overly broad assertion assumes that, by enacting RCW 4.22.070, our legislature eliminated vicarious liability, which it expressly did not do. Indeed, this specific [*15] statute itself explicitly retains principles of common law vicarious liability, in that it provides that “[a] party shall be responsible for the fault of another … where both were acting in concert or when a person was acting as an agent or servant of the party.” RCW 4.22.070(1)(a). Similarly, the WPLA provision at issue here is a statutory imposition of vicarious liability wherein the seller of a branded product is held liable for the actions of the manufacturer, notwithstanding that the product seller did not actually manufacture the defective product.
¶20 Permitting REI to attribute fault to Aprebic would effectively abrogate RCW 7.72.040(2)(e), as the product seller would never assume the liability that the legislature intended the seller to bear where the seller brands the product as its own. [HN13] “Authority is legion that implied repeals of statutes are disfavored and courts have a duty to interpret statutes so as to give them effect.” Bellevue Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 122, 691 P.2d 178 (1984). Because the WPLA and our state’s statutory comparative fault system can be reconciled, we will not hold that our legislature intended, by passing the tort reform [*16] act of 1986, to impliedly repeal RCW 7.72.040(2)(e). See Bellevue Sch. Dist., 103 Wn.2d at 123 (“Repeals by implication are not favored and will not be found to exist where earlier and later statutes may logically stand side by side and be held valid.”). We are loathe to find a silent repeal, and we decline to do so here.
¶21 Moreover, [HN14] the fact that a product seller such as REI is not permitted to seek to allocate fault to the product manufacturer does not suggest an oversight by the legislature. Rather, it suggests a legislative intent to leave to the marketplace the means of allocating risk between commercial entities. The WPLA presupposes a contractual relationship between the product seller and the manufacturer, with or without an intermediary supplier, and, rather than legislatively imposing a means of risk allocation, assumes that sophisticated commercial parties will contract to allocate risk between themselves. Were we to hold that the WPLA permits REI to attribute fault to Aprebic, we would not only be acting in contradiction to the legislature’s clear intent–we would also be upsetting three decades of reliance on a statute that allows product sellers and manufacturers to themselves [*17] determine how best to allocate risk.
¶22 REI incorrectly asserts that Washington case law requires that it be permitted to attribute fault to Aprebic. REI cites Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 978 P.2d 505 (1999), for the proposition that comparative fault principles apply in all product liability cases. The plaintiff therein, a motorist injured in a collision, brought a product liability suit against the manufacturer of the snow tires that had been installed only on the vehicle’s front wheels. Hiner, 138 Wn.2d at 251. The snow tire manufacturer raised the affirmative defense of entity liability, “arguing that liability should be shared by the installer of the studded snow tires, the manufacturer of the Goodyear tires on the rear wheels, and the manufacturer of the Hyundai automobile.” Hiner, 138 Wn.2d at 259.
¶23 The Court of Appeals affirmed the trial court’s dismissal of the affirmative defense, reasoning that the comparative fault statute permitted a defendant manufacturer to apportion fault only to those entities liable to the plaintiff pursuant to the WPLA. Hiner v. Bridgestone/Firestone, Inc., 91 Wn. App. 722, 736, 959 P.2d 1158 (1998). Our Supreme Court reversed, [*18] holding that “[t]he plain language of the contributory fault statute does not limit apportioning fault only to other manufacturers and product sellers in a product liability case.” Hiner, 138 Wn.2d at 264. The court based its reasoning on the broad definition of “fault” set forth in Washington’s comparative fault statute, which states that “fault” includes “acts or omissions … that subject a person to strict tort liability or liability on a product liability claim.” RCW 4.22.015.
¶24 The Hiner decision is inapposite. In Hiner, the manufacturer of the snow tires sought to attribute fault to other entities that, if found to be at fault, would be liable pursuant to theories of liability different than the theory of liability pursuant to which the manufacturer was liable. Here, REI contends that it should be permitted to attribute fault to another entity that, if found to be at fault, would be liable pursuant to precisely the same theory of liability–“the liability of a manufacturer”–as that of REI. REI, which pursuant to the WPLA has the liability of the manufacturer, seeks to attribute fault to Aprebic based on the theory that Aprebic is the actual manufacturer. Because REI is vicariously [*19] liable for Aprebic’s acts, the basis of both entities’ alleged liability is the same. Put another way, in Hiner the fault sought to be allocated was not the same fault. In Hiner, the fault sought to be allocated resulted from different acts; here, the fault sought to be allocated arises from the same acts. Hiner is not inconsistent with the decision we reach today. 5
5 Similarly, the decision in Lundberg v. All-Pure Chemical Co., 55 Wn. App. 181, 777 P.2d 15 (1989), does not apply here. The court therein determined that the jury could be instructed on the plaintiff’s alleged comparative negligence in a product liability action, notwithstanding that the plaintiff’s claim alleged strict liability. Lundberg, 55 Wn. App. at 186-87. Finding that the legislature intended the comparative fault doctrine to apply to all actions based on fault, including strict liability and product liability claims, the court held that there is “no reason to distinguish between negligence and strict liability actions for purposes of instructing a jury on the plaintiff’s comparative fault.” Lundberg, 55 Wn. App. at 186. Johnson’s comparative fault is not at issue. Rather, the issue here is whether fault can be [*20] attributed to another entity where that entity is liable on the same basis and based on the same facts as is the defendant seeking to attribute fault and where permitting the defendant to attribute fault would contravene the purpose of the relevant statute.
¶25 Moreover, [HN15] the purpose of the comparative fault statute is “that fault be apportioned and … an entity be required to pay that entity’s proportionate share of damages only.” Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 294, 840 P.2d 860 (1992). Pursuant to RCW 7.72.040(2)(e), REI’s proportionate share of damages is the full amount of damages. Thus, unlike in Hiner, no apportionment of fault is necessary to ensure that the defendant pays only its share of damages.
