Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807

Posted: June 25, 2012 | Author: Recreation Law | Filed under: Legal Case, Ski Area | Tags: Dunbar, Half Pipe, Jackson Hole, Jackson Hole Mountain Resort, Jackson Wyoming, Plaintiff-Appellant, ski area, Terrain park, Wyoming, Wyoming Supreme Court | Leave a comment

Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807

Camie R. Dunbar and Douglas Dunbar, Plaintiffs-Appellants, v. Jackson Hole Mountain Resort Corporation, a Wyoming Corporation, Defendant-Appellee.

No. 03-8057

United States Court of Appeals for the Tenth Circuit

2004 U.S. App. LEXIS 25807

December 14, 2004, Filed

Prior History: [*1] Appeal from the United States District Court for the District of Wyoming. (D.C. No. 02-CV-123D).

Disposition: Reversed.

Counsel: Robert E. Schroth Sr. (Robert E. Schroth Jr. and W. Keith Goody, with him on the briefs), Jackson, Wyoming, for Plaintiff-Appellant.

Mikel L. Moore (James K. Lubing, Jackson, Wyoming, with him on the brief), Christensen, Moore, Cockrell, Cummings & Axelberg, P.C., Kalispell, Montana, for Defendant-Appellee.

JUDGES: Before SEYMOUR, HENRY, and LUCERO, Circuit Judges.

OPINION BY: LUCERO

OPINION: LUCERO, Circuit Judge.

While skiing at the Jackson Hole Mountain Ski Resort, Camie Dunbar fell approximately twelve feet into a snowboard half-pipe, suffering severe injuries for which she alleges negligence on the part of Jackson Hole. At the time of her accident, Dunbar was attempting to exit a specially designated ski and snowboard terrain park. Finding that Jackson Hole did not owe Dunbar a duty of care for risks inherent to her chosen recreational activity under the Wyoming Recreational Safety Act, the district court granted summary judgment for the resort. Dunbar now appeals, arguing that the risks inherent to alpine skiing do not include the risk of falling into the side of a snowboard [*2] half-pipe when following a Jackson Hole employee’s instructions on how to exit the terrain park. We exercise jurisdiction under 28 U.S.C. § 1291 and REVERSE.

In March 2001, Camie Dunbar suffered the stated injuries when she skied off a snow ledge in a specially designed “terrain park” at the Jackson Hole Mountain Resort in Jackson Hole, Wyoming. A 33-year-old self-described intermediate skier from South Florida, Dunbar skied into the terrain park area with other members of her group who were part of a promotional ski trip sponsored by her employer Clear Channel Communications.

Containing various man made features such as a table top jump and a snowboard half-pipe, the Jackson Hole terrain park is designed for advanced skiers and snowboarders who choose to recreate in a very challenging risk-filled environment. The terrain park is separated by a fence and a boundary rope from an intermediate ski run. To enter the terrain park, skiers must pass through a gate marked with a warning sign, alerting them that they are entering an advanced ski area where “serious injuries, death, and equipment damage can occur.” At the time of the accident, the terrain [*3] park had been relocated to its position in an intermediate ski run, and did not appear on the Resort’s trail maps.

On the last day of her trip, Dunbar, along with Dave Dresher and Mike Jennings, went up the mountain intending to “investigate” the terrain park. In proceeding down an intermediate ski run, they skied through an initial gate providing a warning sign that they were entering a double black diamond “terrain feature trail.” After stopping adjacent to a red tram car which served as the office for the “pipe and park” crew who were responsible for maintenance of the terrain park, Dunbar observed other skiers and snowboarders maneuver various features in the terrain park.

Based on their observations, Dunbar and her companions decided that they did not want to try any of the features. In her deposition, Dunbar attested to thinking “this is my last day [and] I want to go home in one piece.” She stated that she did not know that there was a snowboard half-pipe in the terrain park, and believed instead that the area included only the jumps she observed from the red gondola. There is no suggestion by either party that Dunbar intended to jump any of the terrain jumps or intended [*4] to try her hand at stunts as a skier in a snowboard half-pipe. Having decided that she did not want to ski any of the double-black diamond features, she asked a Jackson Hole employee how to exit that area “if you don’t want to take this terrain park.” She was told either to take off her skis and hike back to the gate through which she had entered or to proceed in the direction of a “catwalk” to which the employee pointed.

Unbeknownst to Dunbar, the “catwalk” led to a side entrance to the snowboard half-pipe.

Ms. Dunbar along with her companions skied along the “catwalk.” Although it is a matter of some dispute between the parties, in order to proceed down the catwalk, skiers had to pass warning signs indicating that they were approaching a snowboard half-pipe area. Both Dunbar and her companions claim not to have noticed the signs. Dunbar and Jennings went along the catwalk, up an incline, across a flat deck, and fell approximately twelve feet into the half-pipe.

Jennings managed to maneuver his snowboard in such a way as to avoid injury.

Dunbar was not so fortunate. As a consequence of her fall into the half-pipe, she suffered severe injuries to her pelvis and thigh requiring surgery [*5] and intensive physical therapy. Dunbar testified that she will neither be able to return to her pre-injury range of motion, nor will she be capable of having a natural childbirth as a result of the injury to her hip.

Asserting that Jackson Hole’s negligence caused her injuries, Dunbar filed suit in district court. Jackson Hole filed a motion for summary judgment and a motion to strike portions of Dunbar’s affidavits as attempts to create sham factual issues in order to survive summary judgment. The district court granted both motions for Jackson Hole on the basis that portions of Dunbar’s affidavit were inconsistent with her deposition testimony. Dunbar now appeals.

We review a grant of summary judgment de novo, applying the same legal standards as the district court pursuant to Fed. R. Civ. P. 56(c). Chickasaw Nation v. United States, 208 F.3d 871, 875 (10^th Cir. 2000). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled [*6] to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must look carefully to determine if existing factual disputes are material, because “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A court may not grant summary judgment when “a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. When the moving party has informed the district court of the basis for its motion, however, a nonmoving party may not stand merely on its pleadings, but must set forth “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citing Fed.R.Civ.P. 56(e)). In our application of this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Simms v. Oklahoma ex rel. Department of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10^th Cir. 1999). [*7] Furthermore, as a federal court sitting in diversity, we must ascertain the applicable Wyoming law as announced by the Wyoming Supreme Court so that the substantive law applied in federal court does not differ from what would apply in state court. Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10^th Cir. 1994).

To protect providers of recreational sports and activities from liability for alpine skiing, equine activities, and other outdoor pursuits in the state, the Wyoming legislature limited their duty of care by enacting the Wyoming Recreation Safety Act. Wyo. Stat. Ann. § 1-1-121 et. seq.; see Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1101 (10^th Cir. 2002). As a matter of common law, in order to prevail in a negligence action, a plaintiff would first have to demonstrate that the defendant owed her a duty to act with reasonable care. See, e.g., Erpelding v. Lisek, 2003 WY 80, 71 P.3d 754, 757 (Wyo. 2003). The Safety Act is designed to limit the duty a provider of recreational sports and activities owes to participants.

