Pakistan reduces climbing fees (supposedly).
Posted: November 25, 2010 Filed under: Mountaineering Leave a commentForty (40%) Percent fee reduction for 6500 meter peaks.
The Government of Pakistan has reduced the royalty fee by 40% for climbing mountains above 6500 meters for 2011.
This is a great opportunity for mountaineers wishing to explore and climb Pakistan.
Pakistan’s Ministry of Tourism, has decided to raise the altitude for peaks where no peak fees or Liaison Officer are required from below 6,500 meters for which opens up many additional mountains for small teams to attempt. The only restrictions will be the usual trekking fee of US$ 50 per person per month, if the peak located in the specified trekking routes in Restricted Areas. Foreigners are allowed to trek or climb in the open zone without permit up to 6500 meters.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Rice, et als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
Posted: November 25, 2010 Filed under: Legal Case, Maine, Release (pre-injury contract not to sue), Ski Area | Tags: Inc., MAINE, Outdoors, Perfect Turn, Recreation, Resort, Ski, ski lesson, Sunday River, Sunday River Ski Co., Thomas Rice Leave a commentThomas Rice, et als, Plaintiffs vs. American Skiing Company, Et Als, Defendants
Civil Action Docket No. CV-99-06
SUPERIOR COURT OF MAINE, OXFORD COUNTY
2000 Me. Super. LEXIS 90
May 8, 2000, Decided
May 9, 2000, Filed
DISPOSITION: [*1] Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim GRANTED; Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint DENIED; and Defendants’ Motion for Summary Judgment on Count II of Plaintiffs’ Complaint GRANTED.
OPINION
DECISION AND ORDER
This matter is before the court on the motion of the plaintiff Laurene Rice for summary judgment, dated December 6, 1999, directed to the defendants’ counterclaim and on the defendants’ motion for summary judgment, dated January 6, 2000, directed to the plaintiffs’ complaint.
FACTUAL BACKGROUND
The plaintiffs Thomas and Laurene Rice are the parents of the plaintiff Nicholas Rice. The defendants Sunday River Skiway Corporation (SRS) and Perfect Turn, Inc. (Perfect Turn), are affiliates of each other and subsidiaries of the defendant American Skiing Company (American Skiing). 1 SRS owns and operates the Sunday River Ski Resort in Newry, Maine (Sunday River). SRS also operates a ski school there called “Perfect Kids Children’s Program” (ski school), but does not require individuals to enroll in the ski instruction program as a precondition to skiing at Sunday River. The defendant Timothy McGuire [*2] is employed by SRS as a ski instructor.
1 On April 26, 2000, the parties filed a stipulation of dismissal without prejudice as to American Skiing Company and Perfect Turn, Inc.
On December 13, 1997, the plaintiffs went to Sunday River to ski. Nicholas was almost nine years old at the time and Laurene enrolled him in the ski school. She selected the Level Three program for people who already had certain skiing skills. 2
2 In deposition testimony, Timothy McGuire described that skill level:
Q. Would you please tell us again what Level Three meant in terms of skill level?
A. That it meant that they were able to form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.
Defendants’ Statement of Material Facts, Ex. B at p. 22.
[*3] Prior to Nicholas’ enrollment in the class, Laurene signed a form entitled “Acknowledgement & Acceptance of Risks & Liability Release” (Ski Enrollment Form) on behalf of herself and her son. The document began with a “WARNING” about the hazards of “Alpine activities” 3 and the challenges of the ski school program, then included language purporting to be a release by Laurene and Nicholas 4 of SRS and
“its owners, affiliates, employees and agents from any and all liability for all personal injury [] arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”
See Affidavit of Joseph R. Saunders, Esq. The document concluded with Laurene’s agreement to indemnify the defendants “for all awards, legal expenses and settlements arising out of” her child’s participation in the ski school and his use of the Sunday River premises. Thomas did not sign the Ski Enrollment Form and there is no evidence that he was involved in the enrollment process. The parents went off to ski while Nicholas was in class.
3 The hazards included many of the dangers or conditions included in the definition of “inherent risks of skiing” in Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act. 32 M.R.S.A. § 15217(1)(A) (Supp. 1999). See Affidavit of Joseph R. Saunders, Esq.
[*4]
4 The document included the following language:
“As a parent/guardian with legal responsibility for a minor participant, I am authorized to sign this agreement for that child. I consent and agree for the minor child to be bound by this agreement ….”
See Affidavit of Joseph R. Saunders, Esq.
The ski class began around 9:30 a.m. McGuire first taught the class “rule number one” which was “you don’t pass the coach.” Nicholas fell at one point during a training run in the morning session. McGuire and the rest of the class went further ahead, then stopped and formed a group. When the boy caught up to them, McGuire was finishing an instruction about a skiing maneuver for stopping called a “hockey stop”.
The class broke for lunch at 11:15 a.m. and resumed shortly after the noon hour on a trail called Mixing Bowl. Ski conditions were good and the trail was in good shape. McGuire took his charges on a “fun run” down the slope again instructing the class not to ski past him. Nicholas fell and the group stopped further on to wait for him. He got up and began skiing toward them. He [*5] started going faster and panicked. As he approached the group, he could not slow down. He tried to do a “hockey stop”, skied off the side of the trail, hit a tree and was injured.
DECISION
A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Panasonic Communications & Sys. Co. v. State, 1997 ME 43, P10, 691 A.2d 190, 194 (citing Gonzales v. Comm’r, Dep’t of Pub. Safety, 665 A.2d 681, 682-83 (Me. 1995)). Even if the parties differ as to the legal conclusions to be drawn from the historical facts before the court, if there is no serious dispute as to what those facts are, consideration of a summary judgment is proper. North East Ins. Co. v. Soucy, 1997 ME 106, P8, 693 A.2d 1141.
At the heart of it, the plaintiffs allege that the defendants, acting through McGuire, were negligent in their supervision of Nicholas. Laurene’s separate claim for lost wages can only survive on the strength of this negligence claim. The defendants disclaim responsibility by virtue of the immunity provisions of Maine’s Skiers’ and Tramway Passengers’ Responsibilities [*6] Act, 32 M.R.S.A. § 15217 (Supp. 1999), and the provisions of the Ski Enrollment Form signed by Laurene.
Maine’s Skiers and Tramway Passengers’ Responsibilities Act
The threshold issue is whether the Act immunizes the defendants against liability for a claim of negligent supervision. The court concludes that it does not. The Act relieves ski area operator’s from responsibility for injuries that result from the “inherent risks of skiing–such as skiing into a tree. Id. However, the statute expressly provides that it “does not prevent the maintenance of an action against the ski area operator for [] the negligent operation [] of the ski area”. 32 M.R.S.A. § 15217(8)(A). 5 Nicholas’ claim of negligent supervision clearly falls within the Act’s “negligent operation” exclusion.
5 See McGuire v. Sunday River Skiway Corp., 1994 WL 505035, *5 (D. Me.), in which Judge Hornby wrote “McGuire’s argument for liability might have some appeal if her skiing instructor had encouraged her to do something inappropriate during her lesson. That might amount to negligent operation of the ski area.”
[*7] Nicholas’ Claim
The issue then becomes whether the boy’s claim against the defendants has been effectively released by his mother. This issue requires an examination of the meaning and validity of the release language in the Ski Enrollment Form.
Releases in general are not against public policy. See Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983). However, for its terms to be valid, a release absolving a defendant of liability for its own negligence “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” The courts have “traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language which allegedly exempts a party from liability for his own negligence.” See Hardy v. St. Clair, 1999 ME 142, P3, 739 A.2d 368, 369, citing Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me. 1979). The release must be construed strictly. See Doyle, 403 A.2d at 1207-08 (citing Prosser, Torts, § 68 (4th ed. 1971)) (it must appear that [*8] the terms of the release were “brought home to the plaintiff”).
The release that Laurene signed on behalf of herself and Nicholas prevents claims
“against [SRS], its owners, affiliates, employees and agents from any and all liability for all personal injury, including death or property damage arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”
See Affidavit of Joseph R. Saunders, Esq. (emphasis added). This language is unambiguous and, if valid, clearly releases the defendants from liability for damages and losses sustained as a result of negligence in the operation of the ski area, which would include the claim of negligent supervision in this case. The interpretation of an unambiguous contract is a question of law, see Fleet Bank of Maine v. Harriman, 1998 ME 275, P4, 721 A.2d 658.
More to the point of this case, the issue is whether an unambiguous release of negligence claims given by a parent on behalf of her child is valid. The defendants cite Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), as [*9] support for their assertion that a parent can give a binding release of such claims on behalf of the child. However, Zivich stands for the more limited proposition “that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sports activities where the cause of action sounds in negligence.” 82 Ohio St. 3d at 374 (emphasis added). The decision was grounded on two public policy considerations: first, nonprofit sports organizations would be unable to get volunteers without such releases and would go out of existence; and, second, parental authority to make and give such releases is of constitutional importance. However, the first consideration is inapplicable to the facts of this case–none of the defendants is a nonprofit organization and McGuire was not a volunteer–and the court is not persuaded by the second.
The defendants’ do make a broader public policy argument addressed to the facts of this case. They assert that ski schools are offered by ski areas for the convenience and safety of their guests. If releases on behalf of minors are unenforceable, ski areas will be reluctant to offer [*10] training and instructions to children, whose safety will then be as risk. This is not an inconsequential point. However, it is a risk against which a for-profit business may insure itself. 6 This court cannot conclude that the public policy consideration espoused by the defendants is paramount to the right of the infant to his negligence claim.
6 The court is mindful that in Zivich the Ohio Supreme court determined that “insurance for the [nonprofit] organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs.” 82 Ohio St. 3d at 371-72. However, the point in Zivich, which involves a volunteer, is distinguishable from this case, which involves a paid employee. While a volunteer may reasonably expect that he should suffer no penalty for the consequences of his gratuitous acts, a paid employee–such as Defendant McGuire–may not.
There are numerous cases holding contrary to the defendants’ position. See, e.g., Scott v. Pacific West Mtn. Resort, 119 Wn.2d 484, 834 P.2d 6 (Wash. 1992) [*11] (en banc); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458, 460 (Vt. 1982). Maine appears to side with these decisions. In the case of Doyle v. Bowdoin College, supra, the Law Court was unequivocal in its declaration, albeit dicta, 7 that “this Court has held that a parent, or guardian, cannot release the child’s or ward’s, cause of action.” Doyle v. Bowdoin College, 403 A.2d at 1208 n.3. This language is too unequivocal to ignore. In fact, other courts holding in line with Scott have cited Doyle as support for this proposition. See Scott, 834 P.2d at 12 n.19; see also International Union v. Johnson Controls, Inc., 499 U.S. 187, 214, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991)(White, J., concurring) (“the general rule is that parents cannot waive causes of action on behalf of their children”); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994).
7 Although it is dicta, courts have cited Doyle for the proposition that a parent cannot release a child’s causes of action.
[*12] The court concludes that the claim for negligent supervision brought on behalf of Nicholas is not barred by the release provisions of the Ski Enrollment Form signed by his mother.
Laurene’s Claim
Laurene’s claim for lost wages arises out of and is dependant upon her son’s claim for negligent supervision. As noted, the release language is unambiguous and clearly releases the defendants from liability for damages and losses “arising from any alleged negligence in the operation [] of the ski area”, which includes the claim of negligent supervision in this case. Although this court concludes that Nicholas’ cause of action survives the release provisions of the Ski Enrollment Form, his mother’s claim does not. See Scott v. Pacific West Mtn. Resort, 834 P.2d at 12 (holding that although child’s cause of action is not barred by parents’ signing of release, parents’ claims based on child’s injury are barred by unambiguous and conspicuous release); see also Childress v. Madison Cty., 777 S.W.2d 1, 7-8 (Tenn. Ct. App. 1989) (although child and child’s father are not bound by release signed by mother, she is barred from bringing claims based [*13] on child’s injuries).
Indemnification Clause
Finally, there remains the issue of whether Laurene is obligated to indemnify the defendants against Nicholas’ cause of action. In Maine, the Law Court views clauses “indemnifying a party against its own negligence with disfavor, and directs courts to construe them strictly against such a result.” See International Paper Co. v. A&A Brochu, 899 F. Supp. 715, 719 (D. Me. 1995), citing Emery Waterhouse, 467 A.2d at 993. However, the court may uphold an indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties. “[A] clear reflection of mutual intent requires language from the face of which the parties unambiguously agree to indemnification for indemnitee negligence.” See id. In International Paper, the court upheld the validity of such an indemnification clause that provided, as follows:
“SELLER does hereby agree to indemnify and hold harmless PURCHASER from and against any and all claims, damages, debts, demands, suits, actions, attorney fees, court costs and expenses arising [*14] out of, attributable to, or resulting from SELLER’S or any supplier’s said operations, whether the same are caused or alleged to have been caused in whole or in part by the negligence of PURCHASER, Its (sic) agents or employees.”
Id. (emphasis added). However, unlike International Paper, it is not clear that the indemnification provision in this case applies to the defendants’ own negligence. 8 The Ski Enrollment Form provides as follows:
“I hereby indemnify the ski areas named above, its owners, affiliates, employees and agents for all awards, legal expenses and settlements arising out of the child’s participation in this clinic and the use of the ski area premises.”
Employing a strict construction analysis, the court concludes that this language is ambiguous and does not reflect an express mutually intended agreement that Laurene will indemnify the defendants against their own negligence. In fact, it seems more suited to an interpretation that the indemnification is for losses or damages caused by Nicholas while participating in the ski school.
8 See McGraw v. S.D. Warren Co., 656 A.2d 1222, 1224 (Me. 1995), where the court held that Cianbro did not specifically agree to indemnify Warren for damages caused by Warren’s own negligence where the clause provided:
The contractor [Cianbro] is responsible for and shall continuously maintain protection of all the work and property in the vicinity of the work from damage or loss from any cause arising in connection with the contract and any work performed thereunder. [Cianbro] shall indemnify and hold owner [Warren] harmless for any claims, suits, losses or expenses including attorneys’ fees suffered by [Warren] arising out of injury to any person including [Warren’s] or [Cianbro’s] employees or damage to any property, including [Warren’s] property if the injury or damage is caused in whole or in part by [Cianbro] or any of [Cianbro’s] subcontractors, material men or anyone directly or indirectly employed or otherwise controlled by any of them while engaged in the performance of any work hereunder.
