Another Ski Area lawsuit
Posted: September 4, 2008 Filed under: Ski Area Leave a comment
A skier is claiming that Sunlight Mountain Resort is at fault for his injuries after he was knocked down by a chair lift. Allegedly the plaintiff was boarding the Number 1 lift this past spring (2008) when he was knocked to the ground by the chair.
The complaint alleges employee negligence, failure to properly train and supervise employees, and the employees failed to follow rules and regulations
The plaintiff suffered a fracture of the neck of his femur.
Absent a release, this will start off as a contest to determine where the injury occurred. If the injury occurred outside of the lift then the Colorado Skier Safety Act will control and the plaintiff will have a difficult time winning.
If the plaintiff can convince everyone the injury occurred once he had boarded the lift then the lift operator owes the plaintiff the highest duty of care. (See Bayer, v. Crested Butte Mountain Resort, Inc., 960 P.2d 70; 1998 Colo. LEXIS 391; 1998 Colo. J. C.A.R. 2416)
However the fight will not end there. The Colorado Skier Safety Act requires that a passenger have the skills, dexterity, ability, and knowledge to negotiate or load and unload the lift.
C.R.S. 33-44-104(1) No passenger shall board a passenger tramway if he does not have sufficient physical dexterity, ability, and knowledge to negotiate or use such facility safely or until such passenger has asked for and received information sufficient to enable him to use the equipment safely. A passenger is required to follow any written or verbal instructions that are given to him regarding the use of the passenger tramway.
A passenger must also obey any instructions and any posted information.
C.R.S. 33-44-104 (2) No passenger shall:
(g) Disobey any instructions posted in accordance with this article or any verbal instructions by the ski area operator regarding the proper or safe use of a passenger tramway unless such verbal instructions a
However is there a duty on the part of the ski area to have someone there to slow (swing back) the chair as a passenger boards it? The statute only speaks to the lift attendant being in a position to stop the lift.
See Sunlight facing lawsuit over March lift accident
Accidents at ski resorts or anywhere for that matter are bad occasions. Ski resort accidents compound the problem because a person is injured while they are on their vacation. However, at some point we must determine when we are going to learn, assume the risk and take a chance on life if we want to enjoy it.
Lawsuit to stop a lawsuit
Posted: August 31, 2008 Filed under: Challenge or Ropes Course, Climbing Wall Leave a comment
A youth services agency in Doylestown a suburb of Philadelphia PA is suing the Doylestown Township to force them to protect their climbing wall and ropes course. The youth services agency rents the first floor of a converted barn from the township. Located on that floor are an indoor ropes course and a climbing gym. The township controls the rest of the building and allegedly is allowing people to access the ropes course and climbing gym when the youth services agency is not around. See Lawsuit: Town allowing access to climbing wall.
The suit claims by allowing access to the leased premises where the ropes course and climbing wall are located the town is exposing the agency to a risk of a lawsuit. They are asking for an injunction, (a court order to immediately stop the access) and their costs to allegedly protect themselves.
Seems a little oxymoronic to use one lawsuit to stop a possible lawsuit?
UK court holds climber 75% responsible for his injuries
Posted: August 21, 2008 Filed under: Climbing Wall Leave a comment
A UK court has held that Gary Poppleton, 32 was 75% responsible for his injuries when he fell from a climbing wall. The fall paralyzed Mr. Poppleton from the neck down. The lower court had awarded Mr. Poppleton £4 million. Mr. Poppleton has fallen 1.45 m (4.75 ft) while bouldering at the Peter Ashley Activity Centre in Portsmouth, UK.
The appellate court found that Mr. Poppleton was fool hard in his climbing.
The division of the fault under UK law means Mr. Poppleton will not receive any money for his damages.
See: Paralysed climber was ‘foolhardy’, Climber stripped of damages and People injured in hazardous activities only have themselves to blame, court rules
Camp Business July/August 2008
Posted: August 19, 2008 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Summer Camp Leave a comment
July 7, 2008
Rodney J. Auth, Publisher
Camp Business
PO Box 1166
Medina, OH 44258-1166
Re: Good Sense: The legalities of horseback riding at camp
Camp Business July/August 2008
Dear Mr. Auth:
The article Good Sense was very well written and very informative. I would like to point out two instances where the story may be misleading.
In the story the statement is made that liability releases may deter lawsuits but not for negligence. Releases stop lawsuits based on claims for negligence in 45 out of 50 states. Releases do not work for claims made by minors except in three states: California, Colorado and Ohio. The Florida Supreme Court is currently looking at this issue. So releases do work to stop suits, they only work when signed by someone over the age of consent.
The article also states that horses are “attractive nuisances.” They are not. An attractive nuisance is a condition on the land or a premises issue. The definition usually revolves around the term “artificial condition” upon the land.
Tennessee used the term creates a condition to define attractive nuisance as:
One who has that on his own premises, or who creates a condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children of tender years, is under a duty to take such precautions as a reasonably prudent person would take to prevent injury to such children whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected to attract them, come there to play. Mead v. Parker, 340 F.2d 157; 1965 U.S. App. LEXIS 6909
The basis of the doctrine is to protect children from dangerous conditions on the land. Farm animals and pets have never been considered an attractive nuisance. A child should be instructed by their parents as to the dangers present in land; it is the special features of the premises created by man that a child may not know about that creates the liability.
The best example is a swimming pool is an attractive nuisance and a pond is not.
