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10th Annual CAIC Benefit Bash – Get your tickets now!

Tickets are selling quickly. Do you have yours?

Join the Friends of CAIC on Saturday, December 2, at the Riverwalk Center in Breckenridge and support the CAIC in their continued efforts in avalanche forecasting and education throughout Colorado. Get your tickets now before they sell out.

Saturday, December 2
10th Annual CAIC Benefit Bash
Breckenridge Riverwalk Center
5:00pm – 10:00pm
Tickets and more information: https://adecadedeep.eventbrite.com

Here are few things you have to look forward to:

We look forward to seeing you on December 2!

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2 People have already died in Avalanches this Year. Sign up and Support the Colorado Avalanche Information Center

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Backcountry Avalanche Forecast
Front Range

danger

Summary

We continue to receive reports of avalanches breaking into old, weak snow. Combine this with widespread shooting cracks and large thunderous collapses, and we have plenty of good evidence that dangerous avalanche conditions exist on north and east-facing slopes at higher elevations. The most suspect slopes now have freshly form wind-drifted slabs from the 1 to 4 inches of new snowfall, stacked on top of older early season snow. The slopes with the best coverage are also the slopes where you’re most likely to trigger an avalanche. You can trigger avalanches from a distance and from below, so give this terrain a wide buffer to address the unpredictability.

we now have slabs 1 to 2 feet thick on east-facing slopes, and you might be able to trigger an avalanches in just the freshly drifted snow even in areas that don’t harbor more deeply buried weak layers. Drum-like or hollow sounds underfoot are signs of this problem. You can reduce your risk by avoiding slopes where you observe active wind loading.

Persistent Slab

problem_1

What You Need to Know About These Avalanches Persistent Slab avalanches can be triggered days to weeks after the last storm. They often propagate across and beyond terrain features that would otherwise confine Wind and Storm Slab avalanches. In some cases they can be triggered remotely, from low-angle terrain or adjacent slopes. Give yourself a wide safety buffer to address the uncertainty.

Wind Slab

problem_2

What You Need to Know About These Avalanches Wind Slab avalanches release naturally during wind events and can be triggered for up to a week after a wind event. They form in lee and cross-loaded terrain features. Avoid them by sticking to wind sheltered or wind scoured areas.

Weather Forecast for 11,000ft

Issued Wednesday, November 22, 2017 at 6:33 AM by Brian Lazar

Wednesday Wednesday Night Thursday
Temperature (ºF) 35 to 40 25 to 30 40 to 45
Wind Speed (mph) 15 to 25 15 to 25 15-25 G50
Wind Direction WNW WNW WNW
Sky Cover Mostly Cloudy Partly Cloudy Partly Cloudy
Snow (in) 0 to 1 0 0

© 2008-2014 Colorado Avalanche Information Center. All rights reserved.


If you work in the Ski Industry you need to be a Member of the American Avalanche Association. Upcoming Avalanche Training for the 2017-18 Season Announced.

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Hello American Avalanche Association (A3) Members & Friends,

A3 and our alliance of six professional course providers are excited to announce this season’s Pro course offerings. We have been working collaboratively for years to develop a program of professional avalanche education in the United States. Most recently, on October 20th, A3 professional course providers met in Golden, Colorado to iron out some of the last details of this season’s course rollout. As a result, we are now proud to introduce a distinct program of high-quality and consistent professional training designed for the advancement of our nation’s avalanche workers.

If you are considering a Pro course this season, the following course providers are progressing through a multi-year A3 Pro Training review process:

Alaska Avalanche School – Pro 1, Pro 1 Bridge

American Avalanche Institute – Pro 1, Pro 1 Bridge, Pro 2

American Institute for Avalanche Research and Education (AIARE) – Pro 1, Pro 1 Bridge, Pro 2

Colorado Mountain College Leadville – Pro 1 – CMC Avalanche Science Certificate format

National Avalanche School – Pro 1 – NAS format

Silverton Avalanche School – Pro 1, Pro 1 Bridge

Please contact each of these Pro Course Providers directly about schedules and enrollment on a Pro Training course this winter. At this time, A3 recognizes Pro 1, Pro 1 Bridge, and Pro 2 courses from the six providers above who are proceeding through a rigorous review process. Our goal is to hone course quality and consistency amongst this initial group of pro providers before potentially expanding the program in the future. Other courses may still provide valuable training and/or continuing education, however, they are not recognized as part of the A3 Pro Training Program. For general questions about the A3 Pro Training Program you can visit the a3. Read on for more information on the new Pro courses…

Who should take a new Pro Course? And why?