[*15] Based on the conclusion that the Ski Enrollment Form does not include an indemnification by Laurene against the defendants’ own negligence, the court does not need to reach the plaintiffs’ further claim that the indemnification clause is unconscionable as a contract of adhesion. See Dairy Farm Leasing Co., Inc. v. Hartley, 395 A.2d 1135, 1139-40 (Me. 1978) (“where a standard-form, printed contract is submitted to the other on a ‘take it or leave it’ basis, upon equitable principles the provisions of the contract are generally construed to meet the reasonable expectations of the party in the inferior bargaining position; when a contract of adhesion is exacted by the overreaching of a party, the defense of unconscionability may be asserted”).
Pursuant to Rule 79(a) M.R.Civ.P., the Clerk is directed to enter this Decision and Order on the Civil Docket by a notation incorporating it by reference, and the entry shall be:
Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim is GRANTED;
Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint is DENIED; and
Defendants’ Motion for Summary Judgment on Count II of [*16] Plaintiffs’ Complaint is GRANTED.
Dated: May 8, 2000
/s/ signed
Justice, Superior Court
Markel top Five Camp Claims for 2010
Posted: November 23, 2010 Filed under: Insurance, Summer Camp Leave a commentClaims are mixed between general liability and property damage claims, but instructive.
Markel Insurance has listed their top five (5) claims for the 2010 camp season.
1. Auto-related events. The majority of driver-at-fault accidents involved backing into and hitting parked vehicles, colliding at intersections, rear-ending other vehicles, and striking objects such as deer and trees.
2. Tripping and falling accidents. These events often took place on playground equipment and during open-field game activities.
3. Wind damage. Wind-related damages were primarily caused by trees falling on structures during strong storms.
4. Abuse. Abuse allegations reported during 2010 were primarily camper-to-camper incidents.
5. Lightning damage. Damages occurred to office equipment, such as computers and telephone systems.
Auto, Wind and Lighting are property damage claims. In most cases, these are the real reasons why you have insurance. To pay for damage for things you cannot control, wind and weather.
Tripping and falling accidents are the curious claims listed. Kids fall down. Many of these claims can be avoided if the parents know that kids are going to be hurt when they run, jump and play.
The Markel Risk Management Tips newsletter can be seen here. To sign up for the newsletter go to CampInsurance.com. A complete article about the top five risks can be found at Train Your Staff with Lessons from the Past.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Ski Patroller dies in Avalanche at Wolf Creek
Posted: November 23, 2010 Filed under: Avalanche, Ski Area Leave a commentWolf Creek Ski Area closed after ski patrol director killed in avalanche
Patroller killed in Wolf Creek slide
Wolf Creek Ski Area closed after death of employee
The patroller was the ski patrol director, 41 year old Scott Kay.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Keywords: #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, #Wolf Creek Ski Area, #avalanche, #fatality, #employee,
Technorati Tags: Patroller,Avalanche,Wolf,Creek,Area,director,news,death,employee,Scott
Windows Live Tags: Patroller,Avalanche,Wolf,Creek,Area,director,news,death,employee,Scott
WordPress Tags: Patroller,Avalanche,Wolf,Creek,Area,director,news,death,employee,Scott
Whitewater rafting suit stopped because deceased signed a release.
Posted: November 22, 2010 Filed under: Release (pre-injury contract not to sue), Whitewater Rafting Leave a commentA well written release creates in a jurisdiction that supports releases creates short appellate court decisions.
Schoeps v. Whitewater Adventures LLC; 136 Fed. Appx. 966; 2005 U.S. App. LEXIS 13181
The plaintiffs are the parents of the deceased. The deceased went rafting with the defendant Whitewater Adventures LLC and died. The parents sued the rafting company and its owner.
Prior to the raft trip the plaintiff signed a release. The plaintiffs argued the deceased had non time to read the release and was forced to sign the release. If she did not sign the release the deceased would not have been able to go rafting and would have been stuck in an “isolated area.” The court stated the deceased would have also lost her pre-paid ticket price if she failed to sign the release. The court commented on all of these issues and found them unpersuasive. However, the fact the court commented on the issues is important and something to be aware of in the future.
The court held that the deceased was informed that she had to sign a release and the fact she might be stuck in an isolated area was not oppression to force a signature on the release by the deceased.
However, this is not sufficient to constitute oppression or lack of meaningful choice, particularly insofar as Sandra had been given a brochure before the rafting trip in which Whitewater Adventures stated: “[w]e require all trip participants to sign a liability release*968 waiver before embarking on your trip.”
The plaintiffs are also argued the release was unconscionable. The court found that unconscionability is a two part test. Failing to find both tests are met will violate the release. Here the court found:
Substantively, it is not unreasonable or unexpected for an organizer of adventure sports to reallocate risk to the participants through a liability waiver. Procedurally, there were no hidden terms in the liability release….
So?
Give your guests plenty of time to read and sign the release
Give your guests their money back if they don’t sign the release
Let your guests know, in advance, that they must sign a release before they can go rafting.
When a court lists items raised by the plaintiff as issues and comments about them, it is good for the immediate case. However it can also be picked up by other plaintiffs and other courts and used as a way to void your release in other decisions.
On a moral basis if you are as an operator of a business or program and someone finds out they do not want to engage in your activity, happily give them back their money.
Put on your website that participants will have to sign a release and put the release on the website also. With the new laws concerning electronic signatures of contracts you can even have your guests sign the release online. Let your customers know in advance what they are going to be undertaking so they do not have issues or questions in your office the day of the activity.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
6 Apps for Skiing
Posted: November 18, 2010 Filed under: Ski Area Leave a commentJust don’t lose your phone while riding the lift.
Mashable has a great article on six apps for skiing. The apps are:
1. REALSKI Augmented Reality
2. Vail’s EpicMix App
3. iTrailMap 3D
4. Snow and Ski Report by REI
5. Elevation Pro
6. snowEdge
RealSki allows you to hold up your phone and it will tell you what you are looking this. The app identifies runs as well as other things on the mountain. The RealSki video was filmed at Copper Mountain and Vail.
See Skiing and Snowboarding: 6 Apps For Conquering the Slopes.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Wisconsin Recreational Use Statute prevents lawsuit over accidental drowning of guests at sports club
Posted: November 15, 2010 Filed under: Swimming, Wisconsin | Tags: Adventure travel, Recreational Use Statute, swimming, Wisconsin, Wisconsin Supreme Court Leave a commentWI Supreme Court thoroughly reviews the definition of non-profit in examining the recreational use statute
Trinidad v. Capitol Indemnity Corporation, 2008 WI App 36; 308 Wis. 2d 394; 746 N.W.2d 604; 2008 Wisc. App. LEXIS 50 aff’d Trinidad v. Capitol Indemnity Corporation, 2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3
This is always a tough situation when the court has to apply the law no matter how sad the facts of the case. However, this is how our country works, the law controls no matter how hard the heartstrings are tuagged.
In this case, a family went to a wildlife area that was incorporated as a non-profit hunting club. While there, two young girls drowned. The parents sued the non-profit corporation for their loss. The trial court granted the defendants’ motion for summary judgment, which was upheld by the appellate court and the Wisconsin Supreme Court.
The legal issue was the application of the Wisconsin Recreational Land Use Statute, Wis. Stat. § 895.52 (2009). The state has different laws on how the protection of the recreational use statute will be applied based on the type of landowner. In this case, a landowner who is a non-profit, has broader protection if there is a fee charged for the use of the land.
The group that invited the plaintiffs to the hunting club paid the fee for the use of the land, not the plaintiffs. The plaintiffs were on the land for free.
The Wisconsin Recreational Use Statute first defines a non-profit as “Nonprofit organization” means an organization or association not organized or conducted for pecuniary profit.” Wis. Stat. § 895.52. The statute then defines the activities that will be protected by the statute.
Recreational activity” includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting and any other outdoor sport, game or educational activity
The families activities, picnicking and water sports, are specifically listed as protected.
The immunity afforded by the statute is specific.
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property, except as provided under s. 23.115 (2)
3. A duty to give warning of an unsafe condition, use or activity on the property. (b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owners property or for any death or injury resulting from an attack by a wild animal.
The statute then provides additional protection for non-profit entities as defined by the statute.
(5) LIABILITY; PROPERTY OF NONPROFIT ORGANIZATIONS.
Subsection (2) does not limit the liability of a nonprofit organization or any of its officers, employees or agents for a death or injury caused by a malicious act or a malicious failure to warn against an unsafe condition of which an officer, employee or agent of the nonprofit organization knew, which occurs on property of which the nonprofit organization is the owner.
The statute goes further to allow property owners to collect up to $2000.00 per year for the use of the property.
The court in Trinidad concentrated on the definition of a non-profit. The plaintiff argued the organization had not kept its articles of incorporation current with the changes in the statute over the years. The Wisconsin Statutes concerning Wisconsin non-profits had changed several times since the defendant had been incorporated as a non-profit entity.
However, the court did not find this controlling. The Wisconsin Secretary of State and the IRS still considered the defendant a non-profit and that was all that mattered.
So?
Many corporations forget that they may have to amend their articles of organization as the statutes controlling a corporation or LLC changes. Always check with an attorney, whether you are a non-profit or for profit entity to make sure your paperwork is current and up to date.
A big area that most corporations fail to do is titles. No state statute recognizes CEO. Although the CEO may be the top person, the president has all of the legal authority according to state law.
All fifty states in the US have recreational use statutes. All 50 of them are very different. If you are going to rely on the recreational use statute for protection from litigation, make sure you meet each of the requirements based on the activities occurring on your land and the type of landowner you are.
When in doubt, do not rely on the recreational use statute alone. Either receive an indemnification agreement from groups bringing people on to your land or have each person entering and using your land sign a release.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Keywords:
#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, #Recreational Use Statute, #Charitable Immunity, #non-profit, #Wisconsin, #Wisconsin Supreme Court, #Private Club, #Hunting Club Technorati Tags: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
Windows Live Tags: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
WordPress Tags: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
Blogger Labels: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
Trinidad v. Capitol Indemnity Corporation, 2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3
Posted: November 15, 2010 Filed under: Legal Case, Swimming, Wisconsin | Tags: Articles of Incorporation, Recreational Use, Recreational Use Statute, swimming, Wisconsin Leave a commentNelly De La Trinidad, Individually, and as Special Administrator of the Estate of Elizabeth Callejas-De La Trinidad, Deceased, and Victor Leonardo Aguilar-Hernandez, and Luz Maria Torres-Sanches, Individually, and as Special Administrator of the Estate of Marisol Aguilar-Torres, Deceased, Plaintiffs-Appellants-Petitioners, v. Capitol Indemnity Corporation, a Wisconsin Insurance Corporation, Halter Wildlife, Inc., and Rachel Proko, Defendants-Respondents.
No. 2007AP45
2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3
November 4, 2008, Argued
January 23, 2009, Filed
PRIOR HISTORY:
REVIEW of a decision of the Court of Appeals. COURT: Circuit. COUNTY: Kenosha. JUDGE: David M. Bastianelli. (L.C. No. 2005CV145).
De La Trinidad v. Capitol Indem. Corp., 2008 WI App 36, 308 Wis. 2d 394, 746 N.W.2d 604, 2008 Wisc. App. LEXIS 50 (2008)
DISPOSITION: Affirmed.
COUNSEL: For the plaintiffs-appellants-petitioners there were briefs by Patrick O. Dunphy, Robert D. Crivello, and Cannon & Dunphy, S.C., Brookfield, and oral argument by Robert D. Crivello.
For the defendants-respondents there were briefs by James S. Smith, Wendy G. Gunderson, and Smith, Gunderson & Rowen, S.C., Brookfield, and oral argument by Wendy G. Gunderson.
JUDGES: N. PATRICK CROOKS, J.
OPINION BY: N. PATRICK CROOKS
OPINION
[**327] [***588] [*P1] N. PATRICK CROOKS, J. Petitioners Nelly De La Trinidad, Victor Leonardo Aguilar-Hernandez, and [**328] Luz Maria Torres-Sanches (collectively, De La Trinidad) are the parents of two children who drowned in a pond on the grounds of Halter Wildlife, Inc. De La Trinidad seeks review of an unpublished court of appeals opinion 1 affirming a circuit court order that dismissed their lawsuit against Halter Wildlife, Inc. (Halter); its insurer, Capitol Indemnity Corporation; and lifeguard Rachel Proko, an employee of Halter, on the grounds that the recreational immunity statute 2 applies and bars a suit under these circumstances.
1 Nelly De La Trinidad v. Capitol Indem. Corp., No. 2007AP45, 2008 WI App 36, 308 Wis. 2d 394, 746 N.W.2d 604, unpublished slip op. (Wis. Ct. App. Jan. 23, 2008).
2 Wis. Stat. § 895.52 (2005-06). All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
[*P2] The sole question before us is whether Halter is “an organization or association not organized or conducted for pecuniary profit” under Wis. Stat. § 895.52(1)(c) and as such entitled to immunity from liability for negligence, as well as for safe place violations, for any deaths occurring during recreational activity on Halter’s land. 3 De La Trinidad contends that Halter cannot be a nonprofit organization for two reasons: first, because it was incorporated in 1984 under the statute that since 1953 has governed for-profit corporations; and second, because it supplemented membership dues with revenues from other [**329] activities–revenues that created a budget surplus or profit which in turn meant dividends for members in the form of dues that were lower than they would otherwise have been. Halter argues that its articles of incorporation show that it was organized as a nonprofit, and its financial records and its status with the Internal Revenue Service (IRS) and the Wisconsin Department of Financial Institutions (DFI) show that it is not conducted for profit and has never paid any dividends.
3 Because the statute also grants immunity to the employees and agents of nonprofit landowners, and because Proko is being sued in her capacity as an employee of Halter, the resolution of this question affects the claims against Proko as well. “[N]o owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property. . . .” Wis. Stat. § 895.52(2)(b).