Under the Safety Act, a provider of a recreational opportunity has no duty [*8] to protect participants from “inherent risks” of the particular sport or recreational opportunity. Wyo. Stat. Ann. § 1-1-123. In relevant part, the act provides:

(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

§ 1-1-123. Wyoming defines inherent risks as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-122(a)(i). Wyoming further defines “Sport or recreational opportunity” as meaning “commonly understood sporting activities,” which include “alpine skiing.” § 1-1-122(a)(iii). Thus, for example, a provider of an [*9] alpine skiing opportunity will not be liable for a duty of care with regard to dangers that are “characteristic of” or “intrinsic to” or “an integral part” of the sport of alpine skiing. However, the act does provide for a cause of action based on the negligence of the recreational opportunity provider when the injury is not the result of an inherent risk of the sport or recreational opportunity: “Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved.

. . .” § 1-1-123(c). Thus, whether a recreation provider owes its patrons a duty of care depends entirely on whether the specific risks can be characterized as inherent to the sport or activity.

What is inherent to a sport or activity, however, is far from self-evident. In Sapone, we defined “inherent” under the Wyoming Safety Act as either “’those risks which are essential characteristics of a sport and those which participants desire to confront,’ or they are undesirable risks which are simply a collateral part of the recreation activity.” Sapone, 308 F.3d at 1103 (citation omitted). We [*10] have further defined a risk that is not inherent as “a risk that was atypical, uncharacteristic, [and] not intrinsic to the recreational activity. . . .” Id. at 1104. Although equine activities are among those the Wyoming legislature clearly meant to protect, and although horseback riding indubitably involves inherent risks, we have concluded, following the Wyoming Supreme Court, that not all risks of horseback riding are inherent risks. Cooperman v. David, 214 F.3d 1162, 1167 (10^th Cir. 2000); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995). Some risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks.

Following the Wyoming Supreme Court in Halpern, we have held that “where genuine issues of material fact exist, the determination of whether something is or is not an inherent risk is a factual question that must be sent to the jury for determination.” [*11] Sapone, 308 F.3d at 1102.

As a preliminary matter, what sport or activity characterizes Camie Dunbar’s behavior is a matter of considerable dispute. Most generally, she was engaged in alpine skiing – a sport clearly covered by the Safety Act. If we were to analyze the risk at this level of generality, then it would certainly appear that falling twelve feet into a trench in the middle of an intermediate ski-run would decidedly not constitute an inherent risk of alpine skiing. Such a level of generality, however, is not appropriate. To determine what risk is inherent to Dunbar’s activity, we must go beyond a broad characterization and inquire into the specific circumstances of both her actions and those of the recreation provider.

When the Cooperman court examined the risks of horseback riding in the context of the specific facts of that case, for example, it employed a different analytical framework than if it had merely asked the abstract question whether falling off a horse is an inherent risk of horseback riding. Cooperman, 214 F.3d at 1167. Because a determination of what risks are inherent to a sport or activity may change by descriptive [*12] differences, we have stated that “when attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [participant] was exposed.” Cooperman, 214 F.3d at 1167. Instead, we must analyze the risk “at the greatest level of specificity permitted by the factual record.” Id. As an example of this principle, we have explained:

If the only fact presented to the court is that the horse bucked while the rider was properly sitting on the horse, we would frame the duty question as whether a bucking horse is an inherent risk of horseback riding. However, if the facts established that the owner of the horse lit firecrackers next to the horse and the horse bucked, we would ask whether a horse bucking when firecrackers are lit next to the horse is an inherent risk of horseback riding. Id.

For instance, in Cooperman, we determined that the risk of a slipping saddle, in light of the lack of scientific precision in hand cinching, is inherent to horseback riding. Id. at 1168. However, in Sapone, we concluded that a child sustaining injuries when falling [*13] from the saddle during a trail-riding lesson was not an inherent risk when there was evidence that the horse was too large, that the instructions were inadequate, that no headgear was provided, and that the route was too dangerous. Sapone, 308 F.3d at 1104. Similarly, in Madsen v. Wyoming River Trips, Inc., 31 F. Supp. 2d 1321, 1329 (D. Wyo. 1999), the district court determined that the risks inherent to white-water rafting did not include risks of injury resulting from the recreation provider’s overcrowding the boat. See also Carden v. Kelly, 175 F. Supp. 2d. 1318, 1329 (2001) (finding a genuine issue of material fact whether, given the actions and inactions of the recreation provider, a horse’s stumbling and falling was an inherent risk of horseback riding).

In the present case, the district court’s order hinged on a determination of where Ms. Dunbar was located when she made her choice to proceed down the catwalk. Thus, not simply a question of alpine skiing, but of alpine skiing in a designated terrain park became the significant “factual setting” the district court used to examine the inherent risks to which Dunbar was exposed. [*14]

In its order granting Jackson Hole’s motion for summary judgment, the district court stressed, and Jackson Hole urges on appeal, the need to focus on the choices that Dunbar made when entering the terrain park. Reasoning that an inherent risk analysis could not properly be conducted without considering Dunbar’s choices, the district court focused on the facts of Dunbar’s conduct as the recreational participant. Central to the district court’s determination of inherent risk was the simple fact of Dunbar’s choice to enter the terrain park.

The court found that “a terrain feature such as a half-pipe located within a fenced terrain park is an inherent risk to a skier that voluntarily and knowingly enters that park.” Dunbar v. Jackson Hole, No. 02-CV-123-D, slip op. at 14-15 (D. Wyo. June 16, 2003). Furthermore, the court concludes that having entered the terrain park, Dunbar “decided to enter the [metaphorical] ‘rodeo’ and thus assumed the risk associated with that activity.” Id. at 15. We disagree.

First, we note that the plain language of the Safety Act focuses on “any person who takes part in any sport or recreational opportunity,” Wyo. Stat. Ann. § 1-1-123 [*15] , and does not mention the location of the sport or activity.

We fail to see how simply being present in the terrain park redefines the sport or activity in which Dunbar is engaged, especially absent further choices to take part in any of the terrain park features. No doubt location may have a bearing on how to characterize a participant’s activity, but it is not automatically determinative as the district court suggests. n1 Indeed, from the record, it is not clear whether the double black diamond designation applied to the area of the intermediate ski run from the putative entrance to the terrain park to the red tram car and from the tram car to the catwalk. There seems to be no dispute that in the areas Dunbar traversed a skier would not confront any unusual risks or features that differed from those elsewhere on the intermediate ski run (at least until the point where Dunbar fell into the half-pipe). Thus it would seem to be an open question whether the warning signs and double black designation properly applied to the area that Dunbar actually traversed or if they were limited to the physical space containing the dangerous terrain features. If the double black diamond designation [*16] applies only to the specific terrain features and if the warnings apply only to those skiers and snowboarders who attempt to maneuver over and among the trail features down the fall line of the mountain, then it may be difficult to conclude that Dunbar assumed a double black diamond risk simply by skiing across the fall line on an intermediate slope to the tram car and then proceeding, as directed, by way of the catwalk. Proper resolution of these factual questions concerning the impact of Dunbar’s specific location on Jackson Hole’s duty, however, are for a jury, not for the court, to decide.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 As to the issue of whether or not Dunbar had actually entered the park, we note that the district court is itself not descriptively clear, stating at one point that “she had misgivings about entering and asked a JHMR employee how to get out of the terrain park.” Dunbar, slip op. at 13. Of course, if she had not “entered” she could not ask how to “get out.” We conclude from this only that mere presence in the terrain park may be too fine a reed to hang a determination that Dunbar was engaged in a categorically different recreational activity which contained greater inherent risks than does ordinary alpine skiing.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*17]

Second, we conclude that there is a difference between the consequences of conduct chosen by Dunbar, and risks that are inherent to that choice. It does not necessarily follow, as the district court finds, that having entered the terrain park, Dunbar also chose to confront all the features and conditions present within it. Although the district court emphasized the choices and conduct of the plaintiff in determining what risks she assumed, the court makes no distinction between the risks that are inherent to her actual choices – to ski into the terrain park area, but not to “take” any of the features – and risks that are inherent to choices one would make when actually intending to ski over the specific features.