This article is needed because too often camps rely on equine liability acts to protect their business. When speaking to groups about equine liability acts I always make sure I tell them that those laws are 100% effective. Since their enactment no horse has been sued. However suits against horse owners have not changed. A horse cannot be held liable for negligence, which is what the acts cover, but a horse owner still can.
Sincerely,
James H. Moss
Editor Outdoor Recreation Law Review
www.snewsnet.com/lawreview
http://rec-law.blogspot.com/
Ski Resort Employee convicted of theft for staging a worker’s compensation accident.
Posted: August 12, 2008 Filed under: Criminal Liability, Ski Area 1 CommentAn employee of a ski resort has been convicted of grand theft. The employee tried to stage an accident to collect from the resorts worker’s compensation insurance. The employee talking with another employee realized a 4′ to 5′ deep hole had been dug to test drainage on the resort. After work, Nicholas Jason Beaver jumped repeatedly on the snow bridge covering the hole until he fell through and into the hole. Beaver was angry because he had been told he was not going to be hired back the next ski season. Two friends witnessed the incident.
While falling into the hole Mr. Beaver actually hurt his knee which required extensive medical care and arthroscopic surgery.
The fraud was uncovered after Beaver and his attorney turned down a $110,000 offer to settle the claim. A friend who knew of the fraud felt Beaver was cheating the resort and turned him in.
See Staged accident at ski resort leads to theft conviction and Resort employee convicted of grand theft for faking fall.
Sentencing is scheduled for August 22, 2008. The resort claims the medical care and legal fees are in excess of $65,000 and are asking for that in restitution from Beaver.
Plaintiff claims website said raft trip was safe for beginners
Posted: August 7, 2008 Filed under: Rivers and Waterways, Whitewater Rafting Leave a commentJennifer Caffarella has filed a lawsuit against Laurel Highlands River Tours for injuries she received rafting on the Youghiogheny River. She was injured when her unguided raft flipped and she stood up in the water trapping her foot. She claims she suffered disfiguring injuries and brain damage.
The basis of her claim is the raft company misrepresented its claims that the raft trip was safe for beginners. The raft company claims they require all rafters to watch a safety video and take a 30 minute training course before they are permitted down the river. The company claims that the plaintiff was specifically told not to stand up in the river which she did causing the foot entrapment.
Press releases or interviews with the press by the defendants usually don’t talk about releases. They normally just respond to the questions which are usually based on what the reporter knows, so we don’t know if the outfitter has a release.
At the same time, a training course is a lot of information. Add a thirty minute training course and you would have to think there was some risk involved or you would not get that much information. Foot entrapment is also one of the issues covered in every pre-trip safety talk because people want to stand up in rivers. The higher your head is above the water the safe you feel. It is tough and not understood by the ill informed that keeping your body low in the river is the safest course of action.
At the same time, dimple rock, is a dangerous river section where several people have died. The state of Pennsylvania just completed a study where they determined that Dimple Rock was not going to be removed. The study was prompted because of the safety issues presented by the rock. See Dimple Rock will remain unchanged in lower Youghiogheny River.
For the complete article see: Injured woman sues rafting company
It might be better to create a purely rental operation. If a car rental company can rent someone the most dangerous machine we have invented, the automobile, then a raft rental is easy. However, the course of attempting to make the experience easy and “safer” has lead the outfitters out of the protection afforded by a rental program and into a guide program where the liabilities are much greater. For that same reason, you probably cannot go back.
New Approach to Winning Lawsuits against Ski Areas
Posted: August 5, 2008 Filed under: Ski Area Leave a commentThe Brattleboro Vermont Reformer is reporting that Stratton Ski Area lost a lawsuit over the injuries to a 9 year old skier. The articles is reporting the court award the injured boy $137,500 for injuries he received when he skied into a rope closing a trail. The article reports the court found the resort negligent both in the way it closed the trail and the braking strength of the rope supposedly used to close the trail.
This is the first case I’ve seen where the tensile strength of the rope used to close a trail was at issue. The allegation was that a rope is not the proper way to close the trail is at odds with several other state statutes and court decisions. C.R.S. 33-44-107(4) specifically allows a rope to be used to close a trail. Numerous other states refer to rope as a proper way to close a trail in the state statutes.
Alaska also allows a ski trail to be closed by using a rope. Alaska Stat. § 05.45.060(d) (2008)
At the other end of the spectrum, the Ohio General Assembly has listed ropes as a hazard that skiers assume. O.R.C. § 4169.08(a)(1)
Other courts have ruled that ropes for closure or use at resorts are proper.
Withers v. Bogus Basin Rec. Ass’n, 156 P.3d 579 (ID 2007)
Kidd v. Taos Ski Valley, Inc., 88 F.3d 848 (10th Cir. 1996)
See: Stratton loses lawsuit over injured skier
This is always dangerous when a state allows a suit for an injury that other state say you cannot sue over. Besides being difficult for ski areas to determine what is going to work and what isn’t, the issue of skiing under control and on a closed trail seems to get ignored.
Update on SBTW right to raft case
Posted: July 31, 2008 Filed under: Whitewater Rafting | Tags: Camp, Lawsuit, Pennsylvania, Recreation, Rock climbing, summer camp, Tribune Democrat 1 CommentI reported in an early article Historical Use v. Money, Control & Power that a summer camp in Pennsylvania was suing the state to regain access to raft in a
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state park. The Tribune Democrat is reporting that the summer camp, Summer’s Best Two Weeks lost their attempt to receive an injunction. The article, Raft trip runs aground in court states a three judge panel denied the injunction.