[*P3] The recreational immunity statute does not define nonprofits by referencing the chapter under which they were incorporated, either chapter 180 or 181, so that factor is not dispositive of the question. We see no basis in the statute for defining “profit” as broadly as De La Trinidad urges. Halter’s articles of incorporation, tax returns, and financial statements make clear that it was organized and is conducted as a nonprofit organization, a fact recognized by both Wisconsin and the federal government. For these reasons, explained more fully below, Halter is a nonprofit organization as defined by the statute and is thus entitled to immunity.
[*P4] We therefore affirm the decision of the court of appeals.
[***589] I. BACKGROUND
[*P5] Though it filed restated articles of incorporation in 1984 and 1988 which varied in some respects from the original articles, Halter has since its inception consistently defined itself as a nonprofit stock corporation under ch. 180 of the Wisconsin Statutes. These articles and successive restated articles of incorporation were accepted for filing by the secretary of state. The current articles of incorporation describe Halter as a [**330] hunt and sportsman club with the purpose of promoting wetlands preservation and environmental education.
Its regulations allow its approximately 275 dues-paying members to invite guests 4 to events held on the club’s grounds, which include a clubhouse, a picnic area, a ball park, and a beach and pond used for fishing and swimming. In addition to annual membership dues, Halter collects extra fees from members who host picnics and other events to which guests are invited.
4 The general public does not have access to Halter’s facilities; only club members and their guests may be on the property. Payment of invoices or statements is required under the organization’s regulations to be made by a member’s check.
[*P6] It was at one such event, a company picnic hosted on July 13, 2002, by Finishing and Plating Services (FPS) of Kenosha, 5 that the tragic drownings of the two children occurred.
5 The picnic guests were not charged admission; in keeping with Halter’s regulations, FPS, which held a corporate membership with Halter, paid the invoice for the picnic.
[*P7] De La Trinidad filed this lawsuit, alleging negligence and safe place violations by Halter, and negligence by Proko. The Kenosha County Circuit Court, the Honorable David Bastianelli presiding, granted summary judgment for the defendants. The circuit court noted that despite Halter’s organization under ch. 180 6 as a nonprofit stock corporation, all of the documentation of its existence, from its articles of incorporation to its tax returns, supported the conclusion that it was organized as a nonprofit. The circuit [**331] court also concluded that under the statute’s definition, Halter’s fund-raising activities did not make it a for-profit corporation, noting that the record showed no distributions of profits or earnings to members. The court of appeals affirmed, pointing out that the recreational immunity statute does not define nonprofit with reference to the chapter under which the organization is incorporated. The court of appeals also found that Halter’s nonprofit status turned not on how funds were generated, but rather on how they were used. It noted, “[M]ost importantly, Halter is not organized to distribute profits to anyone, and it does not do so.” Nelly De La Trinidad v. Capitol Indem. Corp., No. 2007AP45, 2008 WI App 36, 308 Wis. 2d 394, 746 N.W.2d 604, unpublished slip op., P15 (Wis. Ct. App. Jan. 23, 2008). For those reasons it affirmed the circuit court. De La Trinidad petitioned this court for review, and on May 13, 2008, review was granted.
6 The present version of ch. 180 of the Wisconsin Statutes governs “Business Corporations,” which include those issuing stock. Wis. Stat. § 180.0103(5). The present version of ch. 181 governs “Nonstock Corporations,” which are defined as including nonprofit corporations. Wis. Stat. § 181.0103(5).
II. STANDARD OF REVIEW
[*P8] [HN1] The application of a statute to undisputed facts is reviewed de novo. Wis. Dep’t of Revenue v. Menasha Corp., 2008 WI 88, P44, 311 Wis. 2d. 579, 754 N.W.2d 95.
[***590] III. DISCUSSION
[*P9] The question we address is whether Halter was a nonprofit organization under the recreational immunity statute 7 and is therefore entitled to immunity [**332] from liability for negligence, as well as for the claimed safe place violations. [HN2] Nonprofit organizations are among the types of property owners to whom immunity is extended under the statute. 8 7 Wisconsin Stat. § 895.52(2):
[HN3] No duty; immunity from liability. (a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner’s property to engage in a recreational activity:
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property, except as provided under s. 23.115(2).
3. A duty to give warning of an unsafe condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property . . . .
Subsections (3) to (6) do not apply in this case. They deal with government property, malicious acts, and private property owners who collect fees for recreational use of the land in excess of $ 2,000 per year.
There is no dispute here either as to the ownership of the land or as to the recreational nature of the activity.
8 Wisconsin Stat. § 895.52(1), (c) and (d):
[HN4] (c) “Nonprofit organization” means an organization or association not organized or conducted for pecuniary profit.
(d) “Owner” means either of the following:
1. A person, including a governmental body or nonprofit organization, that owns, leases or occupies property. . . .
[*P10] We begin of course with [HN5] the statute’s definition of a nonprofit organization as “an organization or association not organized or conducted for pecuniary profit.” Wis. Stat. § 895.52(1)(c). We address each prong in turn: how Halter is organized and how it is conducted. 9
9 Wisconsin Stat. § 895.52(1)(c) uses the wording “not organized or conducted for pecuniary profit,” which can be read as intending to mean both prongs would have to be met (as in, “neither organized nor conducted for pecuniary profit”) or as intending to mean that at least one prong would have to be met (as in, “not organized or not conducted for pecuniary profit”).
Yet, in Szarzynski, this court has called the language “clear on its face and capable of one simple construction–that the organizations that are organized and/or conducted for purposes other than profit-making are eligible for recreational immunity under the statute.” Szarzynski v. YMCA, 184 Wis. 2d 875, 890, 517 N.W.2d 135 (1994). Neither party argues that Wis. Stat. § 895.52(1)(c) may be interpreted in the conjunctive or disjunctive, and it is not necessary for us to consider the question here. Halter does not argue that because it was either organized or conducted as a nonprofit, it was entitled to immunity. Rather, it argues that it met both requirements. We recognize that the “and/or” construction often can be problematic. See, e.g., Wisconsin Bill Drafting Manual § 2.01(9)(a) (2009-10) (“Never use the compound ‘and/or.’ ‘And’ is conjunctive and ‘or’ is disjunctive; decide whether you mean ‘and’ or ‘or’ and use the proper word.”).
[**333] A. “Not organized . . . for pecuniary profit”
[*P11] De La Trinidad’s contention that Halter is organized for pecuniary profit centers on the fact that, as Halter’s restated articles of incorporation provide, it is organized as a stock-issuing corporation “pursuant to the authority and provisions of Chapter 180 of the Wisconsin Statutes.” De La Trinidad contends that this means it is by definition a for-profit–or at best a corporation masquerading as a nonprofit while reserving the legal right to convert to for-profit whenever it chooses–regardless of what its articles of incorporation currently say.
[***591] [*P12] Halter argues that the question of whether it is organized for pecuniary profit is answered by the statement of purpose in its articles of incorporation: “The corporation will be a non-profit corporation which is to be formed not for private profit but exclusively for educational, benevolent, fraternal, social and athletic [**334] purposes within the meaning of Section 501(c)(7) of the Internal Revenue Code of 1954 . . . .” The articles of incorporation, Halter argues, are consistent with its status with the federal and state governments: the Department of the Treasury granted it tax exempt status under § 501(c)(7) of the Internal Revenue Code, and the state Department of Financial Institutions has confirmed that it has operated since its inception as a nonprofit. Halter points to our decision in Szarzynski v. YMCA, 184 Wis. 2d 875, 890, 517 N.W.2d 135 (1994), in which we cited the definition provided in Black’s Law Dictionary for the term “nonprofit corporation.” That definition made explicit reference to the federal tax code 10 and included corporations “no part of the income of which is distributable to its members, directors or officers.” Id. at 890 (quoting Black’s Law Dictionary 1056 (6th ed. 1990)). Because it distributes no income to members, directors or officers and because it is a nonprofit for purposes of federal taxation, Halter argues that it is organized as a nonprofit.
10 In fact, part of the dictionary’s definition of “nonprofit corporation” not quoted in Szarzynski refers readers to I.R.C. § 501(c) “for a list of exempt organizations.” Black’s Law Dictionary 1056 (6th ed. 1990). The clear inference from that definition is that it intends to define all § 501(c) organizations as nonprofit corporations.
[*P13] A brief summary of the history of chapters 180 and 181 will help make sense of the parties’ arguments. Prior to 1953, it was not unusual for Wisconsin organizations to be incorporated as nonprofit stock corporations under ch. 180. There was a change in the statute, however, that took effect that year and remained in effect at the time of Halter’s incorporation, and it is not entirely clear whether by that change, the legislature intended to continue to permit nonprofit [**335] stock organizations under ch. 180. De La Trinidad relies on a 1958 opinion of the attorney general that examined the statute and concluded otherwise: “[A] nonprofit stock corporation cannot be lawfully organized under ch. 180 subsequent to July 1, 1953 . . . .” 47 Wis. Op. Att’y Gen. 78, 81 (1958).
[*P14] As even that attorney general’s opinion acknowledged, however, it is difficult to reconcile several provisions of the statute. 11 One provision, for example, defines “corporation” as including “a corporation with capital stock but not organized for profit.” Wis. Stat. § 180.02(1) (1957). Another appears to contemplate nonprofits organized under ch. 180 even after 1953: “After June 30, 1953 ch. 180 shall apply to all domestic corporations with capital stock, regardless of when they were organized and whether for profit or not . . . .” Wis. Stat. § 180.97(1) (1957) (emphasis added). However, that same section contains a provision that refers only to nonprofits formed prior to 1953, and is silent as to nonprofits formed thereafter: “any domestic corporation with capital stock but not organized for profit which has before July 1, 1953, been organized under the general corporation laws . . . shall be subject to ch. 180 only to the extent that the provisions of ch. 180 are not inconsistent [***592] with the articles or form of organization of such corporation . . . .” Id. (emphasis added).
11 The opinion noted, “It would have been much more explicit if the legislature had stated plainly that no stock nonprofit corporations are to be organized under ch. 180 after July 1, 1953.” 47 Wis. Op. Att’y Gen. 78, 81 (1958).
[*P15] The attorney general’s 1958 opinion in response to a query from the secretary of state acknowledged that the statute “does say that there can be such a thing as a corporation with capital stock but not [**336] organized for profit.” 47 Wis. Op. Att’y Gen. at 80. The opinion also said Wis. Stat. § 180.97(1) “leaves the door wide open for nonprofit stock corporations” because the language in that section is “about as all-embracing as human draftsmanship can devise.” Id. Nevertheless, in light of an absence of any language in Wis. Stat. § 180.97(1) (1957) about post-1953 stock nonprofits, the attorney general advised that absent explicit statutory authority, the secretary of state “would be justified in finding that the proposed articles [for a nonprofit stock] do not conform to law.” Id. at 81.
[*P16] De La Trinidad urges us to adopt the reasoning of that attorney general’s opinion and reach the same conclusion concerning Halter’s articles of incorporation. Of course, we are not bound to do so. [HN6] “‘An Attorney General’s opinion is only entitled to such persuasive effect as the court deems the opinion warrants.'” State v. Gilbert, 115 Wis. 2d 371, 380, 340 N.W.2d 511 (1983) (quoting Hahner v. Bd. of Educ., 89 Wis. 2d 180, 192, 278 N.W.2d 474 (Ct. App. 1979)). In this case, the opinion does not warrant great persuasive effect; it candidly acknowledges broad language in the statute, for example, that leads to the opposite conclusion. However, even if the attorney general’s opinion was correct as to ch. 180 nonprofits, it merely concluded that the secretary of state “would be justified” in rejecting articles of incorporation for such an organization. 12
12 Even if the secretary of state erred in permitting a nonprofit to organize under ch. 180 rather than requiring it to organize under ch. 181, it does not follow that such an error alone would convert Halter into a for-profit organization. The court of appeals accordingly held that “whether Halter’s form of organization is lawful or not is not the issue in this case.” De La Trinidad, No. 2007AP45, 2008 WI App 36,, 746 N.W.2d 604, unpublished slip op., P8. We agree.
[**337] [*P17] Which brings us to a key point: notwithstanding the attorney general’s opinion on the matter, there is no dispute that the secretary of state did accept and file Halter’s articles of incorporation and restated articles of incorporation. Three times. From the repeated filing and acceptance it is reasonable to infer that the acceptance was intentional and that the secretary of state saw no legal impediment to Halter’s incorporation as a nonprofit under ch. 180. 13 [HN7] Under Wis. Stat. § 180.0203(2), filing of the articles of incorporation by the DFI “is conclusive proof that the corporation is incorporated under this chapter . . . .”
13 It is clear that a different policy was in effect in 1958 in the secretary of state’s office; the attorney general’s opinion from that year makes reference to the fact that the office at that time was “refus[ing] to accept such articles for filing[.]” 47 Wis. Op. Att’y Gen. at 79.
[*P18] That the State of Wisconsin accepted Halter’s incorporation on those terms is verified by the certified document from the secretary of state that confirmed the filing in 1988. It is also confirmed by a 2005 letter from the DFI, which, in response to a letter from Halter about the organization’s status and designation on the DFI online database, stated:
Regarding your written request involving the corporate status of Halter Wildlife, Inc. I have examined the records for this corporation and have determined [***593] that you are correct in that this entity has, since its inception, been a “stock, not-for-profit corporation.[“] Unfortunately, when our database was created we did not set forth a specific “status code” for “stock, not-for-profit” entities. Therefore, although it is a not-for-profit entity, it was included with all other corporations formed [**338] under Chapter 180 having a status code of “01” which reflects the entity as a business corporation on our records. [Emphasis added.]
[*P19] A second, related argument made by De La Trinidad is that an organization formed under ch. 180 cannot be a nonprofit because there is nothing in the law governing it that prevents Halter’s members from voting to amend its articles and becoming a for-profit corporation. De La Trinidad notes that Halter’s articles of incorporation allow the organization to “engage in lawful activity within the purposes for which corporations may be organized under the Wisconsin Business Corporation Law.” Because it was organized under ch. 180, which allows for the distribution of profits to shareholders under Wis. Stat. § 180.0640, De La Trinidad argues that Halter left open the possibility of distributions to shareholders.