Indeed, a reasonable person who entered the general area of the terrain park would stop first to view the features and decide whether or not to attempt to maneuver over or through any of them. In fact, Jackson Hole’s warning signs, the presence of which figure prominently in this dispute, direct skiers and snowboarders to “please observe terrain features, their risks, and their degree of difficulty before using.” That is precisely what Ms. Dunbar did. She chose to enter [*18] the area of the terrain park – if not the terrain park itself – but specifically chose not to “use” or “take” any of the terrain park features after doing exactly what Jackson Hole’s signs advised her to do: “observe . . . before using.” Presumably, Jackson Hole does not wish to claim that it operates like the Hotel California – where you can check in any time you like but you can never leave. Accordingly, it was error for the district court to conclude that having followed Jackson Hole’s instructions, having assessed the risks and decided not to use the terrain features, that there is no material issue of fact concerning whether a skier could leave without accruing those very risks. Having “entered” the terrain park, Dunbar did not “use” the terrain park as a terrain park—viz., she did not attempt to jump the table top jump nor did she attempt to do stunts in the snowboard half-pipe. She attempted to exit the terrain park without “taking” any of the features, and followed instructions from a Jackson Hole employee on how to exit the park. Given the specific factual setting of this case, what risks are associated with Dunbar’s actual choices and what duty Jackson Hole owed her are [*19] properly questions for the jury.

Accordingly, we conclude that the district court erred when it found that the risk of falling twelve feet into a snowboard half-pipe was an inherent risk of Dunbar’s alpine skiing when she had stopped and observed double diamond terrain features and had chosen not to “take” those features. When, as is here, genuine issues of material fact exist, it is properly a question for the jury to determine whether dangers that are “characteristic of” or “intrinsic to” or “an integral part” of the sport of alpine skiing evaluated under the specific factual circumstances of this case include those encountered by Dunbar in skiing from the main intermediate run to the tram car and from the tram car along the catwalk. Sapone, 308 F.3d at 1102 (“whether something is or is not an inherent risk is a factual question that must be sent to the jury for determination”); see also, Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir. 1992) (holding under a Vermont statute similar to Wyoming’s, that determination of inherent danger “is a question of fact properly submitted to the jury”).

As we have observed, inquiry into what [*20] dangers constitute an inherent risk under the Safety Act is inextricably intertwined with an inquiry into what duty the recreation provider owes to the participant, and whether that question is properly one for the judge or jury. If Dunbar’s accident was not the product of an inherent risk of her recreational activity, then a question remains for the fact finder concerning what duty was owed her and whether Jackson Hole fulfilled that duty. We conclude that the district court improperly analyzed the issue of Jackson Hole’s duty.

When the issue of duty involves questions of fact, as is the case with “inherent risks,” the Wyoming Supreme Court has held that the question of a defendant’s duty should be resolved by a jury. Halpern, 890 P.2d at 565. However, in certain instances where no material questions of fact exist – e.g., if the risk is clearly one inherent to the sport – the district court may decide as a matter of law that a provider does not owe a duty to the participant under the Safety Act. Halpern, 890 P.2d at 566 (noting that “in appropriate cases where no genuine issues of material fact exist, the district court may decide as a matter of [*21] law that the provider does not owe a duty to the participant.“). Such was not the case here.

How the district court framed the statement of Jackson Hole’s duty is crucial to a proper disposition of this case. It has become something of a standard analysis in this line of cases for a district court to frame the question of duty, in addition to the question of inherent risk, in the form of a fact-specific inquiry. Indeed, as the district court noted in another Safety Act case, “the Court cannot stress how important it is to frame the duty question correctly. If the duty question is framed incorrectly, the legislature’s intent to allow a cause of action for negligence will be lost.” Madsen, 31 F. Supp. 2d. at 1329.

In the present case, the district court framed the question of duty as follows:

Whether Camie Dunbar’s injuries occurred as a result of the inherent risk of alpine skiing when this thirty-three year-old experienced skier knowingly entered a specially designated terrain park, skied past five warning signs, made the choice not to exit by way of the gate she entered understanding that she would encounter expert and double expert terrain features, [*22] skied up the visible half-pipe wall, and across a fourteen-foot platform.

Dunbar, slip op. at 14. We have already concluded that Dunbar’s mere presence in the entrance area of the terrain park does not give rise as a matter of law to a heightened risk above what is normal to alpine skiing. We now conclude that the question of Jackson Hole’s duty was improperly framed because it employs facts in dispute, and does not view the facts in the light most favorable to the non-moving party.

Specifically, the district court’s finding that Dunbar chose not to exit the terrain park area via the gate by which she entered understanding that she would encounter expert and double expert terrain features is itself a fact open to dispute. Whether or not her choice was made with that understanding is a disputed fact, and read in the light most favorable to the plaintiff, the district court improperly incorporated a disputed fact in a light favoring the defendant. Second, the district court frames the duty question by stating that Dunbar “skied up the visible half-pipe wall.” Id. Whether or not what she skied up was in fact visibly a half-pipe wall is itself a disputed fact, and inclusion [*23] of this fact in a light most favorable to the defendant was improper.

Finally, the district court states that Dunbar “skied past five warning signs,” which although perhaps true (though contested), shades the “duty question” in a way that ignores the factual issues of the content and import of each of those signs in the context of the Jackson Hole employee’s instructions on how to exit the park. Given the fact that we have previously held that the question of a provider’s duty is partially determined by a fact-specific framing of inherent risk, we conclude that the district court erred in making factual findings that are properly findings for a jury. See Sapone, 308 F.3d at 1102.