An injunction is as it sounds, an immediate court order requiring someone to do or not to do something.
The article is unclear and I have not seen pleadings to determine if the attempts by SBTW are over or they are continuing their suit. Many times you can be successful on the main litigation after you have lost the injunction motion.
Another lawsuit between a skier and a snowboarder
Posted: July 24, 2008 Filed under: Skier v. Skier | Tags: Alpine skiing, Colorado, Colorado Mountain College, Leadville Colorado, Ski, Ski Resort, Sports 1 CommentAs I have talked about before, skier v. snowboard litigation is growing and a real mess. See 8 Year old boy sued in Colorado for ski collision. That case settled, see Lawsuit settles. However another lawsuit has been filed in Colorado see: Lawsuit filed in Snowmass skiing accident.
In this current case a husband and wife from Illinois are suing a snowboarder from New York. Allegedly the snowboarder was uphill from the plaintiffs and traveling at a high rate of speed when he hit the husband. The husband suffered a broken leg, broken collarbone and a torn rotator cuff. The spouse is suing for Loss of Consortium. Loss of Consortium is the loss of the services a spouse provides to a marriage. Loss of consortium includes the loss of sex. If you married sex has a value.
Colorado specifically allows for skier v. skier litigation in its Skier Safety Act. C.R.S. 33-44-109(1) (see below) when many states have said that skier v. skier collisions are a risk you assume when skiing. (Skiing here is interchangeable for any activity at a ski resort using the snow and mountain.)
The legal basis of the complaint is the failure of the snowboarder to comply with the Colorado Skier Safety Act. The Colorado skier safety act is a statute first passed in 1979 and amended several times. It is the strongest legislation protecting ski areas in the US. The act does have several requirements for skiers. Colorado Revised Statutes § 33-44-108 states:
As you read through this section of the act, you will notice however that the act places burdens on all skiers that must be followed. If you don’t you could be sued.
When you ski, you have to follow the rules and the laws. Everyone worries about the speed patrol or the ski patrol yanking their ski passes if they ski too
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fast or out of control. Here you can see if you ski out of control the repercussions can be much worse.
If you would like more education about ski area liability I teach a college level ski area risk management course through Colorado Mountain College. The course is SAO 110. The course is taught in Leadville Colorado for 10 weeks in the fall and is available online year round.
MA proposed stupid bill to promote litigation in kayaking
Posted: July 24, 2008 Filed under: Paddlesports | Tags: American Red Cross, Business, Kayak, Massachusetts, Organizations, Sea kayak 4 CommentsI always love it when people who have no idea what they are talking about, tell others how to do something. I’m not talking about tourists at Devils Tower
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Monument; in this case I’m talking the Massachusetts‘s legislation and how to teach sea kayaking.
Want proof? This was reported as testimony before a legislative committee.
Rep. William M. Straus, D-Mattapoisett is the sponsor of the bill and author of the quote above. As a member of the board of directors of the Trade Association of Paddlesports (but speaking for myself) and a boater for 45 years, I’ve never seen a kayak that I was “strapped into” fully or not fully.
The Massachusetts legislation is proposing that kayaking schools must teach someone how to wet exit.
That is as dumb as it sounds!
The idea is based on, of course, a grieving family person, who is guessing that there relative died when he could not wet exit from his overturned boat. So we need to make sure no one else suffers that same fate, I guess.
First off, no reports show how or why the person died. But that does not matter, the legislature needs to act.
What’s worse is the witness reports about the accident state he victim was upright when he died, that he had rolled back up. Kayak student drowns off West Island. Consequently the new law about teaching wet exiting is not even based on events the law attempts to cure.
Things get worse. A kayak instructor would have to have the following to teach kayaking:
- First aid training approved by the MA Department of Public Health
- Cardiopulmonary resuscitation (CPR) training approved by the MA Department of Public Health
- Certification from the American Canoe Association
- Water rescue certification from the American Red Cross.
Is this measure going to save a life? No. What this measure will do is three things.
First it will make the widow feel better. She will feel like she has done something to keep someone from dying. She will feel like her husband did not die in vain. Our loved ones are not allowed to die without a cause or accomplishment in the US we must go out with either a bang or a legacy.
Second it will create lawsuits. We now have rules that will give anyone injured kayaking the opportunity to start a lawsuit. The first aid card of the instructor was out of date, the class did not fully cover wet exiting, the ACA certified instructor left the class for a minute and the non-ACA certified assistant was the only person there. I was not taught correctly therefore I can sue.
Third we will also have more government regulation. We have a state agency sticking their nose into kayaking schools and telling them how to do things. Again, another group of people who know nothing about what they are talking about, telling someone else how to do it. This blog seems to be coming around full circle: People with no clue telling those with the necessary education and experience how to do something.
See House endorses kayak wet-exit training
Criminal Charges brought against Everest Guide in the UK
Posted: July 15, 2008 Filed under: Mountaineering Leave a comment
The Yorkshire Post UK, Everest killing charge , reported on what appears to be the extreme result of frustration, anger and loss. The father of a climber lost on Everest in 1999 has brought criminal charges against three of the outfitters and guides on the climb. David Matthews’s, 62, millionaire father of the missing and presumed dead Michael Matthews, 22, an Everest summiter, brought the prosecution. Charged where Jonathan Tinker, Henry Todd and Michael Smith with unlawfully killing and manslaughter in Central Criminal Court, London. The charges were eventually dismissed by the court. (See Everest verdict that frees the mountain.)