[*P20] De La Trinidad cites language from two cases from other jurisdictions in support of the proposition that the mere potential for for-profit conduct should preclude defining Halter as a nonprofit. Both involve organizations that unsuccessfully sought tax exemption by claiming to be nonprofit organizations. Ukranian National Urban Renewal Corp. v. Director, Division of Taxation, 3 N.J. Tax 326 (1981), is easy to distinguish, however, from this case; it turned on the fact that “[t]he organizational focus of this tax exemption statute is on the statute pursuant to which the taxpayer was organized and whether stock was authorized.” Id. at 331 (emphasis added). In other words, the statute at issue there defined a nonprofit in exactly the way the recreational immunity statute does not: pursuant to the statute under which the property owner is organized. The second case, Produce Exchange Stock [**339] Clearing Association, Inc. v. Commissioner of Internal Revenue, 27 B.T.A. 1214, 1219 (1933), is cited for the proposition that a corporation cannot use the fact that dividends have never been paid to claim nonprofit status, when it has retained a legal ability to do so. The case concerned whether the plaintiff was tax-exempt under a statute exempting “business leagues,” which functioned like chambers of commerce. Thus, the central determination was that the plaintiff did not meet the statutory definition of a business league and was therefore not tax-exempt. The language cited by De La Trinidad was an afterthought. (“Although up to the present time the petitioner has not paid any dividends to its stockholder, the New York Produce Exchange, there appears to be no reason under the law why it could not amend its by-laws and pay dividends to its sole stockholder.” Id. at 1219.) Further, on appeal, the Second Circuit Court of Appeals limited its ruling solely to the “business league” question and expressly declined to reach the remainder of the questions. See Produce Exch. Stock Clearing Ass’n, Inc. v. Helvering, 71 F.2d 142, 144 (2d Cir. 1934). In short, for the reasons noted, neither of these cases are as persuasive as De La Trinidad argues.
[*P21] While the “potential for profit” argument may have some merit, it is essentially an argument that it is not good public policy to provide immunity under Wis. Stat. § 895.52 to a nonprofit corporation that has, by incorporating under ch. 180, left open legal avenues for a later change to a for-profit corporation. In other words, it can be argued that the better policy is for the benefits afforded to nonprofits [***594] under the statute to accrue only to those nonprofits that are, by virtue of their incorporation under ch. 181, committed to staying a nonprofit. It is significant, however, that the legislature [**340] did not choose to define nonprofits in Wis. Stat. § 895.52 with reference to the statute under which they were incorporated. 14
14 We note that in some other cases, the legislature has defined nonprofit organization in those terms. See, e.g., Wis. Stat. § 26.40(1c) (referencing “a nonprofit corporation, as defined in s. 181.0103(17)”).
[*P22] Having established that incorporation under ch. 180 does not preclude Halter from being organized as a nonprofit, we arrive at the question of what makes a nonprofit a nonprofit. A leading treatise says the articles of incorporation are the place to focus, and it bolsters our view that the chapter under which Halter is organized is not dispositive here (note especially the second sentence):
[HN8] In order to determine the purpose for which a corporation was created, courts will primarily refer to the stated purpose in the articles of incorporation. . . . A recitation in the articles of incorporation that an organization is organized under a particular statute is not dispositive of the nature of the organization; instead, a corporation’s statement of purpose in its articles determines the corporation’s true nature.
1A Carol A. Jones & Britta M. Larsen, Fletcher Cyclopedia of the Law of Private Corporations § 139 (citing State v. Delano Cmty. Dev. Corp., 571 N.W.2d 233 (Minn. 1997)).
[*P23] We thus turn to the substantive provisions of Halter’s restated articles of incorporation, and we see they:
– explicitly define Halter as a nonprofit;
– [**341] forbid income to inure to the benefit of any trustee, director or officer;
– forbid dividends or distributions to be made to stockholders or members;
– limit Halter to activities permissible to a particular type of nonprofit, § 501(c)(7) organizations; and
– provide for its assets to be turned over to a public body or another nonprofit in the event of its dissolution.
[*P24] As noted above, this court has said that [HN9] organizations that are organized “for purposes other than profit-making” are eligible for recreational immunity under the statute. Szarzynski, 184 Wis. 2d at 890.
[*P25] The most recent restated articles of incorporation for Halter are those filed with the Office of the Secretary of State in 1988. 15 They were the documents in effect at the time of the drownings in 2002. They state in part:
[**342] [***595] The purpose of this corporation is to engage in lawful activity within the purposes for which corporations may be organized under the Wisconsin Business Corporations Law. The corporation will be a non-profit corporation which is to be formed not for private profit but exclusively for educational, benevolent, fraternal, social and athletic purposes within the meaning of Section 501(c)(7) of the Internal Revenue Code of 1954 and in this connection, to promote a hunt and sportsman club, to preserve the environment in its natural setting and to promote education of citizens and youth as to the need to conserve and retain wetlands and adjacent uplands in a natural state . . . .
15 We take judicial notice of the 1988 Restated Articles of Incorporation as we are authorized to do [HN10] under Wis. Stat § 902.01(2)(b), which provides that “A judicially noticed fact must be . . . [a] fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Wis. Stat. § 902.01(3) and (6) provide “[a] judge or court may take judicial notice, whether requested or not[]” and “[j]udicial notice may be taken at any stage of the proceeding.” See Gupton v. City of Wauwatosa, 9 Wis. 2d 217, 101 N.W.2d 104 (1960) (taking judicial notice of articles of incorporation recorded in the office of the secretary of state). The briefs filed with this court quoted the 1984 version and the record included only 1984 versions of the articles of incorporation. The 1988 articles of incorporation were not included despite the fact that references were made to them in documents in the record (e.g., in a letter attached to an affidavit filed by respondents and in a brief filed with the circuit court by De La Trinidad). This error was not cleared up until after oral arguments. Because the 1988 articles of incorporation are the relevant articles, there is no need to address the earlier versions.
[*P26] Additional relevant provisions reiterate the nonprofit nature of the organization:
ARTICLE IV: The corporation has not been formed for pecuniary profit or financial gain, and no part of the assets, income or profit of the corporation is distributable to, or inures to the benefit of, its officers or directors, except to the extent permitted under Wisconsin law. . . . Notwithstanding any other provision of this certificate, the corporation shall not carry on any other activities not permitted to be carried on by a corporation exempt from federal income tax under Section 501(c)(7) of the Internal Revenue Code of 1954, (or the corresponding provisions of any future United States Internal Revenue law).
. . . .
ARTICLE VIII: No part of the income of the corporation shall inure to the benefit of any trustee, director or officer of the corporation, except that reasonable compensation may be paid for services rendered to or for the corporation affecting one or more of its purposes. In the event of liquidation of the assets of the corporation [**343] any assets available for distribution at the time of such liquidation shall be turned over to an educational, benevolent, fraternal, social, scientific, religious or athletic association within the meaning of Section 501(c)(7) of the Internal Revenue Code of 1954, or to a public body. Furthermore, no dividends or distributions shall be made to stockholders or members of the corporation during its existence and that upon its liquidation the stockholders or members may receive back no more than their original investment.
(Emphasis added.)
[*P27] The language of the articles of incorporation is clear. It directly prohibits distributions to members, trustees, directors and officers, and covers the liquidation of the organization’s assets at dissolution. De La Trinidad asserts, rather incredibly, that the articles of incorporation are irrelevant to the determination of whether Halter was organized for profit. We cannot agree. It is clear beyond any doubt that Halter’s relevant organizing documents establish an organization with a purpose other than profit-making. As to De La Trinidad’s argument about Halter’s ability under ch. 180 to amend the articles, that ability would become relevant only at the point the organization chose to do so. The immunity extended to nonprofit organizations under Wis. Stat. § 895.52, in other words, continues to extend to Halter unless it amends its articles to allow for a purpose of achieving pecuniary profit.
B. “Not . . . conducted for pecuniary profit”
[*P28] De La Trinidad’s second argument, that Halter does not qualify for immunity under the statute because it is conducted for pecuniary profit, depends on a sort of “penny saved is a penny earned” definition of [**344] profit. This argument is [***596] based on the fact that Halter operated in the black, taking in more revenues than it required for operating expenses; the fact that not all the revenue was from membership dues; and the fact that the income of the organization was therefore distributed, albeit indirectly, to the members, just as if dividends had been paid. This is because those additional fees ultimately reduce the membership dues, De La Trinidad argues; the difference between what the dues are and what they would be without the additional revenues is, according to this argument, the individual member’s dividend.
[*P29] Halter argues that profits from picnics do not affect its immunity because they were returned to the organization, not distributed to members. The relevant inquiry, Halter argues, is whether it made distributions to directors, officers, or members, and its financial statements and tax returns make clear that it never has done so. Halter further points out that De La Trinidad’s approach, limiting nonprofit status to those organizations operating at a deficit, is unworkable and undesirable.
[*P30] De La Trinidad’s arguments rest on broad definitions of the terms “profit” and “distribution.” In support of its position, De La Trinidad cites language from State ex rel. Troy v. Lumbermen’s Clinic, 186 Wash. 384, 58 P.2d 812 (Wash. 1936), a case having to do with a corporation that the state believed had falsely incorporated as a nonprofit while operating as a for-profit. In finding for the state, the court there defined profit thus: “Profit does not necessarily mean a direct return by way of dividends, interest, capital account, or salaries. . . . [I]n considering . . . the question of whether or not respondent is or is not operated for profit, money saved is money earned.” Id. at 816. This holding is at quite a [**345] variance from a standard legal definition of “profit,” as found in Black’s Law Dictionary: “The excess of revenues over expenditures in a business transaction; GAIN (2). Cf. EARNINGS; INCOME.” Black’s Law Dictionary 1246 (8th ed. 2004). There is nothing in the statute that would support such an expansive definition of the word “profit.” 16
16 [HN11] “When giving a statute its plain and ordinary meaning, courts refer to dictionaries to define those terms not defined by the legislature. Wisconsin Stat. § 990.01(1) provides that ‘[a]ll words and phrases shall be construed according to common and approved usage; but technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning.'” Rouse v. Theda Clark Med. Ctr., Inc., 2007 WI 87, P21, 302 Wis. 2d 358, 735 N.W.2d 30 (citation omitted).
[*P31] De La Trinidad also relies on St. John’s Military Academy v. Larson, 168 Wis. 357, 170 N.W. 269 (1919), for the proposition that when an organization operates in the black, it “materially enhance[s] the value of its capital stock, resulting in a pecuniary profit to the shareholders.” Id. at 361. As the underlying facts of the case make clear, it was not the indirect enhancement of the stock that made St. John’s Military Academy a for-profit organization; it was the fact that it was organized as a profit-sharing corporation and had in two prior years declared a dividend on its stock.
[*P32] De La Trinidad’s arguments are unavailing. To adopt them would, with the stroke of a pen, convert innumerable nonprofits in Wisconsin to for-profit enterprises by virtue of the fact that their bills are paid and they have money in the bank. Such a rule would operate to strip any solvent § 501(c)(7) organization of its nonprofit status. In fact, neither case compels the outcome that De La Trinidad seeks. First, St. John’s is [**346] a case about a for-profit organization in the first place. In St. John’s this court noted that the school’s [***597] “articles of incorporation show that it is organized to conduct a private enterprise upon the plan of a profit-sharing corporation . . . .” St. John’s, 168 Wis. 2d at 361. Further, the case shows that “in 1900 and 1901 it declared a small dividend on its stock.” Id. at 360. In contrast, Halter’s articles of incorporation explicitly describe the organization as a non-profit, and there is no allegation that cash distributions have ever been made to members.
[*P33] De La Trinidad’s “indirect benefits” argument is unsupported by Wisconsin case law. [HN12] So long as no profits are distributed to members, the fact that members may obtain other benefits from an organization is no bar to its nonprofit status. That this is the law in Wisconsin is made clear from a reading of Bethke v. Lauderdale of La Crosse, Inc., 2000 WI App 107, P13, 235 Wis. 2d 103, 612 N.W.2d 332. In Bethke, the plaintiff challenged the condo association’s status as a nonprofit organization and its entitlement to immunity under the recreational immunity statute. The basis for the challenge was, among other things, that the statute was unconstitutional when it protected property owners who were nonprofit organizations that further no charitable purposes. There the sole purpose for the revenues raised (in that case, monthly fees from each member) was “to provide for the maintenance, preservation and control of the common area [of the condo].” Id. The court found no bar in the statute for the benefits that accrued to the members, and, consistent with the reasoning in Bethke, we see none here.
[*P34] As the court of appeals observed when it decided the case before us, “even nonpublic-service-oriented [**347] nonprofits receive nonprofit immunity under the statute. . . . Bethke specifically rejected the argument that a nonprofit must [] be charitable to claim the benefit of recreational immunity. In Bethke . . . the defendant was a condominium association, and its revenues were presumably used solely for the benefit of the few people who happened to live in the condominium development.” De La Trinidad, No. 2007AP45, 2008 WI App 36, 308 Wis. 2d 394; 746 N.W.2d 604, unpublished slip op., P14 (citations omitted).
[*P35] Contrary to De La Trinidad’s assertions, there is substantial evidence of Halter’s being conducted as a nonprofit. Halter is recognized by the IRS as a § 501(c)(7) nonprofit organization; 17 documents from the IRS in the record confirm that Halter qualifies as a tax-exempt organization under the Internal Revenue Code. The record also contains Halter’s 2002 IRS Form 990, Return of Organization Exempt from Income Tax, in which Halter identifies itself as a § 501(c)(7) organization. A letter from the IRS dated November 23, 1990, states that Halter’s “organization continues to qualify for exemption from Federal income tax” under § 501(c)(7).
17 The Internal Revenue Code exempts from taxation “[c]lubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder.” I.R.C. § 501(c)(7) (2006).
[*P36] There is no indication in the record that Halter brings in revenues from outside of its membership though it could do so under IRS guidelines without forfeiting its nonprofit status. 18 The record includes [**348] [***598] regulations from Halter that show that it requires all invoices to be paid by member checks. Deposition testimony in the record is clear that the attendees at the picnic giving rise to this action were not charged for the picnic; a Halter member, FPS of Kenosha, paid the invoice.
18 According to an official IRS publication, “A section 501(c)7 organization may receive up to 35% of its gross receipts, including investment income, from sources outside of its membership without losing its tax-exempt status. Of the 35%, up to 15% of the gross receipts may be derived from the use of the club’s facilities or services by the general public or from other activities not furthering social or recreational purposes for members.” IRS Publication 557 at 49 (Rev. June 2008).