Finally, we note that whatever risks Dunbar assumed herself, it seems clear that she did not also assume the risk of needing to interpret the delphic statements of Jackson Hole’s employees. Both Jackson Hole and the district court focus on the issue of choices that Dunbar made, ignoring the choice that Jackson Hole made for her in directing her to exit the terrain park area by either hiking out the main entrance or skiing along the catwalk. We have made clear that a duty of care may arise [*24] from choices made for the participant by the recreation provider. Sapone, 308 F.3d at 1104; see also, Madsen, 31 F. Supp. 2d at 1328-29; Carden, 175 F. Supp. 2d. at 1328-29. Absent from the district court’s order is any recognition that once Dunbar asked a Jackson Hole employee how to exit the terrain park area without “taking” any of the features, Jackson Hole owed a duty to provide her with appropriate instructions, which might have included a specific warning to beware of the drop into the half-pipe at the end of the catwalk. Whether or not they fulfilled that duty is a question for the jury. Accordingly, the district court erred when it framed the question of Jackson Hole’s duty by incorporating facts in dispute and when it failed to submit the question of duty to the fact finder pursuant to Wyoming Supreme Court precedent.

On appeal, Dunbar also raises as error the district court’s granting Jackson Hole’s motion to strike portions of her affidavit as creating sham factual issues to survive summary judgment. Those supposed sham facts dealt with Dunbar ‘s understanding of whether she had entered the actual terrain park (the [*25] area including the jumps) when located at the tram car. Because we conclude that summary judgment was inappropriate, the issue of Dunbar’s affidavit is now moot.

III

For the reasons set forth above, we REVERSE the district court and REMAND for further proceedings consistent with this opinion.

Colorado Sees Skier Visits Recede for 2011/12 Season

Posted: June 14, 2012 | Author: Recreation Law | Filed under: Colorado, Skiing / Snow Boarding | Tags: Adventure travel, Colorado, Resort, Rocky Mountain, Ski, Ski Resort, ski season, Snow, United States | Leave a comment

FOR IMMEDIATE RELEASE

http://www.coloradoski.com/media/press-releases

(Photo credit: Wikipedia)

Colorado Sees Skier Visits Recede for 2011/12 Season

Bright Spots in Colorado Ski Country USA amid Lackluster Winter

Boulder, Colo. – June 6, 2012 – Colorado Ski Country USA (CSCUSA) announced today at its 49th Annual Meeting, that its 22 member resorts hosted an estimated 6.16 million skier visits during the 2011-12 ski season. This represents a decrease of 11.4 percent, or approximately 790,000 skier visits, compared to last season, which was the fourth best season on record. Compared to the five year average, CSCUSA member resort skier visits are down 11.9 percent. The overall snow related decline interrupted the recovery resorts had been building since 2008/09.

In an indication of the extreme weather impacting Colorado resorts this season, Colorado’s western slope experienced its third driest and seventh warmest winter in records going back to 1895. Precipitation on the Western Slope this winter was 43 percent below average, and down every month of the winter. In Colorado overall, March 2012 was the driest in more than 100 years, and we experienced the second warmest March on record. President and CEO of Colorado Ski Country USA Melanie Mills noted, “Fortunately, seasons such as the one just ended have proved to be historically rare and the ski industry has exhibited a remarkable ability to bounce back after poor snow years in the past.”

Mills continued, “Much of the ski industry in the US was confronted with weather challenges last year, but several of our resorts bucked the national trend and showed signs of resilience during what was clearly an uninspiring winter.”

The diversity of ski resorts in Colorado saw some areas post increases and even records in visitation. Colorado Ski Country resorts also saw strength in both domestic and international destination visitors which helped soften the economic impacts to resort operators and resort communities of the overall decline in visitation.

Colorado is favorably positioned for rare dry spells given that resorts are at higher elevations where the air is dryer and colder, therefore allowing the snow to maintain consistency. Aided by colder temperatures favorable for snowmaking, resort snowmakers and slope groomers were able to maintain a quality snow surface throughout most of the season.

Momentum going into the season was strong after seeing an uptick in visitation last year, and economic conditions generally improved during the season. Abundant amounts of snow came in the fall, allowing some resorts to open earlier than planned, but the uncharacteristic precipitation deficit brought that momentum to a standstill. Snow came in the middle of the season and several resorts broke single day snowfall totals, but perception of an underperforming winter was already set in skiers’ minds. “We’ve had dry years in the past, and we’ll have dry years again,” Mills explained. “Not every year can be a record breaking year, and with nary a snowflake in what is normally our snowiest month in Colorado, season visitation numbers are disappointing, but not unexpected.”

CSCUSA resorts upheld their dedication to providing guests with a quality product and superior service which sets Colorado apart from other ski destinations, and keeps the state’s appeal as the premiere place for winter travelers. “Our resorts have so much to offer visitors that in some cases the world class skiing is just one of a menu of activities. And for many people, the season was more about being outside and spending time with friends and family taking in the beautiful outdoors and wonderful amenities of our resorts.”

With certain assumptions in place, statewide skier visits for Colorado are estimated at 11,010,584 million. This estimation shows Colorado being down 9.8 percent, or approximately 1,195,000 visits, compared to last season. On a national level, skier visits overall are down 15.7 percent with the Rocky Mountainregion seeing a decrease of 7.2 percent.

Skier carving a turn off piste (Photo credit: Wikipedia)

Skier visits are the metric used to track participation in skiing and snowboarding. A skier visit represents a person participating in the sport of skiing or snowboarding for any part of one day at a mountain resort.

These numbers are preliminary results and subject to final adjustments by CSCUSA members. The decision to release individual numbers is up to each individual resort.

Client dies, be banned from your occupation for five years.

Posted: May 10, 2012 | Author: Recreation Law | Filed under: Avalanche, Skiing / Snow Boarding | Tags: Adventure travel, Criminal, Europe, Jim Moss, Ski, ski instructor, skiing, skiing accidents | Leave a comment

Once you leave the US, you are no longer protected by US laws.

Two ski instructors are facing a five year ban from skiing and a fine for the death of a client in an Avalanche. The ski instructors had taken the client into a known danger zone where the client was caught and died.

See Prosecutor wants 5 year ban for ESF instructors

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2011-2012 Ski Season Skier/Boarder Fatalities

Posted: May 2, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: helmet, Ski, Ski Resort, Vail Colorado, Winter sport | Leave a comment

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Several Corrections have been made to items reported earlier.

If this information is incorrect or incomplete please let me know. This is up to date as of April 15, 2012. Thanks.