¶26 Applicable case law further undermines REI’s assertion that it should be permitted to attribute fault to Aprebic. In Farmers Insurance Co. of Washington v. Waxman Industries, Inc., 132 Wn. App. 142, 148, 130 P.3d 874 (2006), we reversed vacation of a default judgment holding Waxman strictly liable as the “manufacturer” of a defective water supply line that was sold under the Waxman trade name. Waxman’s motion to vacate stated that “defects in hoses ‘often’ can be attributed [*21] to component parts of the hose manufactured by some other entity.” Waxman, 132 Wn. App. at 146. Waxman further contended that it did not manufacture the allegedly defective water supply line. Waxman, 132 Wn. App. at 146.
¶27 We held that Waxman’s evidence was insufficient to support a meritorious defense as required for vacation of a default judgment. Waxman, 132 Wn. App. at 145. Given that [HN16] a product seller that brands a product under its trade name is subject to the liability of the manufacturer pursuant to RCW 7.72.040(2)(e), we concluded that “[t]he materials submitted by Waxman do not explain how Waxman could avoid a finding of liability simply by proving that some other entity actually manufactured the supply line.” Waxman, 132 Wn. App. at 147. Furthermore, we determined that “whatever right of indemnity and contribution Waxman may be able to establish against other entities is not a defense to Waxman’s own liability.” Waxman, 132 Wn. App. at 148. The principles we set forth in Waxman support the conclusion that REI may not seek to allocate fault to Aprebic, the manufacturer, where it assumed the liability of the manufacturer.
¶28 [HN17] RCW 7.72.040(2)(e) creates a statutory form of vicarious [*22] liability whereby the seller of a branded product assumes the liability of the manufacturer. Because permitting such a product seller to seek to allocate fault to the actual manufacturer pursuant to comparative fault principles would undermine our legislature’s intent in enacting this statutory provision, the trial court did not err by concluding that REI could not seek to allocate fault to Aprebic.
III
¶29 REI next contends that the trial court erred by concluding that REI is strictly liable for Johnson’s injuries. Specifically, REI asserts that the trial court erred by resolving issues of material fact in favor of Johnson and by finding that the alleged manufacturing defects were the cause of her injuries. We disagree.
[10, 11] ¶30 [HN18] “In reviewing a summary judgment order, the appellate court evaluates the matter de novo, performing the same inquiry as the trial court.” Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and … the moving party is entitled to a judgment as a matter of law.” CR 56(c). The moving party bears the burden of demonstrating that there is no genuine issue as to any [*23] material fact. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). All reasonable inferences must be considered in the light most favorable to the nonmoving party, and summary judgment may be granted only if a reasonable person could reach but one conclusion. Rugg, 115 Wn. App. at 224.
[12, 13] ¶31 [HN19] A material fact ” ‘is a fact upon which the outcome of the litigation depends, in whole or in part.’ ” Lamon, 91 Wn.2d at 349 (quoting Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974)). An affidavit submitted in support of or in response to a motion for summary judgment “does not raise a genuine issue of fact unless it sets forth facts evidentiary in nature, i.e., information as to what took place, an act, an incident, a reality as distinguished from supposition or opinion.” Rugg, 115 Wn. App. at 224. “[U]ltimate facts, conclusions of fact, conclusory statements of fact or legal conclusions are insufficient to raise a question of fact.” Rugg, 115 Wn. App. at 224.
[14] ¶32 The WPLA provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” RCW 7.72.030(2).
A [*24] product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
RCW 7.72.030(2)(a).
¶33 REI first contends that, because the statutory definition of a manufacturing defect requires that the product deviate from the manufacturer’s design specifications or performance standards, Johnson cannot prove that the bicycle’s fork contained a manufacturing defect without submitting to the court direct evidence of Aprebic’s design specifications or performance standards. REI asserts that “there is no evidence in the record to establish that the fork at issue deviated from Aprebic’s design standards.” Br. of Pet’r at 34. To the contrary, Johnson submitted to the trial court evidence–in the form of Zaminski’s declaration–that the fork fractured due to insufficient carbon fiber layering. This evidence itself supports the conclusion that the fork “deviated in some material way from the design specifications or performance standards of the manufacturer,” RCW 7.72.030(2)(a), [*25] as no conceivable performance standard would call for the manufacture of a carbon fiber fork that fractures as Johnson’s did. Although [HN20] on summary judgment all reasonable inferences must be drawn in favor of the nonmoving party, Rugg, 115 Wn. App. at 224, no reasonable inference can be drawn that a carbon fiber fork that fractures in this way performed in accordance with any manufacturer’s performance standards. 6
6 Moreover, [HN21] the purpose of holding sellers of branded products vicariously liable for manufacturing defects would be undermined were we to require the claimant to conduct discovery from the manufacturer itself, particularly where the manufacturer is not a party to the action. Where such evidence is not necessary to demonstrate that the product was, indeed, defective, the trial court did not err by not requiring Johnson to produce direct evidence of Aprebic’s performance standards.
¶34 REI next contends that genuine issues of material fact regarding causation remain, thus precluding summary judgment. However, despite REI’s assertion that the bicycle displayed “substantial wear and tear,” REI does not establish how the fact that the bicycle was a “high mileage vehicle” explains the [*26] fracture of the carbon fiber fork. See CP at 176. Thus, the alleged “wear and tear” on the bicycle is not a ” ‘fact upon which the outcome of the litigation depends.’ ” See Lamon, 91 Wn.2d at 349 (quoting Morris, 83 Wn.2d at 494-95).
[15] ¶35 REI further speculates that the 2006 collision, which resulted in damage to the back tire of the bicycle, may have been a contributing cause of the fracture of the fork. However, REI’s evidence does not explain how that collision could have contributed to the fracture. Moreover, REI’s evidence refutes neither Johnson’s expert’s assertion that the insufficient carbon fiber layering is a defect that can occur only during manufacture nor the same expert’s conclusion that this particular defect caused the fork to fracture. Rather, REI conjectures that “[i]f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178. REI cannot rely on speculation and conjecture to raise a genuine issue of material fact. See Rugg, 115 Wn. App. at 224.
¶36 The trial court did not erroneously resolve issues of material fact in favor of Johnson. [*27] To the contrary, its grant of summary judgment was appropriate because REI failed to raise any genuine issue of material fact as to its liability for Johnson’s injuries.