[*P37] A law review author described the standard controlling inquiry for nonprofits:
[HN13] The defining characteristic of a nonprofit corporation is that it is barred from distributing profits, or net earnings, to . . . its directors, officers or members. That does not mean that it is prohibited from earning a profit. Rather, it is only the distribution of those earnings as dividends that is prohibited.
Jane C. Schlicht, Piercing the Nonprofit Corporate Veil, 66 Marq. L. Rev. 134, 136 (1982) (internal quotations omitted).
[*P38] The record is replete with evidence that supports Halter’s 27-year existence as a nonprofit. It would be an absurd result if we were to read the recreational immunity statute as making a for-profit organization out of an organization that throughout its existence has been governed by articles of incorporation that define it as a nonprofit, has been documented by state agencies as a nonprofit, and has been in compliance with IRS regulations as a nonprofit. Like the circuit court and court of appeals, we see no failure on Halter’s part to meet the requirements necessary to be a nonprofit and thus to be entitled to immunity here.
[**349] IV. CONCLUSION
[*P39] The recreational immunity statute does not define nonprofits by referencing the chapter under which they were incorporated, either chapter 180 or 181, so that factor is not dispositive of the question. We see no basis in the statute for defining “profit” as broadly as De La Trinidad urges. Halter’s articles of incorporation, tax returns, and financial statements make clear that it was organized and is conducted as a nonprofit organization, a fact recognized by both Wisconsin and the federal government. For these reasons, Halter is a nonprofit organization as defined by the statute and is thus entitled to immunity.
[*P40] We therefore affirm the decision of the court of appeals.
By the Court.–The decision of the court of appeals is affirmed.
Colorado Avalanche Information Center Benefit Bash in Breckenridge
Posted: November 13, 2010 Filed under: Avalanche Leave a commentThird Annual Benefit Bash on the Breckenridge River Walk.
The Friends of the CAIC is proud to host the Third Annual CAIC Benefit Bash, a benefit for the Colorado Avalanche Information Center (CAIC), on November 13th, 2010 at the Breckenridge Riverwalk Center. We invite you to help support the CAIC in their efforts. The evening will be filled with live music, an array of tasty food, incredible beer from New Belgium Brewery, and great people. We will be hosting another massive silent auction, while throwing door prizes to the crowd.
Half of the funding for the CAIC’s backcountry forecasting and education comes from grants and donations. The Friends of the CAIC are the single biggest supporter of the CAIC’s backcountry program. Please come to the Benefit Bash and support avalanche safety in Colorado.
The Friends of the Colorado Avalanche Information Center (CAIC) is a non‐profit 501(c)3 organization created to support the CAIC, while contributing to avalanche awareness and education throughout the State of Colorado. They achieve this mission through donations, grants, and fundraising events. If you think avalanche forecasting, education, and awareness is important in Colorado, then this party is for you. A $25 donation at the door includes one door prize ticket, two beer tickets, dinner, and entertainment from Zen Mustache.
For more information or to purchase tickets online go to www.friendsofcaic.org
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
SIA Snow Show Reaches Sold Out Status
Posted: November 12, 2010 Filed under: Ski Area Leave a commentSnow Show will feature over 800 brands, 90+ new exhibitors at Colorado Convention Center
McLean, VA (Nov 11, 2010) – SnowSports Industries America (SIA) announced today it has sold out their exhibit booth space for the upcoming 2011 SIA Snow Show, which will run Jan. 27-30 at the Colorado Convention Center in Denver. The annual Snow Show is expected to draw over 18,000 attendees including suppliers, retailers, reps, athletes and professionals from the snow sports industry. The sold-out Snow Show will feature over 800 snow sports brands throughout 300,000+ square feet of exhibit space including 90+ new exhibitors.
With over 90 new companies exhibiting at the 2011 Snow Show – either making their first appearance or returning to SIA after taking a break from the Show — attendees will discover plenty of new faces, products and companies alongside their longtime favorites during the four-day event.
“I first came to the SIA through the Ski Channel in 2008 and it felt like the entire snow sports industry came together in one spot and that’s just the ideal situation for networking. That’s really why our new brand — Skihoe decided to invest in a booth at the SIA,” said first time exhibitor, Sinah Hoenig, CEO, Skihoe, Inc.
For other companies, the Snow Show’s Colorado location has been an incentive to exhibit.
“Having the Show in Denver is a huge benefit for us,” said Joel Grabenstein, marketing and promotions manager at Yakima. “Its proximity to some of the best skiing and riding in the world makes it a better venue, especially with the demo being at Winter Park. The Show seems re-energized with our key retailers walking the Show.”
“SIA is a natural step for us as we expand our presence in the ski and snowboard markets,” said Marc Barros, Contour’s co-founder and CEO “It’s the ideal place for us to have meaningful dialogue with both retailers and key members of the vertical and broad-based media.”
For a complete list of 2011 Snow Show exhibitors please click here.
From January 27-30, 2011, the snow sports industry will take over downtown Denver to celebrate their passion for all things snow. The 2011 SIA Snow Show will once again celebrate the industry and deliver the hottest snow sports trends, innovations, educational seminars, product presentations, personalities, events, concerts, meetings, and parties. Attendees conduct business that can only happen at the Show – viewing full color-lines and major trends for winter 2011.12, meeting with key principals, and networking with industry leaders face-to-face.
The 2011 SIA Snow Show will be followed by a two day On-Snow Demo and Ski-Ride Fest, January 31 & February 1 at Winter Park Resort and Devil’s Thumb Ranch. In partnership with CCSAA (Cross Country Ski Areas Association) and in conjunction with WWSRA’s (Western Winter Sports Reps Association) Rocky Mountain Demo, this is where for the first time-globally, the market can try out the equipment and experience the latest technologies for ski, snowboard, AT, backcountry, cross country and snowshoe while mixing with their peers on the hill.
Technorati Tags: Reaches,Sold,Status,From,January,industry,downtown,Denver,passion,trends,innovations,seminars,product,presentations,personalities,events,concerts,meetings,Attendees,winter,principals,leaders,Demo,Ride,Fest,February,Park,Resort,Devil,Thumb,Ranch,partnership,CCSAA,Cross,Country,Areas,Association,conjunction,WWSRA,Western,Sports,Reps,Rocky,Mountain,equipment,technologies,hill
Windows Live Tags: Reaches,Sold,Status,From,January,industry,downtown,Denver,passion,trends,innovations,seminars,product,presentations,personalities,events,concerts,meetings,Attendees,winter,principals,leaders,Demo,Ride,Fest,February,Park,Resort,Devil,Thumb,Ranch,partnership,CCSAA,Cross,Country,Areas,Association,conjunction,WWSRA,Western,Sports,Reps,Rocky,Mountain,equipment,technologies,hill
WordPress Tags: Reaches,Sold,Status,From,January,industry,downtown,Denver,passion,trends,innovations,seminars,product,presentations,personalities,events,concerts,meetings,Attendees,winter,principals,leaders,Demo,Ride,Fest,February,Park,Resort,Devil,Thumb,Ranch,partnership,CCSAA,Cross,Country,Areas,Association,conjunction,WWSRA,Western,Sports,Reps,Rocky,Mountain,equipment,technologies,hill
For updates and additional Snow Show information visit siasnowshow.com.
Quiznos Pro Challenge Announces Stages
Posted: November 4, 2010 Filed under: Cycling Leave a commentIt is going to be one heck of a race!
120 of the world’s best professional cyclists are going to be racing on what will be a beautiful and exciting course.
August 22 – Stage 1, Prologue time trial, Colorado Springs
August 23 – Stage 2, Salida to Crested Butte, mountain-top finish
August 24 – Stage 3, Gunnison to Aspen, mountain stage
August 25 – Stage 4, Vail, time trail, former Coors Classic stage
August 26 – Stage 5, Avon to Steamboat Springs
August 27 – Stage 6, Steamboat Springs to Breckenridge
August 28 – Stage 7, Golden to Denver
This is going to be a great race!
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Robinette v. Aspen Skiing Company, L.L.C., 363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543
Posted: November 4, 2010 Filed under: Colorado, Legal Case, Ski Area, Skiing / Snow Boarding Leave a commentTo see an analysis of this case see: Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.
Robinette v. Aspen Skiing Company, L.L.C., 363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543
CHRIS ROBINETTE, Plaintiff – Appellant, v. ASPEN SKIING COMPANY, L.L.C., a Colorado limited liability company. Defendant – Appellee.
No. 09-1223
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
363 Fed. Appx. 547; 2010 U.S. App. LEXIS 1543
January 25, 2010, Filed
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [**1]
(D. Ct. No. 1:08-CV-00052-MSK-MJW). (D. Colo).
Robinette v. Aspen Skiing Co., L.L.C., 2009 U.S. Dist. LEXIS 34873 (D. Colo., Apr. 23, 2009)
COUNSEL: For CHRIS ROBINETTE, Plaintiff – Appellant: Heather R. Hanneman, Esq., Recht & Kornfeld, P.C., Denver, CO; Scott R. Larson, Esq., Scott R. Larson, P.C., Denver, CO.
For ASPEN SKIING COMPANY, L.L.C., a Colorado limited liability company, Defendant – Appellee: Michael S. Beaver, Rachel A. Yates, Holland & Hart LLP, Greenwood Village, CO.
JUDGES: Before TACHA, ALARCON, ** and TYMKOVICH, Circuit Judges.
** The Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.
OPINION BY: Deanell Reece Tacha
OPINION
[*548] ORDER AND JUDGMENT *
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff-appellant Chris Robinette brought this action against Aspen Skiing Company, L.L.C. (“Aspen“) seeking damages for injuries he sustained in a snowboarding accident involving a snowmobile that was operated by an Aspen employee. The district court granted Aspen’s motion for summary judgment because Mr. Robinette had entered into an exculpatory [**2] agreement with Aspen and had assumed “all risks of skiing/riding.” Mr. Robinette now appeals the district court’s grant of summary judgment, contending that the exculpatory agreement is unenforceable because: (1) it purports to cover reckless conduct; (2) it violates public policy; and (3) its terms are unclear and ambiguous.
Mr. Robinette did not raise a claim of recklessness in the district court; therefore, he cannot do so on appeal absent extraordinary circumstances not present here. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002). Furthermore, our review of the record, the parties’ appellate materials, and the relevant legal authority compels us to agree with the decision reached by the district court on Mr. Robinette’s remaining claims. Accordingly, for the reasons articulated by the district court in its order dated April 23, 2009, we AFFIRM.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
Ciocian v. Vail Corporation, 2010 Colo. App. LEXIS 1353
Posted: November 1, 2010 Filed under: Colorado, Legal Case, Ski Area, Skiing / Snow Boarding | Tags: @VailMtn, Colorado Skier Safety Act, Negligence, Negligence per se, ski area, Ski Area Boundary, skiing, Vail Leave a commentTo Read an Analysis of this decision see
Colorado Appellate Court finds Vail’s boundary marking not enough to prevent a lawsuit.
Melissa Ciocian and Chris Ciocian, Plaintiffs-Appellants, v. Vail Corporation, a Colorado corporation, d/b/a Vail Associates, Defendant-Appellee.
Court of Appeals No. 09CA1568
COURT OF APPEALS OF COLORADO, DIVISION THREE
2010 Colo. App. LEXIS 1353
September 16, 2010, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
SUBSEQUENT HISTORY: Related proceeding at Anderson v. Vail Corp., 2010 Colo. App. LEXIS 1350 (Colo. Ct. App., Sept. 16, 2010)
PRIOR HISTORY: [*1]
Eagle County District Court No. 08CV47. Honorable Frederick W. Gannett, Judge.
DISPOSITION: JUDGMENT VACATED AND CASE REMANDED WITH DIRECTIONS.
OUTCOME: The trial court’s orders granting summary judgment were vacated, and the case was remanded to the trial court for further proceedings.
COUNSEL: Scott R. Larson, P.C., Scott R. Larson, Denver, Colorado, for Plaintiffs-Appellants.
The Rietz Law Firm, LLC, Peter W. Rietz, Maryjo C. Falcone, Dillon, Colorado, for Defendant-Appellee.
JUDGES: Opinion by JUDGE ROY. Roman and Booras, JJ., concur.
OPINION BY: ROY
OPINION
Jesse Anderson (skier # 1) and Melissa Ciocian (skier # 2) 1 and Chris Ciocian appeal the entries of summary judgment in favor of the Vail Corporation (ski resort) in their respective cases. These two appeals, though arising from different skiing accidents and different civil cases, are consolidated for the purpose of the opinion because they present virtually identical facts, the same legal issues, and the parties are represented by the same counsel. Slight factual differences between the two cases are noted.
1 Melissa Ciocian was snowboarding at the time of her accident, but under the Ski Safety Act the term “‘[s]kier’ means any person using a ski area for the purpose of skiing, which includes, without limitation, sliding downhill or jumping on snow or ice on . . . a snowboard . . . .” § 33-44-103(8), C.R.S. 2010. Therefore, [*2] we will refer to her as a skier.
The skiers argue that the trial court erred by: (1) concluding that there was no genuine issue of any material fact and that the ski resort was entitled to judgment as a matter of law as to the marking of the ski resort’s boundary; (2) relying on photographs, submitted without proper foundation, as attachments to the ski resort’s reply brief in support of summary judgment; (3) concluding that the ski resort’s exculpatory agreement did not violate public policy; and (4) concluding that the ski resort’s exculpatory agreement was clear and unambiguous.
We agree with skiers that there is a genuine issue of material fact, which precludes the entry of summary judgment on the issue of whether the ski resort boundary was adequately marked, and, therefore, we need not address whether the trial court could properly consider the disputed photographs. We also agree with the skiers, and the ski resort concedes, that if the ski resort failed to properly mark the ski area boundary as required by the statute, the exculpatory agreement does not release the ski resort from liability. Therefore, we need not consider whether the exculpatory agreement is clear and unambiguous. [*3] Thus, we vacate the trial court’s orders granting summary judgment, and remand for further proceedings.