#	Date	Resort	Age	Skier Ability	Ski/ Tele /Boarder	Helmet	Reference
1	11/18/2011	Vail	62		Skier	Yes	http://rec-law.us/rBcn7A
2	11/18/2011	Breckenridge	19	Expert	Boarder	Yes	http://rec-law.us/rBcn7A
3	11/27/2011	Mountain High ski resort	23	Beginner	Boarder	Yes	http://rec-law.us/uGuW17
4	12/18/2011	Sugar Bowl ski resort	7	Expert	Skier		http://rec-law.us/viAqCR
	1/4/2012	Medical					http://rec-law.us/y3sOtx
5	1/11/2012	Ski Apache	29		Skier	No	http://rec-law.us/zdfQ4k
6	1/12/2012	Sugarloaf ski resort	41		Skier	Yes	http://rec-law.us/yNHkuc
7	1/14/2012	Silverton Mountain Ski Area	25	Expert	Skier		http://rec-law.us/zcw6MB
8	1/17/2012	Heavenly Mountain Resort	34		Boarder	Yes	http://rec-law.us/yRAXXc
9	1/18/2012	Aspen Highlands	30		Boarder	Yes	http://rec-law.us/wv7vDs
10	1/18/2012	Mt. Hood Meadows Ski Resort	15		Boarder	No	http://rec-law.us/AAnq46
11	1/19/2012	Park City	29		Boarder	Yes	http://rec-law.us/w0k4Pe
12	1/20/2012	Copper Mountain	51			Yes	http://rec-law.us/wD06TR
13	1/20/2012	Whiteface Mountain	25			Yes	http://rec-law.us/wDkcfl
14	1/21/2012	Vail	13	Expert	Skier		http://rec-law.us/xdhVcp
15	1/22/2012	Winter Park	28	Expert	Skier		http://rec-law.us/A0bbt
16	1/24/2012	Steamboat Ski Area	32		Boarder		http://rec-law.us/wF9UFc
17	1/24/2012	Taos Ski Valley	60		Skier		http://rec-law.us/wUl1Vz
18	1/25/2012	Keystone Ski Area	54		Skier		http://rec-law.us/AihrSt
19	1/27/2012	Mt. Hood Skibowl	17		Boarder		http://rec-law.us/zzD3KB
	1/29/2012	Medical	19				http://rec-law.us/wcPB7k
20	1/30/2012	Seven Springs Mountain Resort	36		Skier		http://rec-law.us/yOwgDg
21	1/31/2012	Solitude Ski Resort	74		Skier	No	http://rec-law.us/w68s4A
22	2/1/2012	Squaw Valley	51		Skier		http://rec-law.us/xqDrGE
23	2/4/2012	Sugarbush Resort	41		Skier	Yes	http://rec-law.us/zTDKPK
24	2/4/2012	Ski Windham Mountain Resor	54		Skier		http://rec-law.us/ySA8W4
25	2/5/2012	Keystone Ski Area	58		Skier	No	http://rec-law.us/wH6QJA
26	2/5/2012	Ski Windham Mountain Resort	54		Skier		http://rec-law.us/zcTZpF
27	2/6/2012	Mount Snow	33				http://rec-law.us/ABqYPQ
28	2/8/2012	Vail	37			Yes	http://rec-law.us/zF4Ck2
29	2/9/2012	Keystone Ski Area	72			Yes	http://rec-law.us/A9YwUD
30	2/11/2012	Jay Peak Resort	29		Boarder	Yes	http://rec-law.us/x3rzek
31	2/11/2012	Terry Peak Ski Area	24		Skier	No	http://rec-law.us/A0BvQq
32	2/11/2012	Terry Peak Ski Area	24		Skier	No	http://rec-law.us/A0BvQq
33	2/18/2012	Sun Valley
34	2/19/2012	Copper Mountain	15		Boarder	Yes	http://rec-law.us/xHsBHH
35	2/26/2012	Keystone Ski Area	24			Yes	http://rec-law.us/y4CANi
36	2/23/2012	Northstar California	52			Yes	http://rec-law.us/zgqcTZ
37	3/1/2012	Burke Mountain Ski Resort	70			Yes	http://rec-law.us/xOjOY7
38	3/8/2012	Copper Mountain	18		Skier	Yes	http://rec-law.us/xotYaO
39	3/9/2012	Keystone Ski Area	23		Skier	No	http://rec-law.us/xJ2THl
40	3/10/2012	Terry Peak Ski Area	54		Skier		http://rec-law.us/ADkQWq
41	3/10/2012	Loveland Ski Area	71		Skier	No	http://rec-law.us/Ajhcko
42	3/14/2012	Crested Butte Mountain Resort	36		Skier	No	http://rec-law.us/w3lbdr
43	3/16/2012	Northstar California	51		Skier	Yes	http://rec-law.us/FQM5hK
44	3/18/2012	China Peak Ski Resort	30		Boarder		http://rec-law.us/FQ2kwq
45	3/18/2012	Sierra-at-Tahoe	54		Skier		http://rec-law.us/FVYq4q
46	3/19/2012	Sugar Bowl Ski Resort	20		Boarder		http://rec-law.us/GAucKe
47	3/21/2012	Mt. Hood Skibowl recreational area	38			Yes	http://rec-law.us/GOnK3g
48	3/24/2012	Wold Creek Ski Area	19			No	http://rec-law.us/GP0RXB
	3/23/2012	Medical				Yes	http://rec-law.us/H7nGFL
49	3/28/2012	Skibowl	37			Yes	http://rec-law.us/GO4xMx
50	3/31/2012	White Pass Ski Area	22				http://rec-law.us/H3

What do you think? Leave a comment.

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NSGA stats say skiing is flat, numbers are right, why?

Posted: April 11, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Alpine, Downhill, National Sporting Goods Association, Ski, Ski Resort, Sports, winter sports | Leave a comment

National Sporting Goods Association (NSGA) have numbers you can rely on.

NSGA numbers for Downhill (alpine) skiing participation show the following for the past 8 years.

	2002	2004	2006	2008	2010
Total Skiers	7.4%	5.9%	6.4%	6.5%	7.4%
% of US Population	9.1%	10.0%	12.9%	6.7%	7.9%
Avg # of days	9.1%	10.0%	12.9%	6.7%	7.9%

Over the past ten years the number of people skiing has changed Zero Percent. The total fluctuation over ten years is 1.5%. Skiing is not growing, even though the US population is growing. As a percentage of population skiing has dropped 1.2% and fluctuated 2.1%.

Andrej Šporn at the 2010 Winter Olympic downhill. (Photo credit: Wikipedia)

As the population goes up, skiing is keeping up.

Even worse, the age group that the growth in in skiing should be coming from is dropping.

Here is a scary number

	2002	2004	2006	2008	2010
Age 25 or Older	71.7%	60.6%	62.4%	53.2%	58.3%

72 percent of skiers used to be 25 or younger. Now that number is 13% and again, not in line with the current us population. Growth comes from the young, or at least growth that skiing needs and can count on for years to come.

Snowboarding is saving ski areas, but not by much.

	2002	2004	2006	2008	2010
Snowboard Participation	5.9%	6.3%	5.2%	5.8%	6.1%

However that “growth” is only .2% over 10 years with a fluctuation of .4%. Smaller fluctuation occurs in snowboarding however there is some growth.

I’m speculating that snowboarders are not as finicky about snow conditions?

As you can see, over the past four years snowboarding is growing. Why?

Freestyle skiing jump (Photo credit: Wikipedia)

Snowboarder participation growth is from those 24 and younger.

	2002	2004	2006	2008	2010
Age 24 or Younger	56.2%	60.6%	49.4%	57.8%	68.3%

	2002	2004	2006	2008	2010
Skier Visits	54.4%	57.1%	55.1%	57.1%	60.5%
Boarder Visits	11.5%	10.5%	9.8%	20.0%	24.5%

Skiing is not a growing sport. Thirty years ago it was the glamor sport. Twenty years ago it was thing to do. What has changed?

What do you think? Leave a comment.