A3 Pro Training courses – currently, Pro 1, Pro 1 Bridge, and Pro 2 – offer valuable, relevant skill development for avalanche workers at a variety of points in their careers. These programs provide a clear path for avalanche workers just entering the industry, as well as serve as excellent resources for seasoned professionals to gain the most current updates and refresh their skills. All A3 Pro Training courses:

  • Meet or exceed collaboratively designed, industry-driven skill and proficiency guidelines.
  • Are taught by top educators who also have a solid background of operational avalanche experience.
  • Teach, coach, and evaluate students to a consistent standard.

Pro 1is appropriate for entry-level avalanche professionals newly employed or seeking employment within the industry as well as seasoned avalanche professionals who wish to refresh their skills and get up to speed with current practices. The course covers skills and proficiencies that enable an individual to be a contributing member of an operational avalanche program, including making and documenting relevant observations to SWAG standards, managing personal and group risk in avalanche terrain, and contributing informed opinions during risk management discussions. Find more specific Pro 1 course details here.

Pro 1 Bridge is appropriate for individuals who recently took a Level 2 course and/or regularly apply snow and avalanche observation skills to SWAG standards in an operational setting and wish to demonstrate proficiency at the Pro 1 Level. To be set up for success, students should have their SWAG observation skills well-honed prior to this condensed course and be ready for rigorous evaluation. **Students who took a Level 2 course a long time ago and/or have not been applying snow and avalanche observation skills to SWAG standards in an operational setting are encouraged to consider a full Pro 1 course.** Review the Pro 1 Bridge evaluation criteria here.

Pro 2 is designed for developing avalanche professionals with several seasons of applied professional experience as well as seasoned professionals who are looking to develop skills applicable to leadership roles within their operation. The course covers skills and proficiencies that enable an individual to step into a leadership role within an operational avalanche program. A focus on operational risk management and decision-making skills such as forecasting, risk mitigation strategies, and professional communication. Find more specific Pro 2 course details here.

Again, please do not hesitate to reach out to A3 and/or individual Pro Course Providers with questions.

Sincerely,

A3 & The Pro Training Provider Alliance

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The New York Court found the injuries received by the Plaintiff, there was an inference that the collision was violent.

Snowboarder standing at the base of the hill talking was injured when a skier struck here when he could not stop.

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

State: New York; Supreme Court of New York, Appellate Division, First Department

Plaintiff: Keri Horowitz

Defendant: Ethan Chen

Plaintiff Claims: Negligence

Defendant Defenses: Inherent Risk

Holding: For the Plaintiff

Year: 2016

Summary

The entire case resolves around two issues. The inherent risks of skiing do not include standing at the bottom of the hill and getting hit when just talking and the plaintiff’s injuries were so bad; she was obviously hit by the defendant at a high rate of speed.

Facts

The facts are best described by the court.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably in-creased risk

Analysis: making sense of the law based on these facts.

A very simple case. When a skier is skiing out of control at a high rate of speed in the beginner area and knows he has limited ability to stop, is he liable if he hits someone standing in the beginner area. This court said yes.

Collisions are an inherent risk of skiing in New York. However, as here, the collision could not be expected. The plaintiff was not skiing, was barely “on the slope” and was still hit by a skier.

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.

The court found that those factors possibly gave rise to reckless conduct. Reckless conduct is not an inherent risk of skiing.

The supporting statement the court made about reckless conduct is interesting. The court found the injuries the plaintiff received could also infer the plaintiff was skiing recklessly.

Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.

Rarely are the injuries to the plaintiff ruled as indicative of something other than the injuries the plaintiff received unless an expert opines that the injuries could only have occurred by something specific happening. Meaning an expert witness is required to say that an injury that bad meant the defendant was traveling so fast.

So Now What?