I. Facts
Primrose, an intermediate (blue) trail, commences at the top of Larkspur Bowl. Primrose splits shortly thereafter, and the left fork remains Primrose but becomes a beginner’s (green) trail; the right fork becomes Bitterroot, an intermediate trail. Two ski lifts, Strawberry Park Express and Upper Beaver Creek Mountain Express, terminate just below the split, affording access to Primrose, Bitterroot, and a glade, which is a forested area with no separate difficulty rating, separating Primrose and Bitterroot. Some distance downhill from the split, Primrose and Bitterroot are connected by Overshot, a trail or catwalk, 2 which cuts through and traverses the glade commencing at Primrose and terminating at Bitterroot. Because it terminates at an intermediate (blue) trail, Overshot itself is an intermediate (blue) trail.
2 A “catwalk” is “a gentle, narrow trail that joins one ski slope to another or that winds down the entire mountain.” http://www.rei.com/expertadvice/articles’skiing”+glossary.html (last visited 7/30/2010). Catwalks frequently look like roads and are used by maintenance vehicles [*4] and equipment to traverse the mountain.
The downhill edge of Overshot is a ski area boundary. Immediately below the boundary are three private ski in-ski out residences built on private property. Immediately below the residences is a paved access road.
Skier # 1’s accident occurred on February 25, 2007, and skier # 2’s accident occurred on March 3, 2007. Both skiers skied off of the Strawberry Park Express Lift. Skier 2 immediately entered the glade. It is not clear where Skier 1 entered the glade. The glade is not closed to skiers, is within the ski resort’s area boundaries, and extends below Overshot.
Skiers proceeded though the glade until they reached Overshot, crossed Overshot near its downhill terminus, and continued downhill through the glade. Skier # 2 noticed “the very different surroundings and the drastic change in terrain,” but she testified that the trees were “fairly spread out,” with “natural gaps” that “made it easy to turn.” Skier # 1 acknowledged he did not look up Overshot as a skier would normally do when crossing a trail, and estimated his speed at twenty miles an hour, or approximately thirty feet per second. 3 There is no evidence of the width of Overshot at the [*5] point of crossing but the ski resort’s counsel, in oral argument, estimated its width as approximately thirty feet. Shortly after crossing Overshot, the skiers skied off of a 19-foot retaining wall, dropped onto the paved access road, and sustained injuries.
3 Speed in feet/second can be estimated by multiplying the speed in miles per hour by 1.5. Thus 5,280 feet, the distance traveled in one minute by a vehicle driving sixty miles per hour, divided by sixty (the number of seconds in a minute) yields eighty-eight feet per second, an error of 2.22%.
Skiers do not dispute that there were nine ski area boundary signs facing uphill across Overshot, to their left, as they crossed Overshot. These signs are located at various points along the downhill side of Overshot, 24 to 51 yards apart, over a distance of 303 yards. A double strand rope closure terminates 44 yards uphill from the first sign, and another rope closure commences 72 yards downhill from the last sign. Skiers skied through this 72 yard gap approximately 56 yards downhill from the last sign and 16 yards uphill from the rope closure. Skiers testified in their depositions that they had no knowledge that the wooded area downhill from [*6] Overshot was closed to the skiing public and that they did not see any boundary signs or rope closures.
Skier’s safety expert (the expert), who visited the scene on April 3, 2007, stated in his report that (1) the forest area (glade) above Overshot “was an open and well skied forest . . . suitable for recreational resort skiing and snowboarding”; (2) the boundary signs to the skiers’ left were “virtually invisible . . . and unreadable in any case as [the nearest sign] would have been edge on to [the skiers’] line of sight as [they] crossed Overshot”; and (3) the rope closure to the skiers’ right and downhill was “hidden behind trees and not visible at all.” The expert also opined that the ski resort failed to post sufficient boundary signs and rope closures alerting skiers to the ski area boundary.
With respect to skier # 1, a responding member of the ski patrol testified in his deposition that he “could see how this happened” and responded affirmatively to the question, “you didn’t believe that it was sufficiently clear that that was the area boundary?” With respect to skier # 2, the ski patrol supervisor confirmed that he probably told her that there was “no way she could have known [*7] the trees were beyond the ski area boundary and, therefore, it was not her fault,” or words to that effect.
The trial court granted summary judgment in favor of the ski resort based on its finding that “after thoroughly reviewing the number, location and orientation of nine (9) boundary signs, the Court finds them to be ”in a fashion readily visible to skiers under conditions of ordinary visibility’ consistent with C.R.S. § 33-44-107(6) [the Ski Safety Act] and within the reasonable standards established in the legislative declaration of the Ski Safety Act.” Further, based on this finding, the trial court found that the exculpatory agreements did not supplant the ski resort’s statutory duties and did not offend public policy based on the Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) factors, and were clear and unambiguous.
II. Summary Judgment
Skiers contend that the trial court improperly applied the summary judgment standard. More specifically, they argue the trial court improperly made findings of fact on disputed issues of material fact. We agree.
A. Standard of Review
[HN1] We review an order granting summary judgment de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). [*8] [HN2] Summary judgment should be granted only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Peterson v. Halsted, 829 P.2d 373, 375 (Colo. 1992). A litigant is entitled to have disputed facts determined by the finder of fact following a trial, and it is only in the clearest of cases, where no doubt exists concerning the facts, that summary judgment is warranted. Moses v. Moses, 180 Colo. 397, 402, 505 P.2d 1302, 1304 (1973). Summary judgment is only appropriate in those circumstances where there is no role for the fact finder to play.
[HN3] In determining whether summary judgment is proper, the court must give the party opposing the motion the benefit of all favorable inferences that reasonably may be drawn from the facts presented. Peterson, 829 P.2d at 376. [HN4] “[T]he trial court may not assess the weight of the evidence or credibility of witnesses in determining a motion for summary judgment . . . .” Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d 714, 718 (Colo. 1987).
[HN5] Statutory interpretation is a question of law that we review de novo. Fischbach v. Holzberlein, 215 P.3d 407, 409 (Colo. App. 2009). [HN6] Our primary duty in [*9] construing legislation is to effectuate the intent of the General Assembly, looking first to the statute’s plain language. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). When legislative language is ambiguous, we construe the statute in light of the General Assembly’s objective, employing the presumption that the legislature intended a consistent, harmonious, and sensible effect. Matter of Title, Ballot Title & Submission Clause, & Summary for 1997-98 No. 62, 961 P.2d 1077, 1079 (Colo. 1998).
B. Analysis
Skiers alleged in the trial court, and now argue here, that the ski resort acted negligently and violated the Act by failing to properly mark the ski area boundaries. Skiers premise their allegations and arguments on section 33-44-107(6), which provides: [HN7] “The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility.” (Emphasis added.) Skiers argue that the ski area failed to comply with section 33-44-107(6) because there were no boundary signs or other markings alerting them that they were approaching a ski area boundary.
The trial court found that the ski resort marked its boundary in a fashion readily visible [*10] to skiers under conditions of ordinary visibility based solely on the placement of the nine boundary signs over the distance of 303 yards along the downhill side of Overshot.
The legislative declaration of the Act provides:
[HN8] The general assembly hereby finds and declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is . . . to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.
§ 33-44-102, C.R.S. 2010. [HN9] The Act then provides the duties of both ski area operators and skiers. Further, the Act states, “A violation by a ski area operator of any requirement of this article . . . shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” [*11] § 33-44-104(2), C.R.S. 2010.
The trial court correctly noted that [HN10] section 33-44-107(6) “does not explicitly or implicitly require a certain number, specific placement or distance between ski area boundary signs.” However, the statute requires that the boundary must be marked in a fashion readily visible to skiers. § 33-44-107(6). [HN11] A “[s]kier” is defined as “any person using a ski area for the purpose of skiing . . . or for the purpose of using any of the facilities of the ski area, including but not limited to ski slopes and trails.” § 33-44-103(8). And, [HN12] “[s]ki slopes or trails” are defined as “all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and those areas designated by the ski area operator to be used by skiers for any of the purposes enumerated in subsection (8) of this section.” § 33-44-103(9), C.R.S. 2010 (emphasis added).
Under this language, [HN13] ski area operators do not simply have a duty to mark ski area boundaries in a fashion readily visible to skiers who are located in certain “designated” areas; but instead, they are required to mark boundaries in a fashion readily visible to any person skiing on a slope, trail, or adjoining skiable [*12] terrain. The ski resort protests that such a reading would create an “impossible burden” because it cannot anticipate how skiers on its ski slopes and trails will be approaching ski area boundaries. However, skiing past boundary lines presents serious consequences, and the General Assembly dictated this strict requirement. In addition, we note that the “reasonableness” standard in the legislative declaration will impact the factual determination of whether a ski resort met the requirements of the statute.
Skiers presented evidence that the boundary signs were not readily visible to skiers in their line of travel; the closest being more than fifty yards uphill from the crossing and none downhill, the direction toward which skiers tend to apply more focus. According to a site diagram, the distance between the end of the uphill and downhill rope line is 419 yards. There are nine ski area boundary signs (and therefore ten gaps) over that distance. Eight of the signs (eight gaps) are immediately above three residences. The longest of the gaps is 51 yards, the shortest is 24 yards, and the average gap is 39 yards. The ninth gap, through which the skiers skied, and below which is glade, is [*13] 72 yards. Further, the skiers’ expert testified in his deposition that the downhill rope closure was not visible to the skiers, a fact which the ski resort may dispute. A member of the ski resort’s ski patrol admitted that he could see how this happened, implying that the boundary was inadequately marked. The evidence presented, viewed in the light most favorable to skiers, presents a genuine issue of material fact as to whether the boundary signs were “readily visible” to skiers approaching Overshot near its downhill terminus.
The ski resort’s argument that [HN14] section 33-44-109(5), C.R.S. 2010, creates a presumption that the skiers “have seen and understood all information posted” is unpersuasive because the statute conditions this presumption on “all information posted in accordance with this article . . . .” Therefore, the presumption is only effective if the ski resort complied with section 33-44-107(6), which, ultimately, is a question that must be submitted to the trier of fact if, as here, there is conflicting evidence.
The ski resort’s argument that [HN15] under section 33-44-109(5), the skiers had a duty to “locate and ascertain” its boundary signs is also misplaced because this duty [*14] is only placed upon skiers in “decreased visibility” and only in the event the ski resort boundary lines are marked in accordance with section 33-44-107, C.R.S. 2010. “‘Conditions of normal visibility’ means daylight and, where applicable, nighttime in nonprecipitating weather.” § 33-44-103(3), C.R.S. 2010. There is evidence that both accidents occurred during daylight hours and that the weather was clear and visibility was good. The weather and general visibility, notwithstanding, it may well be that skiing through trees limits visibility and diverts attention. However, if the skiers’ statutory duty arises, the issue of whether the skiers breached that duty is also a question of fact addressed to the trier of fact in the event there is conflicting evidence.
Viewing the evidence in the light most favorable to skiers, we conclude that there are legitimate disputes of material fact as to whether the ski resort boundary was adequately marked. Therefore, summary judgment was inappropriate, the orders must be vacated, and the case must be remanded for further proceedings.
III. Photographs
Next, skiers argue that the trial court inappropriately relied upon unauthenticated photographs submitted [*15] by the ski resort with its reply brief. Because of our resolution of skiers’ first argument, we need not address this issue.
IV. Exculpatory Agreement
The ski resort also argued in the trial court that skiers’ claims were barred by the Season Pass Application, which included an exculpatory agreement 4 that both skiers signed. However, the ski resort conceded in its briefs on appeal, and in oral argument, that it “is not (and did not) attempt to contract away its statutory duties, rather, the exculpatory agreement precludes only those claims for negligence above and beyond the requirements with which [ski resort] was statutorily required to comply, and with which it did comply.” (Emphasis in original answer briefs.) The ski resort also admits that “[its] release does not supplant [its] statutory duties,” and that its “liability waiver does not dilute or limit the statutory duties with which it must comply. Rather, [its] waiver precludes any claim for negligence or liability beyond those statutory duties with which [it] is required by law to comply . . . .”
4 The exculpatory agreement stated, in pertinent part, as follows:
The Undersigned expressly ASSUMES ALL RISKS associated with holder’s [*16] participation in the Activity, known or unknown, inherent or otherwise. . . . The Undersigned understand and acknowledge: . . . 2) Holder is responsible for reading, understanding, and complying with all signage. . . . IN CONSIDERATION OF ALLOWING HOLDER TO USE THE SKI AREA FACILITIES, THE UNDERSIGNED AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY. . . [THE SKI RESORT] FROM ANY AND ALL LIABILITY. . . .
Therefore, the ski resort agrees with skiers on the scope of the exculpatory agreement and we need not address the issue further. It logically follows that we need not address skiers’ argument that the exculpatory agreement was ambiguous.
We reverse the summary judgments and remand for further proceedings consistent with the views expressed in this opinion.
JUDGE ROMAN and JUDGE BOORAS concur.
Colorado Appellate Court finds Vail’s boundary marking not enough to prevent a lawsuit.
Posted: November 1, 2010 Filed under: Colorado, Ski Area | Tags: Appellate Court, Colorado, James H. Moss, JimMoss, Lawsuit, Recreational Equipment Incorporated, Ski Resort, Summary judgment, Vail, Vail & Associates Leave a commentTwo nearly identical mishaps at the same location bring two suits where the skier was able to overturn a motion for summary judgment.
Ciocian v. Vail Corporation, 2010 Colo. App. LEXIS 1353
In Ciocian v. Vail Corporation and Anderson v. Vail Corporation the decisions from the court were identical. The two cases had almost identical accidents against the same defendant, at the same place, within six days of each other. The parties were all represented by the same attorneys so the court issued one opinion to apply to both cases.
The case involved skiers who skied through the ski area boundary, out of bounds, on to private land. The skiers were injured when they skied over a 19’ embankment onto a driveway. The issue was whether the skiers saw the ski area boundary markers and if they did not, whether the boundary was marked correctly under the Colorado Skier Safety Act.
The Colorado Skier Safety Act requires that all boundaries of ski areas be marked. Colorado Revised Statute (C.R.S.) §§ 33-44-107. Duties of ski area operators – signs and notices required for skiers’ information states:
(6) The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility. Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section. This requirement shall not apply in heavily wooded areas or other nonskiable terrain.