IV
¶37 Finally, REI contends that the trial court erred by ruling that any claim brought by REI against Aprebic would be bifurcated for trial from Johnson’s claim. We disagree.
[16, 17] ¶38 [HN22] A trial court’s decision to order separate trials is reviewed for an abuse of discretion. Maki v. Aluminum Bldg. Prods., 73 Wn.2d 23, 25, 436 P.2d 186 (1968) (“The right to order separate trials is a matter of discretion vested in the trial court by the rules.”). Civil Rule 20(b) permits the trial court to order separate trials to prevent delay or prejudice where a party would be delayed or “put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him.” Here, the trial court acted well within its discretion in finding that permitting REI to join Aprebic as a third party defendant would delay and prejudice the adjudication of Johnson’s claim and, thus, ruling that any claim brought by REI against Aprebic should be bifurcated for trial.
¶39 Notwithstanding that the trial court acted within its discretion [*28] pursuant to CR 20(b), REI contends that the trial court’s bifurcation ruling was erroneous because the court “appeared to be unaware of the impact such bifurcation would have on the viability of REI’s contribution claim.” Br. of Pet’r at 41-42. REI and Aprebic cannot be jointly and severally liable for Johnson’s injuries, as required to establish a statutory right to contribution, unless a judgment is entered against both parties in Johnson’s suit. See [HN23] RCW 4.22.040 (noting that a right to contribution exists where the parties are jointly and severally liable); RCW 4.22.070(1)(b) (providing that only those defendants against whom judgment is entered may be jointly and severally liable for the claimant’s injuries). Thus, REI contends that the trial court abused its discretion by misapplying the law in issuing a ruling that would compromise REI’s right to seek contribution from Aprebic.
¶40 However, notwithstanding that REI may be precluded from seeking statutory contribution from Aprebic, the trial court did not abuse its discretion by misapplying the law. Indeed, [HN24] this is not the first time that a court has upheld a proper application of the law despite negative consequences for a party’s [*29] contribution rights. In Kottler v. State, 136 Wn.2d 437, 439, 963 P.2d 834 (1998), our Supreme Court held that a settling party in a civil tort action is not entitled to seek contribution from another alleged tortfeasor where joint and several liability did not arise pursuant to the exceptions set forth in RCW 4.22.070. Because no judgment had been entered against the settling defendant, and, thus, joint and several liability did not arise, RCW 4.22.040 precluded the settling party from seeking contribution. See Kottler, 136 Wn.2d at 439; RCW 4.22.040 (“A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury.”).
¶41 Justice Talmadge wrote separately “to urge legislative attention toward the anomalous result this case requires.” Kottler, 136 Wn.2d at 450 (Talmadge, J., concurring). Although he “agree[d] with the majority’s resolution because the statutory language and our case law compel its result,” Kottler, 136 Wn.2d at 450, Justice Talmadge remarked that it appeared that proper application of the 1981 and 1986 tort reform acts effected a result that contradicted the legislature’s intent [*30] in enacting those very statutes. Kottler, 136 Wn.2d at 450. Thus, “[t]o more effectively execute [the legislature’s] intent,” Justice Talmadge implored the legislature to “address[ ] and correct[ ] this unfortunate situation in the tort law.” Kottler, 136 Wn.2d at 453. Notwithstanding Justice Talmadge’s appeal to the legislature, it has amended neither the 1981 nor the 1986 act to address this “anomalous result.”
¶42 Here, as in Kottler, a result dictated by proper application of the law leads to an “anomalous result” in that REI’s contribution rights are compromised. Here, also as in Kottler, the existence of such an anomaly suggests neither a misunderstanding nor a misapplication of the law. Rather, the trial court here properly understood and applied the law, notwithstanding that REI’s right to seek contribution may have been thereby compromised.
¶43 The trial court did not abuse its discretion by ruling that any claim by REI against Aprebic would be bifurcated for trial from Johnson’s claim. 7
7 REI additionally contends that the trial court erred by denying REI’s request to conduct additional discovery prior to the summary judgment ruling. Because discretionary review was not granted on this [*31] issue, we will not reach it. City of Bothell v. Barnhart, 156 Wn. App. 531, 538 n.2, 234 P.3d 264 (2010) (noting that, [HN25] pursuant to RAP 2.3(e), the appellate court may specify the issue or issues as to which discretionary review is granted), review granted, No. 84907-2 (Wash. Nov. 3, 2010).
¶44 Affirmed.
Grosse and Spearman, JJ., cncur.
Five New Professional Cycling Teams Confirmed to Compete in the 2011 Quiznos Pro Challenge
Posted: March 19, 2011 Filed under: Cycling Leave a comment10 International Cycling Teams Set their Sights on America’s Most Demanding Professional Bike Race
March 15, 2011, Denver – The Quiznos Pro Challenge™ today announced five new teams confirmed to compete in the inaugural 2011 competition, including Union Cycliste Internationale (UCI) Pro Team Leopard Trek (Luxembourg), and UCI Professional Continental teams UnitedHealthcare Pro Cycling Team (USA), Team Type 1-sanofi aventis (USA), Skil-Shimano (Netherlands) and Team Spidertech Powered By C10 (Canada). These teams will join previously announced Team RadioShack (USA), HTC-Highroad (USA), Team Garmin-Cervélo (USA), BMC Racing Team (USA), and Liquigas-Cannondale (Italy) at the starting line in August.
“We are excited to have secured commitments from such world-class teams in the competition’s first year,” said Shawn Hunter, co-chairman of the Quiznos Pro Challenge. “We’ve set high goals for this race and the addition of these teams shows great promise for our future and cycling in the United States.”
The newly announced teams include some of the most exciting riders in the world, including Olympic gold medalist Fabian Cancellara (Switzerland), seasoned veteran Stuart O’Grady (Australia), and 2008 World Cycling Championships silver medalist Svein Tuft (Canada). In total, the Quiznos Pro Challenge will host as many as 128 professional cyclists from 16 teams for the 2011 competition. The specific riders who will participate in the Quiznos Pro Challenge will be named in the coming months.