Michael Matthews disappeared as he was descending from the summit in 100 mile per hour winds. Mr. Matthews has also sued the outfitter and guides in this matter. The civil lawsuit is still pending in the US.
As most readers to this blog know, any mountain holds the lives of the climbers on its flanks and consequently the lives of those relatives sitting at home. Those who tackle these mountains accept that risk, in fact thrill in revel in it. However families at home may or may not understand both the risk and our acceptance of it.
Complicate this lack of understanding of the motivation with the question what happened? We have grown up learning each day how our world works. Green cheese once formed the moon we then saw a rock that came from the moon. Transplanting hearts from the dead to the living was the subject of movies and nightmares; today there is someone in every community who lives because of it. Yet, how and why someone dies on the summit of Everest, at least for now is a mystery. We can speculate based on those who have come close and survived as well as the research done by our scientist, but we want a body and we want to know why and how a loved one died.
My father had a large life insurance policy on me for many years. He figured half would go to get my body home. I never cared and told him to spend the money, rather than bring me home but he said “your mother would insist on it.”
At what point do those unanswered questions require an answer so badly that we not only sue someone, but we have them charged criminally. At what point does the loss of a loved one, require the destruction of the people the deceased wanted to spend time with. No more answers are going to be forthcoming. No answers at all will be found in either the criminal or civil courtroom. In fact, rarely are any answers found in court.
This lawsuit and these criminal charges will bring no satisfaction and no answers. At best it may create some level of retribution, possibly justice to the father when it is done, but even that is doubtful. At some point in life, you just must accept the fact that a loved one lived and died doing what they enjoyed and accept as much comfort as you can from that.
Cyclists suing over hole in bike path
Posted: July 8, 2008 Filed under: Cycling | Tags: Bicycle helmet, Bikeway, Cycling, Iowa, Sports Leave a commentA cyclist is suing King County Washington for $20 million for an accident he had on a bike path. Injured bicyclist sues King County over hazard in path.
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While on a bike ride in September of 2006 the front wheel of his bike hit a hole around a metal monument in the bike path. He fell from his bike suffering a traumatic brain injury even though he was wearing a bike helmet. He is still recovering from the accident.
Your heart has to go out to the cyclists and his family. A man was cycling one minute and two years later is trying to learn how to walk again.
It is hard to get more bike paths when we sue over the ones we get. Bike paths in most states are not a fiscal priority. In fact it takes tons of work by cyclists to get more bike paths. When a million dollar bike path turns around and costs the county $20 million and legal fees a lot of bike paths, nationwide suffer. This problem is currently facing RAGBRAI in Iowa. After lawsuit, Crawford County bans RAGBRAI.
Historically the courts have held you assume the risk of cycling on the streets. (See Case Brief: New York Court Finds for Club Med in 2002 Patron Bike Fall and Furgang v. Club Med, Inc., 299 A.D.2d 162; 753 N.Y.S.2d 359; 2002 N.Y. App. Div. LEXIS 10593. Subscription site).
It will be awhile before we know the outcome of this case. However we will probably feel the effects immediately.
The word “Safe” comes back to haunt outfitter and travel agent
Posted: July 2, 2008 Filed under: Whitewater Rafting | Tags: Grand Teton, Grand Teton National Park, Jackson Hole, National Park Service, Snake River, Vail Resorts Leave a commentJackson Hole News is reporting that a lawsuit has been filed over a rafting accident that occurred in 2006. Robert and Patricia Rizas are suing Vail
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Resorts, Grand Teton Lodge Company and Tauck Inc. for loss of income, earnings, medical expenses, pain and suffering and physical disability and loss of enjoyment of life and hoping for punitive damages
The accident that gave rise to the litigation occurred at Deadmans Bar on the Snake River in Grand Teton National Park. Three people died in the suit, two of whom were the brother and sister in law of the plaintiffs. However none of the claims being alleged assert a claim for the loss of life of their relatives.
Few states allow a sibling to recover for the loss of life of another sibling. Those states that do allow a sibling to recover for the loss of another sibling only allow recovery of minimal damages. In order to recover damages, the person who survives must have a direct and past or future monetary relationship with the deceased. By that I mean parents and children can sue for the loss of the other as well as the spouse for the loss of a spouse. Very rarely do courts allow or provide monetary damages for the loss of a sibling.
The defendants in this case are a little hard to sort out. <
Grand Teton Lodge is a lodge located in Grand Teton National Park. The lodge as part of the activities it offers guests is river trips on the Snake River. Grand Teton Lodge is owned by Vail Resorts Management Company, Inc. is a company selling tours, which in this case included nights at the lodge and the river trip. The river trips are described on the Grand Teton Lodge website as
The general allegations are the lodge and Vail conspired with the tour company to mislead and defraud the plaintiffs into taking a river trip which was described as safe.
The plaintiff’s state the Tauck brochure described the river trip as a “serene float through magnificent mountain scenery” which is very similar to how the Grand Teton Lodge website describes the
They are also claiming the brochures, the lodge and the raft guide described the river trip as safe. The river was running at run off levels at the time of the trip.
The complaint states the shuttle driver said the river trip was safe. The complaint also states the shuttle ride was more dangerous than the river trip.
The complaint states the companies were negligent in failing to warn of the dangers of the river during peak run off. The defendants were also negligent for not properly training the passengers, failing to provide a competent guide and equipment suitable for the conditions.