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Skier/Boarder Fatalities 2011-2012 Ski Season 3/15/12

Posted: March 28, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: fatality, helmet, Inbounds, Ski, ski area, Ski Resort, snowboarding, Sport, Vail Colorado, Winter sport | Leave a comment

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

If this information is incorrect or incomplete please let me know. This is up to date as of March 15, 2012. Thanks.

#	Date	Resort	Age	Skier Ability	Ski/ Tele /Boarder	Helmet	Reference
1	11/18/2011	Vail	62		Skier	Yes	http://rec-law.us/rBcn7A
2	11/18/2011	Breckenridge	19	Expert	Boarder	Yes	http://rec-law.us/rBcn7A
3	11/27/2011	Mountain High ski resor	23	Beginner	Boarder	Yes	http://rec-law.us/uGuW17
4	12/18/2011	Sugar Bowl ski resort	7	Expert	Skier		http://rec-law.us/viAqCR

6	1/11/2012	Ski Apache	29		Skier	No	http://rec-law.us/zdfQ4k
7	1/12/2012	Sugarloaf ski resort	41		Skier	Yes	http://rec-law.us/yNHkuc
8	1/14/2012	Silverton Mountain Ski Area	25	Expert	Skier		http://rec-law.us/zcw6MB
9	1/17/2012	Heavenly Mountain Resort	34		Boarder	Yes	http://rec-law.us/yRAXXc
10	1/18/2012	Aspen Highlands	30		Boarder	Yes	http://rec-law.us/wv7vDs
11	1/18/2012	Mt. Hood Meadows Ski Resort	15		Boarder	No	http://rec-law.us/AAnq46
12	1/19/2012	Park City	29		Boarder	Yes	http://rec-law.us/w0k4Pe
13	1/20/2012	Copper Mountain	51			Yes	http://rec-law.us/wD06TR
14	1/20/2012	Whiteface Mountain	25			Yes	http://rec-law.us/wDkcfl
15	1/21/2012	Vail (skied into closed area)	13	Expert	Skier		http://rec-law.us/xdhVcp
16	1/22/2012	Winter Park	28	Expert	Skier		http://rec-law.us/A0bbt
17	1/24/2012	Steamboat Ski Area	32		Boarder		http://rec-law.us/wF9UFc
18	1/24/2012	Taos Ski Valley	60		Skier		http://rec-law.us/wUl1Vz
19	1/25/2012	Keystone Ski Area	54		Skier		http://rec-law.us/AihrSt
20	1/27/2012	Mt. Hood Skibowl	17		Boarder		http://rec-law.us/zzD3KB

22	1/30/2012	Seven Springs Mountain Resort	36		Skier		http://rec-law.us/yOwgDg
27	1/31/2012	Solitude Ski Resort	74		Skier	No	http://rec-law.us/w68s4A
23	2/1/2012	Squaw Valley	51		Skier		http://rec-law.us/xqDrGE
26	2/4/2012	Sugarbush Resort	41		Skier	Yes	http://rec-law.us/zTDKPK
33	2/4/2012	Ski Windham Mountain Resor	54		Skier		http://rec-law.us/ySA8W4
24	2/5/2012	Keystone Ski Area	58		Skier	No	http://rec-law.us/wH6QJA

30	2/6/2012	Mount Snow	33				http://rec-law.us/ABqYPQ
28	2/8/2012	Vail	37			Yes	http://rec-law.us/zF4Ck2
29	2/9/2012	Keystone Ski Area	72			Yes	http://rec-law.us/A9YwUD
31	2/11/2012	Jay Peak Resort	29		Boarder	Yes	http://rec-law.us/x3rzek
32	2/11/2012	Terry Peak Ski Area	24		Skier	No	http://rec-law.us/A0BvQq

34	2/18/2012	Sun Valley					http://rec-law.us/GB3TCy
35	2/19/2012	Copper Mountain	15		Boarder	Yes	http://rec-law.us/xHsBHH
36	2/26/2012	Keystone Ski Area	24			Yes	http://rec-law.us/y4CANi
37	2/23/2012	Northstar California	52			Yes	http://rec-law.us/zgqcTZ
38	3/1/2012	Burke Mountain Ski Resort	70			Yes	http://rec-law.us/xOjOY7
39	3/8/2012	Copper Mountain	18		Skier	Yes	http://rec-law.us/xotYaO
40	3/9/2012	Keystone Ski Area	23		Skier	No	http://rec-law.us/xJ2THl
41	3/10/2012	Terry Peak Ski Area	54		Skier		http://rec-law.us/ADkQWq
42	3/10/2012	Loveland Ski Area	71		Skier	No	http://rec-law.us/Ajhcko
43	3/14/2012	Crested Butte Mountain Resort	36		Skier	No	http://rec-law.us/w3lbdr
44	3/16/2012	Northstar California	51		Skier	Yes	http://rec-law.us/FQM5hK
45	3/18/2012	China Peak Ski Resort	30		Boarder		http://rec-law.us/FQ2kwq
46	3/18/2012	Sierra-at-Tahoe	54		Skier		http://rec-law.us/FVYq4q
47	3/19/2012	Sugar Bowl Ski Resort	20		Boarder		http://rec-law.us/GAucKe

What do you think? Leave a comment.

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Skier carving a turn off piste (Photo credit: Wikipedia)

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LaFond v. Salomon North America, Inc. et al., 2011 Mass. Super. LEXIS 344

Posted: March 25, 2012 | Author: Recreation Law | Filed under: Legal Case, Massachusetts, Skiing / Snow Boarding | Tags: Jurisdiction, Massachusetts, Personal jurisdiction, Salomon, Salomon SAS, Ski binding, skiing, United States, Venue | Leave a comment

Gary LaFond v. Salomon North America, Inc. et al.1

1 Amer Sports Winter & Outdoor Company, and Salomon S.A.

Opinion No.: 118812, Docket Number: SUCV2008-01383

SUPERIOR COURT OF MASSACHUSETTS, AT SUFFOLK

2011 Mass. Super. LEXIS 344

December 19, 2011, Decided

December 20, 2011, File

JUDGES: [*1] Elizabeth M. Fahey, Justice of the Superior Court.

OPINION BY: Elizabeth M. Fahey

OPINION

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT SALOMON S.A.’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

The plaintiff, Gary LaFond (“LaFond”), was injured when one of his ski bindings broke while he was skiing in Utah. LaFond brought this action against Salomon North America, Inc., Amer Sports Winter & Outdoor Company (“ASWO”), and Salomon S.A., asserting claims of negligence, breach of implied warranty of merchantability, and violation of G.L.c. 93A. The action is now before the court on Salomon, SA’s motion to dismiss for lack of personal jurisdiction. For the following reasons, the motion is DENIED.