Leopard Trek (Luxembourg) Leopard Trek is a new team led by Luxembourgish brothers Andy Schleck and Fränk Schleck, with Brian Nygaard as team manager. There are 11 nations represented on the roster, drawing fans from every region of the world. Olympic Gold Medalist Fabian Cancellara (Switzerland), 2010 Mountains Classification Tour Down Under winner Thomas Rohregger (Austria), and veteran Stuart O’Grady (Australia) highlight this diverse group.
UnitedHealthcare Pro Cycling Team (USA) The UnitedHealthcare Pro Cycling Team is owned and operated by Calif.-based Momentum Sports Group, which is led by Directeur Sportif Mike Tamayo, President Thierry Attias, and Chairman and Chief Executive Officer Greg Raifman. UnitedHealthcare’s prominent past includes becoming the number one team in North America in its second year, then defending the title for five consecutive years. In 2005, the team produced the single greatest season in North American cycling history, winning half of all National Racing Calendar (NRC) competitions, capturing 68 podium places in 63 individual NRC race days; sweeping the U.S. PRO, Philadelphia series, California series, and the New York Grand Prix. The Team’s 17 riders represent seven countries, with six riders hailing from the United States.
Team Type 1-sanofi aventis (USA)Team Type 1 is the world’s only professional cycling team with a roster that includes riders who have Type 1 diabetes. In 2009, Team Type 1 won 55 races, finished fourth in the NRC standings and captured the King of the Mountains title at five races, including the Tour of Missouri. In two seasons, the squad has registered 100 victories and 219 podium (top three) finishes.
Six of Team Type 1’s professional cyclists have type 1 diabetes: Martijn Verschoor (Netherlands), Fabio Calabria (Australia), Javier Megias (Spain), Joe Eldridge (USA), Alex Bowden (USA) and Olaf Kerkhof (Netherlands). In addition to several Americans, the team has many international riders hailing from Italy, Russia, Slovenia and the Ukraine.
Skil-Shimano (Netherlands) Skil-Shimano is managed and owned by Iwan Spekenbrink, with sports team managers Rudi Kemna, Christian Guiberteau, Merijn Zeeman, and Piet Hoekstra. Based in Holland, the team features Koen de Kort (Holland), who finished ninth overall in the 2010 Tour of Britain; 2010 Tour de Normandie champion Ronan van Zandbeek (Holland); 2009 German road race champion Martin Reimer (Germany); 2008 Olympic silver medal winner at the Omnium Roger Kluge (Germany), multiple Tour de France participant and third in the Tour de France’s youngster classification (2006) Matthieu Sprick (France); German (2009 and 2010) and European (2009) U23 time trial champion and U23 bronze winner at the 2010 World Championships time trial Marcel Kittel; and Yukihiro Doi (Japan), who finished ninth overall in the 2010 Tour of Hainan.
Team Spidertech Powered By C10 (Canada) Co-founded by Steve Bauer in 2007, Team SpiderTech powered by C10 is Canada’s first Continental Professional Cycling Team. The 2011 roster boasts 19 world-class riders including 2010 Canadian Road Champion Will Routley (Canada), 2008 World Cycling Championships silver medalist and 2010 Eneco Tour prologue winner Svein Tuft (Canada), and Lucas Euser (USA).
About the Quiznos Pro Challenge The Quiznos Pro Challenge is the most demanding professional bike race ever held in America, with racers experiencing breathless altitudes and nearly 600 mountain miles, for seven straight days. The inaugural 2011 Quiznos Pro Challenge will take place August 22-28, and it is expected to be the largest spectator event ever held in Colorado. The race travels through some of the world’s most famous and beautiful destinations, including Aspen, Vail, Avon, Steamboat Springs and Breckenridge. 128 of the world’s best professional cyclists from 16 teams, including Team RadioShack, HTC-Highroad, Team Garmin-Cervélo, BMC Racing Team, Liquigas-Cannondale, Team Leopard Trek, UnitedHealthcare Pro Cycling Team, Team Type 1-sanofi aventis, Skil-Shimano, and Team Spidertech Powered By C10 will be put to the test like never before.
The competition, destined to become the most coveted prize in cycling, brings the high speeds, danger and adrenaline of professional cycling to heights more than two miles in elevation, across some of the most picturesque terrain in the world—the Colorado Rocky Mountains. In the months leading up to the race, and throughout the live event, fans worldwide will be able to track their favorite cyclists like never before with the most advanced, interactive online, smartphone and broadcast television experience presented to date in professional cycling.
To keep in touch with the latest news and updates on the Quiznos Pro Challenge, visit www.quiznosprochallenge.com and follow the race on Twitter @qprochallenge or on Facebook.
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Parents putting up $20,000 for designer(s) of releasable snowboard binding
Posted: March 17, 2011 Filed under: Skiing / Snow Boarding Leave a commentSon skiing at Tahoe fell into powder snow and could not get out.
Prizes of $10,000, $6,000 and $4000 are being offered to the designer of a releasable snow board binding. The Zider’s son Chris died when he fell into deep powder while snowboarding.
The problem is going to be the industry has just ignored all releasable snowboard bindings.
See Dead child’s parents solicit snowboard solution.
To see information about the snowboard binding design see Snowboard Binding Design Challenge.
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Statutes and prospective language to allow a parent to sign away a minor’s right to sue.
Posted: March 16, 2011 Filed under: Minors, Youth, Children | Tags: Alaska, Child, Children Youth and Family, Colorado, Florida, Legal guardian, Minor, parent, Parental Responsibility, Parental Rights Leave a commentNow is the time to move a statute like this forward in your state.
Three states allow a parent to sign away a child’s right to sue by statute: Alaska, Florida and Colorado. Five (maybe 6) states allow a parent to sign away a minor’s right to sue by Supreme Court Decision. See States that allow a parent to sign away a minor’s right to sue. With more legislatures leaning to the conservative side, now is the time to introduce and get a law like these passed in your state. To assist you, at the end I have included language that I would propose for the statute.
Colorado
C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.
(2) As used in this section, unless the context otherwise requires:
(a) “Child” means a person under eighteen years of age.
(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Florida Statute on Guardian right to sign away a minor’s right to sue.