They plaintiffs are also claiming fraud because the defendants hid the dangers of the river. Had the plaintiffs known of the dangers of the river they would not have gone on the river trip. The complaint allegedly states the defendants place corporate profit above the personal safety
There are several interesting legal issues floating around in this case. The first is an attempt to have any release or acknowledgment of risk form thrown out of the case. The accident occurred inside the Grand Teton National Park so supposedly the river outfitter would be operating under a Permit or Concession contract with the
National Park Service
As a permittee the only document that can be used to reduce liability is the NPS Here claim that there was fraud involved will void any contract between the parties. The second is the use of the word safe. When people hear the word safe it is not a word that brings up a comparison of how safe, but to most people means absolutely risk free. So when any person, website or brochure states an activity is safe, that activity is risk free. Families take safe trips, they do not take dangerous ones. Fathers and mothers do not take their kids on risky activities.
Yet safe is a relative term. The most dangerous place in the US is the home bathroom. It is more dangerous, in most cases, to drive to the river than to raft the river. Although who knows based on the description of the shuttle ride in this case.
However here, the defendants are going to have an uphill battle if the statements are proved that the river trip is safe. People were injured, people died and people did not have a good time, therefore the river trip was not safe.
Safe is not a word that you should use in any communication with a possible client. Life is not safe.
Lawsuit settles
Posted: June 26, 2008 Filed under: Skier v. Skier | Tags: Colorado, Denver Post, Lawsuit, Sports 1 Comment
A lawsuit we wrote about in “8 Year old boy sued in Colorado for ski collision” has settled according to the Denver Post
Boy’s family settles skiing suit . The Denver Post is reporting the suit settled for $25,000.
Historical Use v. Money, Control and Power
Posted: June 16, 2008 Filed under: Whitewater Rafting | Tags: Outdoor recreation, Outfitter, Pennsylvania, Raft, Raft guide, Recreation, River, Youghiogheny River Leave a comment
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A summer camp in eastern Pennsylvania is suing the state of Pennsylvania over the right to run rafting trips on the Youghiogheny River. This statement does not seem like much at first however it is a very interesting legal argument about a state’s right to control commercial activities on its rivers. See SBTW sues DCNR for right to raft.
In this case the summer camp is Summer’s Best Two Weeks (SBTW), a Christian youth camp that has been running raft trips for its campers for more than 30 years. Several years ago the state licensed four outfitters as the only commercial rafting operators on the Youghiogheny River and ordered SBTW to quit running raft trips.
It is not evident from the information whether SBTW was offered a commercial permit.
The commercial rafting companies were probably excited because they knew they could pick up the $30,000 of rafting that SBTW would provide. Yet it seems no one in the state or the commercial operators understood basic economies: supply and demand. In this case SBTW did not hire one outfitter for one trip. The cost of hiring a commercial raft company to take the campers down the river was more than the summer camp could pay. Simple economics, rafting is fun, but at a price.
I have to admit a little bias in this case. While I was working on the rivers in the west my brother was a raft guide for SBTW.
We do not know the states reasoning for either excluding or not including SBTW. Was it to keep SBTW off the river or where they influenced by commercial companies to increase their income?
This story can be repeated on rivers and trails across the US. You can change out the word camp for college or any other non-profit group and see outfitters believing that by excluding them from being on the same area they can profit from the result. It never works. There is a ceiling on the amount these some groups can pay and in the case of college programs there are different goals. Commercial companies want to provide entertainment for their clients. Colleges may want to educate, teach, build teams or have numerous other goals.
Don’t get me wrong. I’m all for outfitters, they are my bread and butter. But the outdoor industry never looked at the economics of outdoor activities other than their own bottom line. Campers and their parents, college students and their parents, most groups and parents have a fixed amount of money they can be spent on the summer or an education. Once that amount of money is spent, no more activities are undertaken.
There scenario has been played out for years at various recreational hot spots and is going to boil over as the forest service notifies more colleges and universities that they are no longer allowed on USFS land without a permit or a commercial outfitter on a permit.
I write sometimes about emotions: anger, frustration or grief
Posted: May 14, 2008 Filed under: Climbing, Idaho | Tags: Anger, Family, Grief Loss and Bereavement, health, Idaho, Mental Health, Support group Leave a commentIn this case a family has taken their grief over the loss of a mountain climbing son and created an organization to assist in finding lost climbers. The Jon Francis Foundation was set up to help families search for missing loved ones.
Jon Francis was a 24 year old climber who was missing for a year on an Idahomountain.
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Jon’s father is also writing a book detailing the year long search for his son.
In all the family has undertaken a lot of work to help others they do not know. It has very real and well founded goals of helping others. All of the work is driven over the loss of a loved one. Always remember when you are dealing in this situation you are dealing with more emotion than many people can deal with. This emotion does not fade like most, in some cases it may continue to build.
In this case it has resulted in helping others who may be in the same terrible situation.
Stillwater family turns grief into purpose
‘TIS THE SEASON FOR INJURIES…. possibly Leading to the season of lawsuits!
Posted: April 29, 2008 Filed under: Skydiving, Paragliding, Hang gliding | Tags: Defendant, Insurance, Lawsuit, Parachuting, Plaintiff Leave a commentSeveral news reports have described lawsuits between skydivers who collide. In one case, one skydiver had logged 1800 jumps when he was hit in midair and injured by another skydiver. The injuries ended his skydiving and work career. A judge ruled the skydiver (and friend) who hit the Plaintiff (the injured skydiver) was negligent and awarded the Plaintiff $748,000. See Skydiver Wins Lawsuit Against Teammate. Yet skydivers hit each other every once in a while. See Skydivers injured in midair collision and YouTube has several videos of skydivers colliding.