In the case in these two accidents, the downhill border of a catwalk was the boundary of the ski area. Soon thereafter there is a 19’ drop onto a driveway. The area on the uphill side of the catwalk and the two runs the catwalk connected were in bounds. The uphill side of the catwalk was open for tree skiing. In both cases, the plaintiff skied over the catwalk without seeing the boundary signs.
The skiers skied through the trees and across the catwalk passing the boundary.
The boundary was marked part of the way on the entrance and exit of the catwalk with ropes and signs. The center part of the catwalk, approximately 303 yards, was marked with nine signs.
The issue brought before the court was whether the signs were enough under the act to be seen by skiers warning them that they were about to go outside of the ski area boundary.
Any violation of the Colorado Skier Safety Act is negligence on the part of the ski area: C.R.S. §§ 33-44-104. Negligence – civil actions.
(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.
The plaintiffs argued the ski area failed to mark the boundary in a fashion that was visible to the skiers as required by C.R.S. §§ 33-44-107(6) and therefore, the ski area was negligent under C.R.S. §§ 33-44-104(1). If the negligence of the defendant is based on a violation of a statute (negligence per se) then a release is not effective to stop a lawsuit. This also became an issue for the ski area.
The court first looked at the statute to determine if the statute was clear or if the statute needed interpretation by the courts to be effective. In making that determination the court’s duty is to “to effectuate the intent of the General Assembly, looking first to the statute’s plain language.” If the language of the statute was not plan, or if it is ambiguous the duty is to “construe the statute in light of the General Assembly’s objective, employing the presumption that the legislature intended a consistent, harmonious, and sensible effect.”
The court found the language of the statute was plain and upheld the interpretation of the statute put forth above.
The court also pointed out statements made by the ski patrol about the incident.
With respect to skier # 1, a responding member of the ski patrol testified in his deposition that he “could see how this happened” and responded affirmatively to the question, “you didn’t believe that it was sufficiently clear that that was the area boundary?” With respect to skier # 2, the ski patrol supervisor confirmed that he probably told her that there was “no way she could have known the trees were beyond the ski area boundary and, therefore, it was not her fault,” or words to that effect.
The Appellate Court over turned the trial court’s grant of the defendant’s motion for summary judgment and sent the case back to the trial court for trial. However, this case was decided on September 16, 2010 and there is still time for the Defendant Vail Corporation to appeal the decision so this decision may not be final. If not appealed and taken to trial, there is still a long way to go before a decision is handed down by the court.
So?
There are still several things to learn from this decision.
If you are subject to a statute, you must make sure you meet all the requirements of the statute. Failure to do so will not only find you are negligent it will also stop most if not all of your defenses.
You also have to be aware that employees are going to answer questions honestly. The ski patrollers that answered the questions that assisted the plaintiff’s cases were doing so because they must tell the truth first and help their employer second. If your case is such that your employees may believe the plaintiff’s claim, you need to evaluate your case.
At the same time, no matter how much an employee may agree that the company did something wrong, that does not mean that they agree with the amount of money the plaintiff is asking for.
One interesting note, the court in a footnote referenced REI’s www.rei.com glossary in its expert advice section to define a catwalk. It’s not every day that a retailer’s website is referenced in a lawsuit as being a definitive way to define something.
For Other Colorado Decisions see:
Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
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.
If you are interested in having me write your release, download the form and return it to me.
Connect
If you like this let your friends know or post it on FB, Twitter, or LinkedIn
Facebook Page: Outdoor Recreation & Adventure Travel Law
LinkedIn https://www.linkedin.com/in/recreationlaw/
Threads https://www.threads.net/@recreation_law
X https://twitter.com/RecreationLaw
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2010-2023 Summit Magic Publishing, LLC
G-YQ06K3L262
#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, #REI, #Recreational Equipment Incorporated, #Vail, #Colorado, #Colorado Skier Safety Statute, #Skier Safety Statute, Vail Incorporated, #ski area boundary,
WordPress Tags: Colorado,Appellate,Court,Vail,boundary,lawsuit,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Recreational,Equipment,Skier,Statute,area,blog
National Sporting Goods Association reports that Helmet use at US Ski Areas increased during the 2009-10 ski season.
Posted: October 26, 2010 Filed under: Skiing / Snow Boarding 3 CommentsHelmet Use at U.S. Ski Areas Shows Increase in 2009/10 Season according to the National Sporting Goods Association (NSGA) and the National Ski Area Association (NSAA).
According to preliminary findings of the 2009/10 National Ski Areas Association (NSAA) National Demographic Study, 57% of skiers and snowboarders wear helmets on the slopes. Helmet usage among those interviewed nationwide increased 19% versus the 2008/09 season, when 48% of those interviewed were wearing helmets.
By comparison, just 25% of skiers and snowboarders wore helmets during the 2002/03 season. The annual Demographic study is compiled from more than 130,000 interviews of skiers and snowboarders nationwide.
The study also showed that: 87% of children 9 years old or younger wear ski/snowboard helmets; 75% of children between 10 and 14 wear ski/snowboard helmets; 43% of all 18-24-year olds interviewed wore helmets, representing a 139% increase in usage for this age group since the 2002/03 season, when just 18% wore helmets; and 70% of adults age 65 and older wear ski/snowboard helmets.
Find more information online under the Safety & Education menu at http://www.nsaa.org or click here.
The NSGA has been serving the sporting goods industry since 1929. To subscribe to the NSGA Research Newsletter go here.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
Posted: October 25, 2010 Filed under: Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Adult Volunteer, Boy Scout, Boy Scouts of America, Brian Thomson, Florida, Nassau County New York, New York, New York City, Parental Responsibility; Youth Program, United States, Volunteer Leave a commentTo Read an Analysis of this decision see: Adult volunteer responsibility ends when the minor is delivered back to his parents.
Rita Berlin et al., Respondents,
vs.
Nassau County Council, Boy Scouts of America et al., Defendants, and Hugh Brickley, Appellant.
95-05684
Supreme Court Of New York, Appellate Division, Second Department
229 A.D.2d 414, 645 N.Y.S.2d 90, 1996 N.Y. App. Div. Decision
July 8, 1996, Decided
Devitt, Spellman, Barrett, Callahan, Leyden & Kenny, LLP., Smithtown, N.Y. (L. Kevin Sheridan of counsel), for appellant. Hershman & Leicher, P.C., New York, N.Y. (Harold M. Hershman of counsel), for respondents.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
{*414} Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.
Brian Thomson acquired a slingshot from a store in Florida while on a trip with his Boy Scout troop. The appellant Hugh Brickley and the defendants Kenneth Bistyga and Philip Lembo were the chaperones for the trip. Brickley immediately confiscated the slingshot and did not return it to Brian until after the trip when he left Brian with his parents in Delaware. Approximately one week later, after the Thomson family had returned to New York, the infant plaintiff Daniel Berlin was injured when he and Brian were playing with the slingshot in Daniel’s backyard.
Any duty on the part of Brickley to supervise or control the activities of Brian terminated when he returned the child to {*415} his parents‘ custody (see, Purdy v Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8-9; see also, Pratt v Robinson, 39 N.Y.2d 554, 560; Griffith v City of New York, 123 A.D.2d 830, 832). Even assuming that Brickley was negligent in returning the slingshot to Brian, the alleged negligent supervision by Brian‘s parents, who were fully aware that he possessed and was using the slingshot, was a superseding intervening cause which attenuated any negligence on the part of Brickley from the ultimate injury to Daniel (see, Nolechek v Gesuale, 46 N.Y.2d 332, 338-339; Elardo v Town of Oyster Bay, 176 A.D.2d 912, 914). Consequently, Brickley’s motion for summary judgment should have been granted.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
Adult volunteer responsibility ends when the minor is delivered back to his parents.
Posted: October 25, 2010 Filed under: Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Boy Scout, Boy Scouts of America, BSA, Parental Responsibility, Scout Troop, Scouting, Slingshot, Trauma, Volunteer, Volunteer Responsibility, Youth, Youth Trip Leave a commentThank heavens!
Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
A youth was on a trip with a Scout troop which is a program of the Boy Scouts of America (BSA). Sometime on the trip, the minor bought a slingshot. The slingshot was confiscated by a volunteer leader on the trip. At the end of the trip, the slingshot was given to the parents of the minor.
Later the minor was playing with the slingshot with another youth, and the other youth was injured by the slingshot. Either the minor had gotten the slingshot somehow or the parents had given the slingshot back to the minor, although this was not specifically stated in the opinion.
The parents of the minor injured by the slingshot, the plaintiffs, sued the volunteer adult leaders of the trip for the minor’s injuries.
The court in a succinct and short decision held the adult volunteers were not liable for the minor’s injuries. The basis for the decision was the action of the volunteer in giving the minor back to the parents was a superseding intervening act, which stops the claim.
A superseding act, eliminates the relationship between the damages which caused the injury and the duty owed. That means negligence cannot be proven. The damages are not proximate to the duty owed. Negligence has four parts, all which must be proven:
- A duty
- Breach of the duty
- Injury
- Damages proximately caused by the breach of duty.
The court’s decision says the fourth step cannot be proven because of the superseding act. The parents taking control of their child was an intervening act which the court said did not tie the duty and the damages to together legally. Stated another way, there was no relationship between the act of the volunteer and the injury received by the minor.
The plaintiffs seem to argue that the adult volunteer should not have given the slingshot back to the parents. However, the slingshot was a possession, a piece of property owned by the minor and as such, his parents. The slingshot was given back to the owners as required by the law.
So?
The relationship between a parent and a volunteer who is spending his or her time with the child is tenuous. As a volunteer you must be clear what your responsibilities are and are not going to be, as well as when that responsibility ends. It does not need to be so formal. It can simply be in the trip information that the kids have to be at the church by 7:00 PM and parents must pick their kids up Sunday at 2:00 PM at the church.
Most times, volunteers worry about injuries to the minor as a liability issue. There are other issues that can come up that you should be prepared to deal with.
Search and Rescue costs if a minor is lost can be substantial. (See No Charge for Rescue). Damages to property or injury to other minors can create liability for the adult volunteer responsible. A forest fire started by a minor can be costly. Even though most state courts will not allow a parent to release the claims of a minor for injuries, courts will allow releases or contracts where the parent agrees to pay for other claims the minor may create.
You can inform the parent and make sure they understand (meaning a written document) that they are responsible for any damages the minor may create for a reason other than injuries to themselves. I would include damages for the minor’s injuries on a different form. You do not want the court to throughout one release for the minor’s injuries when what you needed was protection for the damages done for the minors.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2010-2023 Summit Magic Publishing, LLC
#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, #BSA, #Boy Scouts of America, #youth, #No Charge for Rescue, #volunteer, #youth leader, #youth, #minor, Technorati Tags: Adult,parents,recreation,adventure,Moss,James,attorney,tourism,management,youth,areas,negligence,Scouts,America,Charge,Rescue,leader,blog
Windows Live Tags: Adult,parents,recreation,adventure,Moss,James,attorney,tourism,management,youth,areas,negligence,Scouts,America,Charge,Rescue,leader,blog
WordPress Tags: Adult,parents,recreation,adventure,Moss,James,attorney,tourism,management,youth,areas,negligence,Scouts,America,Charge,Rescue,leader,blog
Blogger Labels: Adult,parents,recreation,adventure,Moss,James,attorney,tourism,management,youth,areas,negligence,Scouts,America,Charge,Rescue,leader,blog
Maine decision on minor injured in ski school conforms how most states will interpret the facts.
Posted: October 25, 2010 Filed under: Activity / Sport / Recreation, Maine, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Uncategorized | Tags: American Skiing Company, ski area, Ski Lessons, Sunday River Leave a commentNegligent supervision is not covered under most state skier safety acts.
Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
When reading a case, there are usually some tell-tale signs on how a decision will head. One indication is a misunderstanding of how the sport works by the court. In this decision, it is clear the court probably has never skied or been to a ski area.
The court commented on the fact that the ski area did not require skiers to take a class. The court used the term “hockey stop” to describe a way that a skier stopped. Finally, the court identified each time the plaintiff fell skiing, like it was something new or different.
Facts of this case are the mother of the injured skier signed her son up for skiing lessons. In the process of signing up for the lessons, the mother signed a release.
During the lesson, the son lost control of his skis and skied into a tree suffering injury.
The plaintiffs, mother and son, sued on a claim of negligent supervision of the injured son and for lost wages of the mother. The defendant ski area argued the Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act (Skier Act), 32 M.R.S.A. § 15217 and the release signed by the mother prevented their claims.
The court found the Skier Act protected the ski area from the inherent risks of skiing. The Skier Act also prevents suits for negligent operation of the ski area. The court found that negligent supervision was not an inherent risk found in the Skier Act nor was it part of the operation of the ski area.
The court then looked at the release and the two claims the defendant argued were prevented by the release. The first was the minor’s claim for his injuries.
The court found under Maine law that a release must “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” A release in Maine, as in most states, is strictly construed. This means the language of the release must be close to perfect to be upheld. The court found the release was not ambiguous (another possible defense) and the terms were clear in its intent.
The court then looked at whether Maine allowed a release to stop claims by minors and found it did not. A release under Maine law does not stop claims by a minor. This is in line with the law in more than 40 states.
The mother’s claims were based on the minor’s claims. This means for the mother to recover the minor’s claims had to be legally valid and not subject to a defense. Since the minor’s claims were valid, then the mother’s claims could proceed.
The mother’s claims are derivative claims. They derive from the main claim and are subject to all of the defenses of the main claim and any defenses of the derivative claim itself. If the main claim fails then the derivative claim also fails. Derivative claims are any claims that are created because of the main claim. Claims of spouses when another spouse is injured are derivative as is the claim of a parent when a child is injured.
The next issue was whether the ski area had a separate defense to the mother’s claims which it did. The claims of the mother were stopped under Maine law because the mother signed the release.
The final defense brought by the ski area was the indemnification language in the release. Indemnification language faces three battles in the courts.
1. Courts hate indemnification language in these situations.
2. Courts hate indemnification where the person who is injured is indemnifying against his own injuries.
3. Courts require indemnification language to be exact and the language is always strictly construed.
Here the court found that Maine law allows indemnification if the “indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties.” Here the court found the indemnification language in the release was ambiguous and was not conforming to the language required under Maine law. Therefor the court did not require indemnification by the parents for the son’s injuries.