Fla. Stat. § 744.301 (2010)
§ 744.301. Natural guardians
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
Alaska
Alaska Stat. § 09.65.292 (2011)
Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
(c) In this section,
(1) “child” means a minor who is not emancipated;
(2) “parent” means
(A) the child’s natural or adoptive parent;
(B) the child’s guardian or other person appointed by the court to act on behalf of the child;
(C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;
(D) a person who has a valid power of attorney concerning the child; or
(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;
(3) “provider” has the meaning given in AS 09.65.290;
(4) “sports or recreational activity” has the meaning given in AS 09.65.290.
My suggestion on how the law should read.
Legislative declaration – definitions – minor children – waiver by parent or guardian of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in _____________ (state) need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a legal and fundamental right and responsibility to make decisions concerning the care, custody, and control of their minor children. The law has long presumed that parents act in the best interest of their children. Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458; 2000 Cal. Daily Op. Service 4345; 2000 Daily Journal DAR 5831; 2000 Colo. J. C.A.R. 3199; 13 Fla. L. Weekly Fed. S 365 (Troxel is a US Supreme Court decision that allows a parent to sign away a child’s right to sue. See Courtney Love in Outdoor Recreation Law.)
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(a) “Child” means a person under eighteen years of age at the time of incident, loss, injury or accident.
(b) For purposes of this section only, “parent” means a parent, a person who has guardianship of the person, a person who has legal custody, a legal representative, a physical custodian or a responsible person, in temporary custody and control of the minor Child.
(3) A Parent of a Child may, on behalf of the Child, release and waive, in advance, any claim or cause of action against a private, commercial, governmental or non-profit, activity provider, business, program or activity, or its owners, affiliates, employees, volunteers or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from the risk or an inherent risk in the activity or the Child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
To work you will need to round up everyone who deals with kids. Little League and other youth sports groups, day care centers, youth programs like Scouts, commercial programs like camps, day camps and anyone serving youth as well as major organizations that may be in your state like NOLS and Outward Bound.
Your statutory language may vary based on current state laws and court interpretations, but go for it. You can only lose time and get a civics lesson.
This won’t save you money on your insurance that never happens. However, it may help keep your insurance from going up and keep you out of court.
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Worker’s compensation is not enough, but then stupid is as stupid does.
Posted: March 15, 2011 Filed under: Ski Area Leave a commentReporter suing for injuries she received while reporting about a Zorb at a ski area.
A Zorb is a giant ball that rolls down the hill. The reporter was at Lost Valley ski area when she tried the Zorb for a story. The basis of the suit is the ski area said the Zorb was reasonable safe. Supposedly, the Zorb left the course and rolled over a barrier. Her complaint goes on to say. The ski area…
“failed to undertake basic and reasonable safety precautions, follow industry guidelines, seek governmental approval and/or use reasonable common sense in researching, acquiring, installing, testing and/or offering ‘zorbing’ at” the ski area.
Of course every business should immediately go out and ask the government, state local and federal, for approval for everything they may do. My favorite, they ski industry failed to follow industry guidelines. What industry, there is one company make Zorb’s.
After the wild ride, she drove back to the newspaper office then was taken to Central Maine Medical Center in Lewiston where she was later admitted.
At the same time, this suit may not be connected to the reporter’s desire for compensation. This may be due to one of two different things.
1. Worker’s compensation in Maine maybe so bad that the woman needs additional money to pay her medical bills; or,
2. The suit is based on the subrogation clause in the worker’s compensation policy and is actually started by the insurance company. The suit is in the woman’s name because she has the claim, but most of the money will go to the insurance company.
I hope a release was signed.
Before climbing in, you can’t figure out the risk? I’m getting into a plastic ball to roll down the hill in front of me, and I’m not worried!
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Wrong release for the activity almost sinks YMCA
Posted: March 14, 2011 Filed under: California, Release (pre-injury contract not to sue), Summer Camp | Tags: Adventure travel, Baseball Bat, Child, Day Camp, James H. Moss, JimMoss, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, YMCA 1 CommentA release must apply to the activity and the person who you want to make sure cannot sue you.
McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
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In this case, a mother signed her son up to attend a day camp sponsored by the YMCA. While attending the day camp, the child was accidentally hit in the head by another child with a baseball bat. The mother sued for the child’s injuries.
The YMCA argued that the mother had signed a release, and therefore, the YMCA should be dismissed. The mother argued that the release only applied to her, not her child because the release was unclear as to who was being released in the document. (The mother argued the release was required for her to walk around the YMCA to sign her son up for the camp.)
In this case, the YMCA used its general release for people on the premises of the YMCA as a fitness facility, for its day camp. The release did not indicate a parent would be signing for the child nor did the release look to the issues the child would encounter, only an adult using the YMCA or any other gym.
The mother argued because the release did not identify her son, the injured party, as who the release applied to the release only applied to her while she was on the premises. Nothing in the document indicated that the mother was signing a release on behalf of her son.
Like most releases used in gyms and fitness centers it is written for the adult signing up to use the gym.
Under the law, “An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties.”
What saved the YMCA was a technicality in the language of the release. To go to the day camp, the child attending must be a member of the YMCA. The mother of the injured child was not a member of the YMCA. However, her son was. Because the release referred to the YMCA member as the person giving up their right to sue, the court held the release applied to the child not the mother. This language allowed the court to find for the YMCA.
So?
Releases are not documents you can merely find on the internet or put together based on language that sounds good. Think about the contract you used to purchase your house. It was a 10 to 20 page document used to buy something of value greater than $100,000 or so.
If someone is suing you for several million dollars do you want to rely on a document that you put together or worse stole from the business down the street.
Here again you have to make sure your release is properly written. You may have several different releases for different parties or activities. I commonly suggest that people use different paper to print the different release forms. Here the YMCA should have had a general release for use of its fitness and other facilities and a release for its day camp. One could have been printed on white paper and the other on green. Even better, put the release online and save paper.
Your release must identify who is protected by the release and who the release is going to stop from suing. In many cases, one parent will sign on behalf of a child. However, in some states, unless the language is clear, that parent may not be preventing the other parent from suing. Identify every person who can sue in the release as well as every person who cannot be sued. When in doubt, have both parents sign the release.