The accident occurred when an eight-man team including the Plaintiff and Defendant, ended a formation and broke apart to open their chutes. The Plaintiff and Defendant where both members of the team and had been practicing these maneuvers. The Defendant’s elbow hit the plaintiff in the head, knocking the Plaintiff unconscious and tangling the chutes. The Defendant was able to free himself from the tangled chutes and landed safely. The Plaintiff was not and fell suffering broken bones and brain injuries.
The lawsuit seems to be full of folly. (A politically correct term in this case.) Immediately what comes to mind is that someone with 1800 jumps knows, understands and assumes the risk of an injury. The judge did not see it this way. For this discussion, however, a different point needs to be discussed. Does your release protect your customers from this type of lawsuit?
Your customers can be involved in lawsuits in three ways:
- As the Plaintiff – the person initiating the lawsuit.
- As a witness to the incident which caused the lawsuit.
- Rarely do we think of our customers as a Defendant in the lawsuit. However as rare as we may think it is, it is more common then you would imagine. (Co-participant liability)
Numerous articles have discussed the first case, i.e. as a Plaintiff, previously in this newsletter and it will continue to be our focus, however, the 2nd and 3rd ways your clients can be sued are also important. That your clients may be brought into a lawsuit as either a witness or a defendant is also quite important to you and can have a tremendous impact on your business. Some examples of how your clients can be involved as witnesses or defendants follow.
Having your customers called as witnesses can create significant public relations problems: You have six customers in a boat. One is injured and sues another customer. You have four other customers who are subpoenaed as witnesses. I can foretell that you now have six angry former customers. There is not much you can do which will appease everyone involved, except to end the lawsuit quickly; assuring the other witnesses they are not going to be brought into the suit as parties. (“Parties” is the term that defines Plaintiffs and Defendants).
In the 3rd scenario, your customer could be sued in part because you can’t and the injured person is looking for money: The future plaintiff walks into an attorney’s office and describes his injuries and the accident to an attorney. The attorney, after discovering a release, (and realizing he cannot sue the outfitter) decides to sue the person who caused the injury, your customer. Your customer fell off the raft, knocking the injured person into the water; or started the avalanche while backcountry skiing; or the youth who while playing falls on a tent injuring the occupants inside.
For whatever reason, your customer is now in a precarious situation. They may or may not be liable for the injuries. In the latter instance, they are upset over lost time and money. If they are liable for the injuries, they may be confused as to why someone would sue them for an accident while recreating. Either way, they may be mad at you for not helping them out of a bad situation.
Worse, the defendant/customer may not have insurance to cover the cost of the defense or any judgement. Normally homeowner’s insurance will cover this type of claim, however not all homeowner’s policies may cover this and not everyone has homeowner’s (or condor or renter’s) insurance.
Other than moral support, you cannot provide much help – except from your own pocket. Your insurance policy is only available if you or your employees are the named defendants. No matter what you may want to do, you are paying your own bills for attending the courtroom drama, (which is nothing like TV, in real life, the main problem is always keeping the judge and jury awake!).
However, your insurance company should be paying your attorney to be their. There are probably going to be several issues that could lead to problems if your attorney is not on top of the case.
Bad press is also going to accompany any lawsuit between your clients. The press will jump on this and wonder why you are not involved. The defendant client will bring in the press to ask the question of why you have not been named as a defendant as well. Either way, from the sideline you appear uncaring or apathetic while your clients beat each other up in court.
But this can be prevented. When your release is being written, make sure the “people” covered by the release includes everyone. Not just the employees, but Directors, Officers and Agents of the corporation, employees, managers and owners of the business, and “OTHER PARTICIPANTS.” This is a very simple solution to what can be a disastrous affair.
EXAMPLE
You are running a Mountaineering course and one climber slips, fails to self-arrest and slams into another climber. Besides sixteen puncture wounds from the crampon points, the injured participant has a broken ankle and no insurance. There is a question as to who failed to keep the tension between the falling client and the guide who was first on the rope. Did the guide slow down, did the student speed up or did they both fail to be observant.
You and the client who fell are sued.
In the normal scenarios the insurance company lawyer files a motion. Based on the release, the company is dismissed leaving a very angry student to stand alone for the damages.
In scenario #2, you are not dismissed from the suit. Your defense is to try to blame the client who fell. You now have a very mad student and a bad reputation in the industry.
Scenario #3: The falling client with no money forms an alliance with the injured client to testify against you and leave you holding an empty money bag.
Scenario #4: Your release defends both you and the falling student thus protecting that student from liability. You have a good witness on your side rather than one running to offer their cooperation to the opposition and between the release, assumption of risk, and the guide and client as witnesses you have a good defense.
The simple inclusion of language protecting everyone in the lawsuit can keep your and your clients coming back for more accidents in the wilderness.
Here, the release covering everyone shows the witnesses they are not going to be drug into the suit. Also, the release helps your clients understand the suit should end quickly. However your clients feel, whether the injured party needs money or is wrong, NO ONE wants to be involved in litigation.
Child falls on auto belay at climbing wall
Posted: April 24, 2008 Filed under: Climbing Wall | Tags: Belay device, Belaying, Charlottesville Virginia, Climb, Climbing Wall, Commercial Gyms, Indoor, Recreation 2 Comments
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An 8 year old girl was climbing at the Boar’s Head Sports Club of Charlottesville Virginia on an auto belay device when she fell 15′. She suffered a minor fracture to her foot after landing on the padding at the base of the wall. The contractors who installed the climbing wall is attempting to determine what failed.