BACKGROUND

The following relevant jurisdictional facts are taken from the materials before the court. LaFond is a resident of Massachusetts. Salomon S.A. is a French corporation with its principal place of business in Annecy, France.2 According to the declaration of the senior legal counsel for Salomon S.A.’s European legal department, Laurence Grollier (“Grollier”), Salomon S.A. does not maintain an office, employees, agents, or real property in Massachusetts. It distributes its Salomon-branded products in the [*2] United States through a single entity, ASWO, which submits orders to Salomon S.A. in France. Salomon S.A. then ships the products to AWSO in Ogden, Utah, but it has no further involvement or control over the resale and distribution of the shipped products. Salomon S.A. has not entered into any contracts to perform services in Massachusetts.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

2 The corporation states that LaFond has mistakenly referred to it as Salomon S.A., whereas its title should be Salomon S.A.S. Given that the corporation has been entered into the court’s docket as Salomon S.A., the court will use that title.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Salomon S.A. has not visited Massachusetts to market, promote, or solicit sales of its products, including the binding that allegedly caused LaFond’s injury. Salomon S.A. does maintain a website, http://www.salomon.com (“Website”), which is accessible (presumably all the time) in Massachusetts. The Website includes information on Salomon products, but U.S. consumers may not purchase such products directly through the Website. If a consumer wishes to purchase a Salomon product, however, the Website includes a search function whereby said consumer can locate area retail stores that sell Salomon-branded products. Counsel [*3] for LaFond avers in an affidavit that she conducted such a search on the website and located fifty-six Massachusetts retailers that sell Salomon products.

In June 2004, LaFond accessed the Website and researched different Salomon alpine ski bindings. Based in part on the information the Website provided, LaFond decided to buy Salomon 912Ti alpine ski bindings. Knowing that Bob Smith’s Wilderness House (“Wilderness House”) sold Salomon products at its Boston location, he visited that store to buy the Salomon 912Ti bindings, doing so in June 2004.

LaFond alleges that he was skiing in Alta, Utah on January 20, 2007, when the heel plate of his left ski binding broke, causing him to fall and injure himself seriously. Upon returning to Massachusetts, LaFond brought the defective binding back to Wilderness House, reported his January 20, 2007 accident to the store, and requested that the defective binding be replaced with a new Salomon binding. The materials before the court indicate that a new binding was shipped to Wilderness House, but it is not clear who shipped the binding.

DISCUSSION

HN1Go to this Headnote in the case.In order for a Massachusetts court to exercise personal jurisdiction over a non-resident defendant, the [*4] defendant’s conduct must fall within the limits of the Massachusetts long-arm statute, G.L.c. 223A, §3(a)-(h). See Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979). In addition, the exercise of personal jurisdiction must comply with the due process requirements of the U.S. Constitution. See id. at 5-6. These two parts often converge into a single inquiry, because G.L.c. 223A “functions as ‘an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States.'” Id. at 6, quoting “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 361 Mass. 441, 443, 280 N.E.2d 423 (1972).

HN2Go to this Headnote in the case.When confronted with a motion to dismiss under Mass.R.Civ.P. 12(b)(2), the plaintiff bears the burden of establishing facts sufficient to show that the Massachusetts’ court has personal jurisdiction over the defendant. See Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151, 376 N.E.2d 548 (1978). The court views the jurisdictional facts in the light most favorable to the plaintiff. See Cepeda v. Kass, 62 Mass.App.Ct. 732, 738, 819 N.E.2d 979 (2004). Nevertheless, the court does not have to “credit conclusory allegations or draw farfetched inferences.” Workgroup Tech. Corp. v. MGM Grand Hotel, LLC, 246 F.Sup.2d 102, 108 (D.Mass. 2003) [*5] (citations omitted).

I. Long-Arm Statute

LaFond argues that this court may exercise personal jurisdiction over Salomon S.A. based on three provisions of the long-arm statute, G.L.c. 223A, §3(a), (b), and (f). Because this court finds that jurisdiction is appropriate under G.L.c. 223A, §3(a), it will not address the other provisions.

A. G.L.c. 223A, §3(a

HN3Go to this Headnote in the case.”A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s (a) transacting any business in this commonwealth . . .” G.L.c. 223A, §3(a). The “transacting any business” language is construed broadly. See Tatro v. Manor Care, Inc., 416 Mass. 763, 767, 625 N.E.2d 549 (1994). “Although an isolated (and minor) transaction with a Massachusetts resident may be insufficient, generally the purposeful and successful solicitation of business from residents of the Commonwealth, by a defendant or its agent, will suffice to satisfy this requirement.” Id.

This court concludes that Salomon S.A. has engaged in such purposeful and successful solicitation of business from Massachusetts residents via the Website.3 The Website is not merely a passive instrument that only presents [*6] information about Salomon products. See McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir. 2005) (“[T]he mere existence of a website that is visible in a forum and that gives information about a company and its products is not enough, by itself, to subject a defendant to personal jurisdiction in that forum”); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Sup. 1119, 1124 (W.D.Pa. 1997) (“A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction”). Rather, it explicitly solicits business from Massachusetts residents by directing them to Massachusetts’ retailers that sell Salomon products.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

3 It appears that the question of whether a website may confer specific personal jurisdiction over a defendant pursuant to G.L.c. 223A, §3(a) is one of first impression in Massachusetts state courts. The parties did not cite, and this court could not find any Supreme Judicial Court or Appeals Court case addressing the question. This court considered reporting to the Appeals Court the correctness of its decision regarding personal jurisdiction over Salomon S.A., but, after thoroughly examining the relevant [*7] facts and law, ultimately decided not to do so

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

By thus soliciting business, Salomon S.A. purposefully targets Massachusetts’ residents through the Website. Compare Comer v. Comer, 295 F. Supp. 2d 201, 209-10 (D.Mass. 2003) (no personal jurisdiction over defendant pursuant to G.L.c. 223A, §3(a) where “website is ‘passive’—i.e., it only posts information for those who are interested and, admittedly, makes no mention of any ties to Massachusetts”); Berry v. Cook, 2011 WL 5841768 at *4 (Mass.Super. 2011) [29 Mass. L. Rptr. 97] (advertisement of vacation home through website does not confer personal jurisdiction pursuant to G.L.c. 223A, §3(a) where no evidence that website specifically targeted Massachusetts residents). Cf. Roberts v. Legendary Marine Sales, 447 Mass. 860, 864-65, 857 N.E.2d 1089 (2006) (no personal jurisdiction over defendant pursuant to G.L.c. 223A, §3(d) where website only provided information and did not solicit business in Massachusetts). Accordingly, Salomon S.A. transacts business in Massachusetts.

Further, LaFond’s claims against Salomon S.A. arise out of this business where he stated in an affidavit that he purchased the binding at issue in part based on research he conducted on the [*8] Website. See Tatro, 416 Mass. at 771 (construing §3(a)’s “arising from” language as broadly as “transacting business” language, and holding that “a claim arises from a defendant’s transaction of business in the forum State if the claim was made possible by, or lies in the wake of, the transaction of business in the forum State” (citation omitted)).

The literal requirements of the long-arm statute have therefore been satisfied.

II. Due Process

HN4Go to this Headnote in the case.In addition to fulfilling the statutory requirement of G.L.c. 223A, §3, an assertion of personal jurisdiction over the defendant must also comply with the due process requirements of the United States Constitution. See Good Hope Indus., Inc., 378 Mass. at 5-6. Due process requires that the non-resident defendant have “some minimum contact with the Commonwealth which resulted from an affirmative, intentional act of the defendant, such that it is fair and reasonable to require the defendant to come into the State to defend the action.” Id. at 7. In determining whether the exercise of specific jurisdiction comports with due process, the court must first examine whether “the defendant purposely avails itself of the privilege of conducting activities [*9] in the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). The lawsuit must also arise from or relate to the defendant’s specific conduct in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). Finally, the court may not exercise personal jurisdiction over the defendant under circumstances “that would offend ‘traditional notions of fair play and substantial justice.'” Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945).