For information on other states where a parent can sign away a minor’s right to sue see: States that allow a parent to sign away a minor’s right to sue–Updated 2011
What do you think? Leave a comment.
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McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
Posted: March 14, 2011 Filed under: California, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Summer Camp Leave a commentMcGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
Denitra McGowan et al., Plaintiffs and Appellants, v. West End YMCA, Defendant and Respondent.
E029450
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
2002 Cal. App. Unpub. LEXIS 3018
March 15, 2002, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR PURPOSES OF RULE 977.
PRIOR HISTORY: APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. RCV 42286. Ben T. Kayashima, Judge.
DISPOSITION: Affirmed.
CORE TERMS: summary judgment, extrinsic evidence, ambiguous, uncontradicted, matter of law, undersigned, parol evidence, inadvertently omitted, membership, executing, daycare, lawsuit, notice, physical injuries, financial assistance, indemnity agreement, unenforceable, unambiguous, negligently, undisputed, enrollment, pertained, signature, enrolling, absurdity, enrolled, construe, supplied, pertain, signing
COUNSEL: Ritchie, Klinkert & McCallion, James E. Klinkert, James McCallion and Ralph Harrison for Plaintiffs and Appellants.
Allie & Schuster, James P. Allie and Coreen R. Walson for Defendant and Respondent.
JUDGES: Gaut, J. We concur: Ramirez, P.J., Hollenhorst, J.
OPINION BY: Gaut
OPINION
1. Introduction
Plaintiffs Denitra McGowan and Deshon McGowan, a minor, (plaintiffs) appeal judgment entered against them following summary judgment entered in favor of defendant West End YMCA (the YMCA).
Denitra McGowan enrolled her son, Deshon McGowan, in the YMCA’s summer camp daycare program. In the process of doing so, she signed various documents, including a release of liability. Deshon was injured while participating [*2] in the program. Plaintiffs filed a personal injury lawsuit against the YMCA. The trial court granted the YMCA’s motion for summary judgment on the ground plaintiffs’ lawsuit was barred by the release.
Ms. McGowan contends the trial court erred in granting summary judgment because the release only applied to physical injuries she sustained while on the YMCA premises, and did not pertain to Deshon since the release makes no reference to him and does not state that she signed the release on his behalf. She further argues that the trial court should not have considered parol evidence in determining the release applied to Deshon because the release was unambiguous. Even if it was ambiguous, plaintiffs argue, the court should have denied summary judgment because there was a triable issue as to whether the parties to the release intended it to apply to Deshon and an ambiguous release is unenforceable.
We conclude the trial court properly granted summary judgment. The release indicated it pertained to YMCA members. Since Ms. McGowan was not a YMCA member, but signed the release, it was unclear as to whom the release affected. The court appropriately considered parol evidence to [*3] determine this matter. Uncontradicted extrinsic evidence established that Deshon was the subject of the release and Ms. McGowan executed the release on his behalf. Accordingly, we affirm summary judgment in favor of the YMCA.
2. Facts and Procedural Background
The following facts are undisputed. Ms. McGowan submitted an application for YMCA financial assistance to assist her in paying for Deshon to attend the summer daycare program. In May 1998, the YMCA notified Ms. McGowan that it had approved her request for financial assistance.
On June 10, 1998, Ms. McGowan filled out and signed various YMCA forms, including a membership application for Deshon to become a member and a registration form for summer day camp. When Ms. McGowan returned the completed forms on June 12, 1998, a staff member requested Ms. McGowan to execute two additional forms, which included a general policies statement regarding YMCA members and a form release and waiver of liability and indemnity agreement. Ms. McGowan signed and returned the two forms.
On August 19, 1998, while Deshon was at summer day camp, another child accidentally struck Deshon in the head with a baseball bat. In their lawsuit, [*4] plaintiffs alleged the YMCA negligently operated the daycare center and negligently supervised Deshon and the other children enrolled in the program.
Ms. McGowan acknowledged during her deposition that her signature was on the release, but claimed she did not remember signing it. She admitted that she was not a YMCA member. Ms. McGowan further stated that she was aware she was enrolling Deshon as a YMCA member and this was done for the purpose of having Deshon attend the program while she worked.
The YMCA filed a summary judgment motion based on the theory plaintiffs’ action was barred by the release of liability. Plaintiffs filed opposition arguing that the release did not pertain to Deshon since the release did not state it applied to Deshon or that is was signed on his behalf.
The trial court granted the YMCA’s summary judgment motion on the ground it was undisputed Ms. McGowan signed the release on behalf of Deshon and therefore plaintiffs’ action was barred.
3. Discussion
Plaintiffs argue the release did not bar their action because the release does not state that Ms. McGowan signed the release on Deshon’s behalf. The release states that “THE UNDERSIGNED [*5] HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the YMCA.” Plaintiffs claim that the release was limited to a waiver of liability as to physical injuries sustained by Ms. McGowan while on the YMCA premises.
The goal of contractual interpretation is “to give effect to the mutual intention of the parties as it existed at the time of contracting . . . .” 1 When, as here, “a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . .” 2 Accordingly, if the language of the contract is plain and unambiguous, and is not reasonably susceptible of a different meaning, no extrinsic evidence is admissible to prove that the parties intended a different interpretation. 3 Under those circumstances, the proper interpretation is purely a matter of law, 4 which may be resolved by summary judgment. 5
1 Civil Code section 1636. Unless otherwise noted, all statutory references are to the Civil Code.
2 Section 1639.
3 Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37-40, 69 Cal. Rptr. 561, 442 P.2d 641.
[*6]
4 Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal. Rptr. 767, 402 P.2d 839.
5 Niederer v. Ferreira (1987) 189 Cal. App. 3d 1485, 1499, 234 Cal. Rptr. 779.
On the other hand, extrinsic evidence may be admitted and considered if the contract is ambiguous. 6 If extrinsic evidence is admitted but is not in conflict, then the issue remains one of law, even though the uncontradicted extrinsic evidence may give rise to conflicting inferences. 7
6 Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d at page 40; Niederer v. Ferreira, supra, 189 Cal. App. 3d at pages 1499-1500.