What is always interesting in these cases is a competitor not understanding the industry and helping to start a lawsuit. In this case when contacted by the media, a competitor says sure auto ascenders fail. The industry is too small and there is not enough insurance for competitors to be making those dumb statements. See Insurance for Paddlesports Companies
See Off belay: Child falls from Boar’s Head climbing wall
Storm Over Everest
Posted: April 17, 2008 Filed under: Mountaineering, Uncategorized | Tags: Altitude, Climbing, David Breashears, Everest, Expeditions, Mount Everest, Mountaineering, Recreation Leave a commentDavid Breashears has created a stirring and thought provoking movie in Storm over Everest. I saw the movie last year at the Telluride MountainFilm
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Festival. The premise of the story is people who survived the 1996 Everest storms. David went back and interviewed the survivors, all but one I believe, from the 1996 Everest mess. (I am hesitant to call any wilderness high altitude death a disaster, it is simply what the mountain, weather, time and luck create). The recollections and thoughts about what happened ten years later are thought provoking, scary, exhilarating and very interesting.
For more information about the film see PBS Frontline Storm Over Everest which is scheduled to premiere May 13, 2008.
What struck me though was the attitude of the people ten years later. Some of them are still a little dumb founded they were not rescued by their guides. It is not overt statements by the survivors, but subtle statements that show a little confusion or mystery in the participants mind.
If you are an outfitter or guide, you might want to watch to see how your participants may look at you for their safety.
Either way, the movie answers a lot of questions about that chapter of Everest’s history and is truly worth seeing.
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Grieving Father starts organization to make skiing safer
Posted: April 16, 2008 Filed under: Skiing / Snow Boarding | Tags: California, National Ski Area Association, Ski Resort Leave a commentI’ve written about the issues that are the reasons why people sue. See Serious Disconnect: Why people sue., Common Mistakes made by Outfitters and Insurance C…, Another lawsuit asking for change, but only going …, and It’s Not Money. This article tackles the work of a grieving father who is dealing with the death of this daughter in a different way. See One man’s mission to make skiing safer.
Dan Gregorie lost his daughter, Jessica, at Alpine Meadows Ski Resort in 2006. His daughter was walking along the northern boundary of the resort when she dropped her snowboard over a cliff. When she attempted to collect the board she fell over the cliff.
The area that Jessica fell over was not marked with a fence or a warning sign.
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Dr. Gregorie has started the California Ski and Snowboard Safety Organization. The purpose of the organization is to have all ski areas use similar safety language at all resorts in the US.
The organization website states:
The resorts website is a little lacking. It uses the death of three Mammoth Ski Patrollers as an example of what can be done after a death at a resort. Interesting, but none of the changes the organization is promoting would affect these deaths. The other examples are equally weak as examples of government regulations controlling resorts. As a physician, a member of a group that is constantly fighting more government intervention, requesting or citing more government intervention seems to be hypocritical. However that is an assumption on my part, Dr. Gregorie may like government intervention.
The one link on the website is to www.skilaw.com. This site is run by Jim Chalat an attorney who represents plaintiffs in skier v skier collisions and suits against ski resorts.
Dr. Gregorie argues that the slope ratings are not standardized. The current Green, Blue, and Black are made by each resort which the website says is not enough. He also wants resorts to mark hazards consistently such as terrain grading, managing traffic and padding trees and fences at sharp turns. I have yet to see an instrument or machine that can grade a slope. Even if done by a committee the slopes are going to grade different across the US. Even more importantly, who should the slopes be graded for, the customers or a national average. A blue or black run from Ohio or Michigan is graded that way for the Ohio or Michigan customers. A blue runs means it is harder than a green run. Skiers understand that slope grading is done for that ski area and recognize that a black run in Ohio may be different than a black run in Colorado.
The website seems to be going both directions. It quotes extensively form the National Ski Area Association but at the same time shows how resorts have been fined for problems and links to a plaintiff’s attorney.
Notwithstanding the fact the National Ski Area Association has been trying to standardize signs across the industry, the better issue to explore is why?
None of the issues that the organization is striving to achieve would have prevented Jessica Gregorie’s death? Yet her father wants to save others.
I have no answers; I’m not trained to analyze those issues. However this is an example of the energy and emotion that can be created after the loss of a loved one. Think if this energy was directed in a negative way, against the ski area.
$400,000 challenge course settlement for shattered ankle
Posted: April 10, 2008 Filed under: Challenge or Ropes Course | Tags: Ankle, California, Los Angeles, Ropes course, Settlement, Teacher 1 CommentThe Appeal-Democrat is reporting in Sutter County teacher’s broken ankle worth $400,000 that a ropes course injury was settled for $400,000 right before the start of trial. The ropes course was owned by the Sutter County California School District and the experience was part of a conference for teachers.
The plaintiff was being lowered to the ground after crossing a catwalk when she separated from the lowering rope and fell approximately 10 feet shattering her ankle. As she was being lowered the plaintiff claims she was told “trust me, I will not let you fall.”
The plaintiff stated “I didn’t want to go. I was told I didn’t have a choice.” “As a nontenured teacher there is a lot of pressure to do everything that is set before you to do,” Gale said. “The idea of tenure is a key to why I did it.”
This is a classic example of “challenge by choice” not being fully recognized by everyone. Even though the participant at the moment might decide to participate, the entire event is not a choice. The participant is there as part of a corporate or work affair where they believe they have no choice if they want to maintain or move up in their career. This presents a real dilemma for the judge and jury; did the participant really want to be there? Did the participant really assume the risk?