It’s really hard to argue with this decision. When you get to the bottom of the hill, you should be slowing down and under control. Here the defendant was not doing either and hit the plaintiff. No one skiing could expect to be hit when standing at the bottom of the ski area. Consequently, a collision like that is not an inherent risk of skiing.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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

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Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Keri Horowitz, Respondent, v Ethan Chen, Appellant.

1649, 152242/14

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

July 5, 2016

July 5, 2016, Entered

PRIOR HISTORY: Horowitz v Chen, 2015 N.Y. Misc. LEXIS 4314, 2015 NY Slip Op 32238(U) (N.Y. Sup. Ct., Nov. 20, 2015)

CORE TERMS: skiing, reckless conduct, snowboarding, reckless, beginner’s, slope, speed

HEADNOTES

Negligence–Assumption of Risk–Skiing and Snowboarding Accident–Possibility of Reckless Conduct by Defendant

COUNSEL: [***1] Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellant.

Gersowitz Libo & Korek, P.C., New York (Michael Chessa of counsel), for respondent.

JUDGES: Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ.

OPINION

[*410] [**61] Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 24, 2015, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” (Pantalone v Talcott, 52 AD3d 1148, 1149, 861 NYS2d 166 [3d Dept 2008]).

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the [***2] significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances (see Moore v Hoffman, 114 AD3d 1265, 980 NYS2d 684 [4th Dept 2014]). Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ. [Prior Case History: 2015 NY Slip Op 32238(U).]


If you work outdoors in the Winter, you should be a member of the American Avalanche Association

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Hello James,

This email contains a couple of updates from A3 Pro Training world. If you’d like to know more about hiring a new Pro Training Coordinator and/or this season’s Pro Trainer Workshops then read on…

SEEKING NEW PRO TRAINING COORDINATOR —

We’re looking to hire a new Pro Training Coordinator (PTC) this fall. Josh Hirshberg and John Fitzgerald have collaborated to fill this role on an interim basis since last spring, and now it’s time to hire our permanent PTC. This position oversees and coordinates all programmatic aspects of A3’s Professional Avalanche Training Program. Accepting applications through October 31st. Ideal starting date in early December. If you or someone you know might be interested, check out/forward along the position description…

Pro Training Coordinator PD.pdf

PRO TRAINER WORKSHOPS, 2017/18 SEASEON —

Pro Trainer Workshops are for instructors who plan to lead professional avalanche courses for a Pro Course Provider as part of the A3 Pro Training Program. Enrollment priority is based on qualifications and affiliation with Pro Course Providers. These three-day workshops run by A3 focus on familiarization with Pro Training Course format, details, and evaluation standards.

This season’s workshops:

December 15-17, 2017 at Alta Ski Area, UT

April 6-8, 2018 at Mt Rose, NV

Workshop applications are due by October 31. Enrollment decisions made by mid-November. Workshop tuition is $400(Pro1)/ $500(Pro1&2). After initial enrollment period, any remaining workshop spots will be filled on a rolling basis from a prioritized wait list.

You will be asked for references, education, work history, documentation, and samples of writing. Please have materials ready to upload prior to starting the application. You will be asked to demonstrate that you meet or exceed the qualifications for Lead Trainers outlined in the Structure and Oversight document (found on A3 website Pro Training page). Here is a link to the application:

https://docs.google.com/forms/d/e/1FAIpQLSd6B3YJWcSH71y10XAWFpuXeAhbn46sDd6DegM90hCEgaTDEA/viewform?usp=sf_link

Please direct Pro Training questions to pro.training.

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Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey

The lawsuit failed, this time. However, the failure was due to  Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Gyl Cole, Ronald Cole, her husband

Defendant: Camelback Mountain Ski Resort

Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act

Defendant Defenses: The statute did not apply

Holding: For the defendant 

Year: 2017 

Summary

In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act

However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area. 

Facts 

The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.

While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.

The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear. 

The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.

Analysis: making sense of the law based on these facts.

The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.

All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…

Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the  consumer put fraudulent practices or business on notice or out of business.

Under the act, an unlawful practice was defined as: 

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.” 

A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” 

The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act. 

The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act
. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act
.

The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.

Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.

Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)

Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”

There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here. 

Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”

The case was dismissed. 

So Now What?

I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.

 Remember, Marketing makes Promises Risk Management has to pay for©

What do you think? Leave a comment. 

Copyright 2017 Recreation Law (720) 334 8529

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

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