7 Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439, 204 Cal. Rptr. 435, 682 P.2d 1100; Parsons v. Bristol Development Co., supra, 62 Cal.2d at page 866, footnote 2.
[*7] “When a contract is in any of its terms or provisions ambiguous or uncertain, ‘it is primarily the duty of the trial court to construe it after a full opportunity afforded all the parties in the case to produce evidence of the facts, circumstances and conditions surrounding its execution and the conduct of the parties relative thereto.'” 8
8 Walsh v. Walsh (1941) 18 Cal.2d 439, 443, 116 P.2d 62, quoting Barlow v. Frink (1915) 171 Cal. 165, 172-173, 152 P. 290.
“‘An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties.’ [Citation.] But ‘to be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to combine the elegance of a trust indenture with the brevity of a stop sign.’ [Citation].” 9 Whether a release is ambiguous is a question of law which we review de novo. 10
9 Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162.
[*8]
10 Baker Pacific Corp. v. Suttles (1990) 220 Cal. App. 3d 1148, 1153, 269 Cal. Rptr. 709.
We first consider whether the release is ambiguous. We conclude the release language is clear and explicit as to its terms 11 but unclear as to whose right to sue was waived since Ms. McGowan was not a YMCA member and the release stated it pertained to members.
11 Randas v. YMCA of Metropolitan Los Angeles, supra, 17 Cal.App.4th at page 163.
The first paragraph of the release is entitled “CONDITIONS OF MEMBERSHIP,” and states, among other things, that members must present their membership cards when using the YMCA’s facilities and “As a member of the YMCA you are agreeing to follow the policies, procedures and appropriate behaviors for the safety and comfort of all members and guests.” 12 The release further states, under the heading, “RELEASE AND WAIVER [*9] OF LIABILITY AND INDEMNITY AGREEMENT,” that, as a condition of the “undersigned’s” use of the YMCA facilities or equipment or participation in any way, that the undersigned release the YMCA from all liability in the event the undersigned is physically injured while using the YMCA facilities or equipment. Such language clearly is directed toward members. Therefore the release did not apply to Ms. McGowan.
12 Italics added.
Since the release does not state who was the member affected by the release, we look to the extrinsic evidence. “It has been held repeatedly, that it is not a violation of the parol evidence rule to prove by extrinsic evidence the identity of the parties to an agreement.” 13 “‘Parol evidence is competent to show whom the parties intended should be bound or benefited.'” 14 The uncontradicted extrinsic evidence in this case establishes that the release applied to Deshon.
13 Maulhardt v. Cal. Director of Public Works (1959) 168 Cal. App. 2d 723, 735, 336 P.2d 631; Branch v. Bekins Van and Storage Company (1930) 106 Cal.App. 623, 635, 290 P. 146.
[*10]
14 Maulhardt v. Cal. Director of Public Works, supra, 168 Cal. App. 2d at page 735, quoting Escondido Oil etc. Co. v. Glaser (1904) 144 Cal. 494, 499, 77 P. 1040; Branch Bekins Van and Storage Company, supra, 106 Cal.App. at page 635.
Section 1638 states that “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Construing the release as applied to Ms. McGowan rather than Deshon involves an absurdity since Ms. McGowan was not a YMCA member, whereas Deshon was, and Ms. McGowan executed the other enrollment documents at the same time she was either returning or executing other documents on Deshon’s behalf for the purpose of enrolling him in day camp. Since Ms. McGowan was not a YMCA member and the other YMCA enrollment documents indicated they were signed on Deshon’s behalf, it would be absurd to construe the release as applying to Ms. McGowan rather than Deshon.
Thus, while in Hohe v. San Diego Unified School District 15 the court [*11] held the issue of the parties’ intent in executing an ambiguous release was a jury question, here the uncontradicted extrinsic evidence established as a matter of law that the release was executed by Ms. McGowan on Deshon’s behalf and applied to him. It should be obvious to all reasonable persons that language indicating Ms. McGowan was executing the release on Deshon’s behalf was inadvertently omitted from the signature line. 16 “Were we to adopt respondent’s strict interpretation of words we would be subverting the only reasonable interpretation of the instrument as a whole.” 17
15 Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647.
16 Heidlebaugh v. Miller (1954) 126 Cal. App. 2d 35, 40, 271 P.2d 557.
17 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 40.
In Heidlebaugh v. Miller, 18 the contract in question contained the phrase, “seller may, if [*12] he so desires, but shall not be obliged so to do, sell said property at public or private sale, with or with notice to Purchaser . . . .” 19 The court upheld nonsuit on the ground no notice of the sale was required. 20 The Heidlebaugh court concluded as a matter of law that the parties intended that the contract state “with or without notice,” and that the word, “out,” had been inadvertently omitted from the contract. 21
18 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d 35.
19 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 36.
20 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 41.
21 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 40.
The Heidlebaugh court stated that, “‘Where, by inadvertence, words are plainly omitted from a contract, they may be supplied by construction if the context indicates what they are.'” 22 Such [*13] alteration of the contract is permitted because, “‘The court will if possible give effect to all parts of the instrument and an interpretation which gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable; and if this is impossible an interpretation which gives effect to the main apparent purpose of the contract will be favored. Indeed, in giving effect to the general meaning of a writing, particular words are sometimes wholly disregarded, or supplied, or transposed. . . .'” 23
22 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 38.
23 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 38.
Here, uncontradicted evidence establishes that words indicating Ms. McGowan was signing the release on Deshon’s behalf were inadvertently omitted from the release. “A contract may be explained by reference to the circumstances under which it was made, and the matter [*14] to which it relates.” 24 Accordingly, we conclude as a matter of law the release barred plaintiffs’ action against the YMCA.
24 Section 1647.
Plaintiffs also argue the release is unenforceable because it affects public policy. Plaintiffs did not raise this argument in the trial court and thus it is waived on appeal. 25
25 In re Aaron B. (1996) 46 Cal.App.4th 843, 846.
4. Disposition
The judgment is affirmed. The YMCA is awarded its costs on appeal.