Kayak rental shop found not liable in kayaking death
Posted: April 2, 2008 Filed under: Paddlesports | Tags: Canoes and Kayaks, Kayak, Lifejacket, Maui, Renting, Watercraft Leave a commentIn a case with very conflicting facts, a Federal Jury has found a Hawaiian kayak rental company not guilty for the death of a kayak renter. The Star Bulletin reported in Company not guilty in Maui kayak deaththat the rental company was not liable for the death of a woman whose body has not been found.
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The claims of the husband were the kayak rental company should not have rented the kayaks to the couple because of small craft warnings. The company claimed the husband had rented kayaks twice before with no problems and they had told the husband to kayak close to shore where they would be protected by the winds.
The facts of the case were in dispute as to how the wife died. The husband claims they were swept out to see and she was attacked by a shark. However the life jacket that was found showed no bite marks and there was no other indication of problems.
Large Jury Award in death of 9 year old Camper
Posted: March 31, 2008 Filed under: Paddlesports, Summer Camp | Tags: American Canoe Association, Camp Ozark, Canoe Trip (Crabapples), Canoes and Kayaks, Houston Chronicle, Sports, Water Sports 1 CommentA jury awarded $5 million dollars over the death of Sam Schubert when he was pinned under his canoe on a camp river trip. The Houston Chronicle reported the case in Trial in canoeing death of boy, 9, begins that the boy was at Camp Ozark and on a canoe trip when he was trapped in a strainer. The article pointed out the leader of the canoe trip was not certified in canoeing. The Injuryboard.com reported the jury awarded more than $5 million Summer Camp Found Negligent in Boy’s Death.
This is another example where marketing programs are creating lawsuits. The outdoor industry is running around madly attempting to get new business and at the same time hold itself out as safe. The word certification is touted as the end all be all of that issue. Here because the canoe trip leader was not certified, then the camp had to be at fault.
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The American Canoe Association, ACA has been teaching canoeing for almost 100 years. They also teach people to teach canoeing. They call the people who pass its canoe teaching course as certified. They not offer certification for anything else. They do have courses in any other aspects of canoeing and kayaking, and they don’t certify anyone in those disciplines.
The trial in this case was appealed to the Texas Appellate Court NO. 14-02-00723-CV, Ozark Interests, Inc., d/b/a Camp Ozark and Ozark Boys Club, and R. Sam Torn, appellants v. Allen Schubert and Majorie Schubert, individually and on behalf of the Estate of Samuel Schubert, a minor, deceased, Appellees. However the appeal was dismissed because the case was settled. No additional information can be found, but usually this means the parties negotiated a deal, usually for less than the jury award.
8 Year old boy sued in Colorado for ski collision
Posted: March 27, 2008 Filed under: Skier v. Skier, Skiing / Snow Boarding | Tags: Beaver Creek, Beaver Creek Resort, Colorado Skier Safety Act, Lawsuit, Ski, Vail Daily Leave a commentMost state Skier Safety Acts and several court decisions have stated that skier v. skier collisions are an inherent risk of skiing. Colorado is one of the exceptions to that rule. The Colorado Skier Safety Act specifically allows people involved in a collision to sue each other. Colorado Revised Statute § 33-44-109. Duties of skiers – penalties.
(1) Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.
This seems to have been taken to a new level in a case over a collision January 2007 at Beaver Creek‘s Arrowhead Ski Resort. The Vail Daily is reporting in Boy, 8, sued in Beaver Creek ski collision that an eight year old boy allegedly skied into a 60 year old man causing him injuries.
The 8 year old boy claims he only tapped the elderly gentleman with his ski boots. The 60 year old claims he tore a tendon in his shoulder and suffered considerably medical expenses. The suit is in Federal District Court in Denver meaning the damages allegedly suffered are at a minimum in excess of $75,000. The boy’s father is being sued because you cannot sue a child in Colorado; you sue the parents of the child for the child’s actions.
The issue has escalated with the plaintiff requesting a gag order be imposed on the parties. The plaintiff was receiving so many nasty phone calls and hate communications he hoped it would keep the defendant from commenting and stirring people up over the suit. The plaintiff, no matter whom, good or bad, should not be receiving this type of communications. We are of course a civilized society. As long as civilized societies allow you to sue kids. (See Gag order denied in Beaver Creek collision lawsuit)
Nor are we discounting the injuries the plaintiff received.
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The bigger problem is Colorado allows lawsuits by people for things that most states call an accident. You assume the risk of all the things that can go wrong when skiing. The Colorado Ski Act in the same section that allows people involved in a collision to sue each other prohibits the parties in a collision from suing the resort for the collision.
If the actions of a collision are so severe then the reckless party can be charged with a criminal act that should be enough of a deterrent. If you are skiing so recklessly that your actions are criminal, if you hit someone you will be charged with a criminal act. (See SkiSafety.com)
Women dies falling from climbing wall
Posted: March 27, 2008 Filed under: Climbing Wall | Tags: Climb, Commercial Gyms, Gym, Recreation, Rock climbing Leave a commentA 19 year old woman died after falling from a climbing wall as reported by the Wichita Falls Times Record News in Woman dies after fall from tower. The climbing gym is inside a 100 year old elevator which allows participants to climb up to 100 feet. The climbing gym had expressed its sympathy over the incident. See Gym reps express sympathy
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No other information was given.
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