So?
This decision with a similar set of facts is probably close to how the majority of state courts will rule.
The skier safety act does not cover negligent supervision.
A release does not stop a claim by a minor.
A release will probably stop a claim by an adult.
The indemnification language in a release will probably not support a counterclaim for indemnification by the defendant against the person who signed it.
Of course there are exceptions to the above statements. Some state skier safety acts would include operations of the ski school within the risks of skiing. Three or four states allow a parent to sign away a minor’s right to sue.
Very few if any courts will uphold indemnification language in a release. If you want to have an enforceable indemnification clause you probably will have to have a separate agreement with specific and exact indemnification language in the agreement.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
#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, #ski school, #skiing, #Sunday River Skiway Corporation, #Perfect Turn, Inc., #American Ski Company, #ski school, #ski instructor, #derivative claim, #minor, #release, #ski safety act, #Sunday River,
WordPress Tags: Maine,decision,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,River,Skiway,Corporation,Perfect,Turn,American,Company,instructor,blog
Colorado Ski Country releases opening dates for resorts
Posted: October 22, 2010 Filed under: Ski Area, Skiing / Snow Boarding Leave a commentSnowmaking is going full steam in the Rocky Mountains.
“Heated” competition is going on at the Colorado resorts to see which ski area is going to open first for the 2010-11 ski season. This contest has historically been between Loveland Ski Area and Arapahoe Basin, both high up in the Rockies.
Below is a list of each member resort’s planned opening day from Colorado Ski Country USA. Dates are subject to change.
Arapahoe Basin – October (day TBD)
Loveland – October (day TBD)
Copper Mountain – November 5
Wolf Creek – November 5
Winter Park – November 17
Crested Butte – November 24
Monarch – November 24
Steamboat – November 24
Telluride – November 25
Aspen Mountain – November 25
Snowmass – November 25
Eldora – November (day TBD)
Silverton – Unguided Season November; Guided Season January
Ski Cooper – November 25-28, December 3-5, December 10-12, open daily after 12/17
Purgatory at Durango Mountain Resort – November 25
Echo Mountain – December 1
Sunlight – December 3
Aspen Highlands – December 11
Buttermilk – December 11
Howelsen – December (day TBD)
SolVista – December 15
Powderhorn – December 16
Arapahoe Basin Ski Area
Loveland Ski Area
For more information see Cooling Temperatures Add To Growing Opening Day Anticipation At Resorts.
Colorado Mountain Meteorology Workshop 2010
Posted: October 22, 2010 Filed under: Avalanche Leave a commentWednesday through Friday, November 10-12, 2010 Colorado Mountain College – Leadville
The Colorado Avalanche Information Center (CAIC), the American Institute for Avalanche Research and Education (AIARE), and the Colorado Mountain College – Leadville are sponsoring a three day workshop on Mountain Meteorology. Morning sessions will provide a basic understanding of meteorological principles applied to weather in mountainous areas. Afternoon sessions will focus on using available weather information to create a local forecast. Participants will interact with experienced weather forecasters and work in small groups to generate and present their own forecasts. The workshop is designed for avalanche practitioners and avid recreationalists. Anyone interested in mountain weather phenomena is welcome and no previous meteorological education is required. Participants are encouraged to bring their own laptop computer with wireless capability for the small group exercises.
Dr. John Snook, Mountain Weather and Avalanche Forecaster, CAIC, Boulder is the lead instructor for the workshop.
© 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Canadian government suing Blackcomb Mountain for the health care costs of an injured snowboarder
Posted: October 21, 2010 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Blackcomb, Canada, skiing, Whistler Leave a commentNever forget the subrogation clause in any insurance policy. It will allow the insurance company to sue whoever caused your injury to recoup their payouts.
The injured snowboarder caught an edge and fell over Crystal Road run, down a steep embankment and over a climb. She suffered a:
….dislocation of the vertebrae with associated spinal-cord injury and several fractures of the vertebrae. She also suffered a mild traumatic brain injury, dislocated her ribs and had a left femur and femoral fracture.
The lawsuit claims the accident was caused by the “negligence and breach of duty of the defendant,” The complaint further sates the defendant created a “hazardous condition and failed to erect adequate warning signs. The suit also alleges the company failed to erect a barrier.”
The defendant is Blackcomb Skiing Enterprises Limited Partnership, which is the owners and operators of Blackcomb Mountain and Whistler Mountain. The defendants have not filed an answer at the time of the article.
Subrogation is the name of a clause in an insurance policy that allows the insurance company to collect any money that may be owed you for your injuries. If you injured due to the negligence of someone else, your health insurance company can sue that third party to recover the money they paid out on your behalf for your medical bills.
This must be the first time it has occurred in Canada. When I worked as a risk manager at a ski resort I received a subrogation claim letter every week. I received one every time a member or the military or a federal employee was injured.
The ski area does not have to pay out if they ski area was not negligent or if the ski area as a defense to the claim. So any defense the ski area may have against a suit by the injured skier or boarder is effective against the subrogation claims. In my case, the Colorado Ski Safety Act, Assumption of the Risk and in many cases a release stopped the subrogation claim.
See B.C. sues ski resort for care costs of injured boarder
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
#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, #Blackcomb, #Blackcomb Mountain, #subrogation, #Canada, #health care, #snowboarder,
WordPress Tags: Canadian,government,Blackcomb,Mountain,health,recreation,adventure,Moss,James,attorney,tourism,management,Human,ropes,youth,Canada,snowboarder,blog
Ski Sundown wins lawsuit
Posted: October 20, 2010 Filed under: Ski Area Leave a commentJury deliberates for 90 minutes before returning verdict for the defendant.
Story is being reported by SAM as SKI SUNDOWN FOUND NOT AT FAULT
Aspen Skiing Co is being studied by the Harvard University Business School because of its corporate activism on behalf of the environment.
Posted: October 19, 2010 Filed under: Ski Area Leave a commentAspen Skiing Co., is an active corporate environmental group and its actions are being studied as a model for other corporations.
Aspen Skiing Co., had joined Greenpeace and the Natural Resources Defense Council (NRDC) in a lawsuit to force Kimberly Clark to change the way Kleenex are made. The lawsuit alleged the way Kimberly Clark made Kleenex was destructive to the environment and contributed to climate change.
The study is looking at the decisions made by Aspen Skiing Co., as it balanced the value of joining the lawsuit versus angering guests.
Changes made by Kimberly Clark allowed Aspen Skiing Co to drop out of the lawsuit, feeling the changes were significant. The NRDC kept suing and eventually won the suit which allowed the EPA to regulate to regulate greenhouse gas emissions.
This took a lot of guts on the part of Aspen Skiing Co, thanks and good job!
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Keywords:
#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, #Aspen, #Aspen Skiing Company, #Skicorp, #National Resource Defense Council, #Greenpeace, #NRDC, #Kleenex, #Kimberly Clark, #boycott, #greenhouse gasses, #climate change, #corporate activism, #Harvard, #Harvard Business School,
Technorati Tags: Aspen,Harvard,School,environment,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,negligence,Company,Skicorp,National,Resource,Defense,Council,Greenpeace,NRDC,Kleenex,Clark,greenhouse,climate,activism
Windows Live Tags: Aspen,Harvard,School,environment,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,negligence,Company,Skicorp,National,Resource,Defense,Council,Greenpeace,NRDC,Kleenex,Clark,greenhouse,climate,activism
WordPress Tags: Aspen,Harvard,School,environment,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,negligence,Company,Skicorp,National,Resource,Defense,Council,Greenpeace,NRDC,Kleenex,Clark,greenhouse,climate,activism
Grief over son’s death and lack of knowledge about SAR leads to book about SAR in the US.
Posted: October 14, 2010 Filed under: Search and Rescue (SAR) Leave a commentThe article points out what the father did not know. The book is also a way to deal with the loss of a son.
Jon Francis was lost climbing an Idaho peak in 2005. After two days of searching the search (SAR) was called off. His father did not and continues to not understand why the SAR was canceled.
His son was eventually found by paid searches’ months later. The issues of pleading for help and not understanding SAR in the US lead to the creation of this book. The book was self-published, probably meaning no book publisher would publish it.
The article is full of interesting statements about SAR in the US today. Most of the statements show a total lack of knowledge about how SAR works, both by the father of the missing climber and the journalist who wrote the article.
The father’s grief and frustration come through the most in the article. He describes the reasons why the search was eventually canceled as the people involved in the search were “risk averse.” Yet the search for his son ran longer than 90% of the searches in the US.
His grief also comes through in his reasons for writing the book. He wanted the world to know about his son.
A volunteer who is putting his life on the line, for free, looking for someone who died is not risk averse. The person who must live with the loss of a volunteer from a SAR that goes wrong is not risk averse. These people are volunteers. They are hiking the same trails that killed the son. They are doing this for a multitude of reasons, and will do so to the verge of exhaustion if necessary. They are undertaking the same risks that killed the son. How a grieving father can call volunteers undertaking the identical risk that killed his son as risk averse is unbelievable to me.
The father did not understand that SAR in most states is controlled by the Sheriff. In a few states, other agencies are in charge of SAR. There is a nationwide SAR organization, but the organization NASAR does not run searches. It only assists local organizations.
It is hard to tell, but I don’t believe that the father ever looked at the risk the SAR searches were facing. He wanted his son’s body back so badly, that the lives of others did not seem to register as an issue to him. This may be the way the journalist wrote the article, or it may be an issue. Yet this issue cannot be denied. No body is worth a life.
This is a sad story and probably a sad book. However, there are several things we can learn from this.
Grief in the US is an unbelievably strong motivator. People do not die in the US before they have lived a long life. If they do, we do not accept it. Here the grief led to the creation of an organization to assist others in finding lost people, a book and a five year condemnation of the SAR system.
People in the US do not understand how SAR works. SAR is done by volunteers except in some National Parks. Those volunteers work at the behest and in most cases control of the local sheriff.
SAR volunteers do not get the support, the equipment or most importantly the thanks they deserve.
See The father of a man who died on an Idaho peak wants to reform search and rescue.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Keywords:
#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,# NASAR, #SAR, #Search and Rescue, #National Association for Search and Rescue, #Idaho, #Grand Mogul, #Idaho, #Custer County Sheriff, #Custer County,
Technorati Tags: Grief,death,knowledge,recreation,adventure,Moss,James,attorney,tourism,management,Human,ropes,youth,negligence,NASAR,Search,Rescue,National,Association,Idaho,Grand,Mogul,Custer,Sheriff,areas,blog
Windows Live Tags: Grief,death,knowledge,recreation,adventure,Moss,James,attorney,tourism,management,Human,ropes,youth,negligence,NASAR,Search,Rescue,National,Association,Idaho,Grand,Mogul,Custer,Sheriff,areas,blog
WordPress Tags: Grief,death,knowledge,recreation,adventure,Moss,James,attorney,tourism,management,Human,ropes,youth,negligence,NASAR,Search,Rescue,National,Association,Idaho,Grand,Mogul,Custer,Sheriff,areas,blog
Who Charges for Search and Rescue? Meaning who Charges if you need Rescued
Posted: October 13, 2010 Filed under: Search and Rescue (SAR) | Tags: Boycott New Hampshire, Boycott NH #BoycottNH, No charge for Rescue, SAR, Search & Rescue, Search and Rescue Leave a commentOr better where should I not go recreate!
This is a list of the states, counties and municipalities that have been identified that charge for rescues. These information comes from the No Charge for Rescue Facebook page and its contributors.
I’ll try and keep this information as up to date as possible, however mistakes will be made. If you have information on a government agency listed here or know of one that should be please let me know. Also post the information on the No Charge for Rescue Facebook page
| State | Circumstances or criterion | Law | Limit | Negligence Req’d? | Statute |
| Hawaii | “intentional disregard for the person’s safety” | H.R.S § 137-2 | §137-2 | ||
| Maine | 12 M.R.S. § 10105 | No | MRS 12-13-2§10105 | ||
| New Hampshire | “Determination of negligence” | RSA 206:26-bb (2010) | Yes | 206:26-bb | |
| Oregon | “Lack of reasonable care” | ORS § 404.270 (2010) | Maximum $500 | 401.59 | |
| Specific and limited SAR cost recovery | |||||
| Colorado | “Skier Safety Act” | Duties of skiers – penalties. (3) No skier shall ski on a ski slope or trail that has been posted as “Closed” pursuant to section 33-44-107 (2) (e) and (4). (11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6). (12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars. |
Maximun fine $300. Restitution has been ordered for costs upon conviction of Class 2 petty offense | CRS 33-44-109. | |
| Colorado | River rescue, commercial outfitters | 2) (a) Any actual expenses incurred by a governmental entity for search and rescue efforts stemming from any river running activity conducted for consideration by a river outfitter pursuant to the provisions of this article shall be reimbursed by said river outfitter. Such expenses shall include but not be limited to hours worked, fuel, a reasonable fee for use of equipment, and equipment repair or replacement costs, if any. | No | CRS 33-32-108 | |
| Vermont | Ski area access to terrain outside bondary | (c) Civil action to recover. A person who uses the facilities of a ski area to access terrain outside the open and designated ski trails, shall be liable in a civil action brought by any person, including a ski area, rescue organization, municipality or the state, to recover expenses incurred to provide rescue, medical or other services to such person for circumstances or injuries which resulted from such use. The entity seeking to recover may also recover reasonable attorney fees and court costs. No ski area, its owners, agents or employees, individual or entity, municipal or otherwise, shall be held liable for any acts or omissions taken in the course of such rescue operations unless such act or omission constitutes gross negligence. (Added 1993, No. 233 (Adj. Sess.), §88, eff. June 21, 1994.) |
12-27-1038 | ||
| California | Rescuing county bills resident’s home county | The county or city and county of residence of a person searched for or rescued by the sheriff under the authority of Section 26614 shall pay to the county or city and county conducting such search or rescue, in any case where the expenses thereof exceed one hundred dollars ($100), all of the reasonable expenses in excess of one hundred dollars ($100) of such search or rescue within 30 days after the submission of a claim therefor by the county or city and county conducting the search or rescue and the county or city and county conducting the search or rescue shall bear the remaining expense. | Minimum $100 | No | 26614.5 |
Copyright 2010-2023 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Keywords:
Recreation Law 