Gaut, J.
We concur:
Ramirez, P.J.
Hollenhorst, J.
Why do you climb Mt Everest, study looks at the reasons and does not come up with the best of man kind’s motivation for some.
Posted: March 10, 2011 Filed under: Mountaineering 1 CommentStudy shows that climbers who pay to summit do not have the same team philosophy as other climbers.
The study found “…finds that people who pay for transformative experiences often lack the communitarian spirit that usually defines such activities.”
The authors stated that the climbers experienced forced companionship rather than developing any communal relationships with the other climbers.
The study was published in The Journal of Consumer Research Publication, 1974-2011 (Vols. 1-37), published by The University of Chicago Press.
For a summary of the study see: Climbing Mount Everest: Noble Adventure or Selfish Pursuit?
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Ski Area Fatalities 2010 -11 Ski Season to date: 3/2/11
Posted: March 9, 2011 Filed under: Ski Area 1 CommentSki Area Fatalities 2010 -11 Ski Season to date: 3/2/11
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
Blue Highlighted Fatality is a ski area employee
| Date | Resort | Doing What | Age | Ski/ Tele /Boarder | Cause of Death | Helmet |
| 11/22 | Wolf Creek Ski Area | In bounds Avalanche | 41 | Skier | ||
| 12/2 | Snowmass | lost control and struck a tree | 22 | Skier | Yes | |
| 12/12 | Cannon Mountain | loss of control on an open trail section | 18 | Skier | No | |
| 12/18 | Wolf Creek Ski Area | jumped off 40-50′ cliff | 35 | Boarder | hyperextended his neck backward, rupturing an artery | |
| 12/19 | Cannon Mountain ski resort | 31 | Boarder | |||
| 12/21 | Beaver Creek Ski Area | found in snow | 59 | Skier | blunt force trauma | Yes |
| 12/24 | Hogadon Ski Area | Stopped on run and hit by snowboarder | 5 | Skier | massive chest injuries | Yes |
| 12/24 | Hogadon Ski Area | Collided with 2 skiers stopped on run | 22 | Boarder | massive chest injuries | No |
| 12/26 | Aspen Mountain | bad fall | 77 | Skier | suffering a broken | |
| 12/27 | Mountain High ski resort | collided with trees | 24 | Boarder | No | |
| 12/28 | Discovery Ski Area | hit trees/ski instructor | 21 | Skier | blunt force trauma injuries | Yes |
| 12/29 | China Peak Ski Area | found in snow | 29 | Boarder | asphyxiation | |
| 12/29 | Whitefish Mountain Resort | found in treewell | 16 | Skier | Taken off life support 1/2/11 | |
| 1/2 | Keystone Ski Resort | skied into a tree | 38 | Boarder | blunt force trauma | Yes |
| 1/9 | Whitefish Mountain Resort | found in a treewell | 29 | Boarder | Yes | |
| 1/9 | Snowbowl | landed on his head while attempting to do a back flip | 22 | Boarder | ||
| 1/11 | Heavenly Mountain Resort | 57 | blunt force trauma to the left side of her chest | |||
| 1/12 | Jackson Hole Mountain Resort | found in a tree island probably hit tree | 18 | Skier | Instantly upon hitting tree | |
| 1/15 | Sugarloaf | skiing into an object off the side of trail | 16 | Skier | Yes | |
| 1/16 | Windham Mountain | ost control on the trail | 18 | Skier | Extensive Head Injuries | No |
| 1/19 | Mt. Rose Resort | crashing into a tree while walking down a slick mountainside | 15 | Boarder | Head injuries | No |
| 1/22 | Granlibakken Resort | back first into a ski lift tower | 22 | Boarder | blunt force trauma | |
| 1/26 | Keystone Resort | found in the trees | 22 | evere blunt force trauma | No | |
| 1/27 | Anthony Lakes Ski Area | 24 | collided with a tree and suffered head and neck injuries | |||
| 1/28 | Crystal Mountain | 67 | severed his spinal cord | |||
| 1/30 | Mount Hood Meadows Ski Resort | 41 | Skier | No | ||
| 2/4 | Hunt Hollow | hit a tree | 54 | Yes | ||
| 2/4 | Hunt Hollow Ski Club | found unconscious after he traveled off the south edge | 54 | Skier | Yes | |
| 2/6 | Eldora Mountain Resort | he hit a tree | 35 | Boarder | ||
| 2/9 | Sun Valley Resort | colliding with a tree | 49 | Skier | trauma to his head and chest | No |
| 2/11 | Windham Mountain Ski Resort | fell, slid off the more advanced “Wedgie” ski trail and struck a tree | 69 | Skier | extensive head injuries | No |
| 2/11 | Cooper Mountain Ski Area | lost control and tumbled over some rocks (1/25/11) | 21 | fractured skull, a fractured right knee, a broken leg, a broken wrist, many facial fractures and lacerations to his liver and kidney | ||
| 2/12 | Snowshoe Mountain Resort | speed and ice caused her to go airborne and strike a tre | 22 | |||
| 2/16 | Sun Valley Resort | colliding with a tree. | ||||
| 2/17 | The Yellowstone Club | fall | 45 | |||
| 2/18 | Spirit Mountain | ying on the ground in a tree line halfway down a ski run, with obvious trauma and not breathing | 12 | Skier | ||
| 2/20 | Mount Shasta | fell into a tree well about 10-feet deep | 23 | |||
| 2/23 | Arapahoe Basin | lost control while moving at a high rate of speed and tumbled | 32 | Skier | blunt force trauma to the chest | No |
| 2/27 | Northstar-at-Tahoe | lying by a cluster of trees | 30 | Boarder | No | |
| 2/28 | California’s Kirkwood Ski area | through a backflip off of this 40′ cliff, from a downward decent | 25 | Skier | internal bleeding | |
First Update: Ski Area Fatalities -11 Ski Season
Second Update: Ski Area Fatalities -11 Ski Season to date: 1/5/1
Third Update: Ski Area Fatalities -11 Ski Season to date: 1/14/11
What do you think? Leave a comment.
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