A. Purposeful Availment

As discussed above, via the website, Salomon specifically targets Massachusetts’ residents and solicits their business. The evidence before this court also indicates that Salomon S.A. fulfills orders it receives from ASWO, the sole distributor of Salomon products in the United States, which then distributes those products to retailers in various states, including Massachusetts. Salomon S.A. lists fifty-six Massachusetts retailers on the Website, and it has clearly not instructed ASWO to refrain from distributing Salomon products to Massachusetts. As such, viewing the facts [*10] in the light most favorable to LaFond, Salomon S.A. purposefully avails itself of the benefits of doing business in Massachusetts by placing its products in the stream of commerce with the intention of reaching consumers, including consumers in Massachusetts.

As the United States District Court in Massachusetts has stated, HN5Go to this Headnote in the case.the purposeful availment “requirement goes beyond simple ‘foreseeability’ to ensure that only those defendants that willingly and purposefully avail themselves of the benefits of a state will be brought to court there.” Hasbro, Inc. v. Clue Computing, Inc., 994 F.Sup. 34, 44-45 (D.Mass. 1997) (personal jurisdiction over defendant complied with due process where it directed its advertising website to all states, doing nothing to avoid Massachusetts); see also Gather, Inc. v. Gatheroo, LLC, 443 F.Sup.2d 108, 117-18 (D.Mass. 2006) (distinguishing case where defendant prohibited sales in forum state and noting that “[n]o such limitation is found in Gatheroo’s [web]site”). Compare Accutest Corp. v. Accu Test Sys., Inc., 532 F.Sup. 416, 420 (D.Mass. 1982) (no personal jurisdiction where, “by instructing its underwriters not to sell stock in Massachusetts, defendant seems [*11] to have purposefully sought to avoid activity in this forum”). Salomon S.A.’s contacts with Massachusetts comply with this requirement.

B. Relatedness

This court has already concluded that LaFond’s claims against Salomon S.A. arise from the latter’s contacts with Massachusetts, so this due process requirement is fulfilled. See Back Bay Farm, LLC v. Collucio, 230 F.Sup.2d 176, 186 (D.Mass. 2002) (“Here, as the court has already determined, Plaintiff’s claim arises from Defendant’s Massachusetts activity. The relatedness element has thus been met”).

C. Fair Play and Substantial Justice

HN6Go to this Headnote in the case.In determining whether its exercise of personal jurisdiction over a defendant constitutes fair play and substantial justice, a court examines the following factors: “(1) the burden on the defendant in appearing; (2) the interest of the forum state in adjudicating the dispute; (3) the interest of the plaintiff in obtaining convenient and effective relief: (4) the interest of the judicial system in obtaining the most effective resolution of the controversy; and (5) the interests common to all sovereigns in promoting substantive social policies.” Back Bay Farm, LLC, 230 F.Sup.2d at 187.

HN7Go to this Headnote in the case.As for the first factor, [*12] it “is only meaningful where a party can demonstrate some kind of special or unusual burden.” Hasbro, Inc., 994 F.Sup. at 45, quoting Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994). While Salomon S.A. claims that because it is a French company with no office or personnel located in Massachusetts, having to defend itself in Massachusetts would put it at a severe disadvantage, it does not differentiate itself from any other alien corporation with no presence in the forum state.4 As such, Salomon S.A. has not shown any special or unusual burden, and the first factor holds no significance.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

4 Additionally, the case Salomon S.A. cites to support its assertion that its status as a French company with no Massachusetts presence provides a basis to deny personal jurisdiction is not a personal jurisdiction case. Rather, the case, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972), deals with a forum selection clause in a contract between the parties.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The court finds that the next four factors weigh in favor of this court asserting personal jurisdiction over Salomon S.A. First, Massachusetts clearly has an interest in adjudicating the claims of one of its residents injured by a product sold [*13] in Massachusetts and provided by a company that specifically solicits Massachusetts business. Second, as the United States District Court in Massachusetts has recognized, “[t]he average consumer who is injured by a defective product generally lacks the resources necessary to enable him to prosecute his claim effectively against the manufacturer who is situated in a distant jurisdiction.” Mark v. Obear & Sons, Inc., 313 F.Sup. 373, 376 (D.Mass. 1970). This is especially true here where Salomon S.A. is located in a distant foreign country. Third, because witnesses, medical records, documents, and other evidence in this case are likely scattered among Utah (where LaFond’s accident occurred), Massachusetts (where LaFond resides and where the binding was sold), and France (presumably where Salomon S.A. designed and manufactured the binding), Massachusetts is as effective a forum location as Utah or France. Similarly, while Massachusetts and France both have an interest in promoting substantive social policies, Massachusetts’ interest is stronger here given the facts of this case.

Finally, this court notes that failing to assert personal jurisdiction over Salomon S.A. in this case would in [*14] fact not comply with traditional notions of fair play and substantial justice. This court declines to permit “a manufacturer such as [Salomon S.A.] whose plant is a great distance from the State where it causes its products to be marketed . . . as a practical matter [to] insulate itself against suits by injured consumers by the simple expedient of [providing] its products through an independent distributor.” Mark, 313 F.Sup. at 376.

ORDER

Based on the foregoing, it is hereby ORDERED that Salomon S.A.’s motion to dismiss for lack of personal jurisdiction is DENIED.

Elizabeth M. Fahey

Justice of the Superior Court

Dated: December 19, 2011

Every time someone comes to your business or every time they sign up again they should sign a release. This time it got rid of a major problem.

Posted: March 19, 2012 | Author: Recreation Law | Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area | Tags: Adhesion Contract, Exculpatory Agreement, Federal Rules of Civil Procedure, Injury, Mountain Creek, Plaintiff, Pre-injury Release, Release, ski area, skiing, Summary judgment, Unconscionability | Leave a comment

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Releases work for future injuries and for injuries that may have all ready occurred.

This is a case where as part of the employment at a ski area, the family of the employee was able to get season passes. A requirement for the season pass was to sign a release.

In this case, the plaintiff was injured skiing on a season pass issued to the family member of an employee. The plaintiff sued the ski resort for his injuries. After the lawsuit had commenced but before trial, the plaintiff got another season pass and signed another release. The second release language was sufficient to stop the lawsuit.

The release was called a post injury release now because it stopped a lawsuit after the injury. Normally, I discuss pre-injury releases. Pre-Injury releases are releases that are signed in case someone is injured in a negligent manner.

Summary of the case

After it was discovered the plaintiff had signed a second release, the defense moved to amend their answer and filed a motion for summary judgment. The trial court granted the motion to amend and add the defense of release and accord and satisfaction. The plaintiff appealed.

“Release” is an affirmative defense. An affirmative defense is one that must be plead immediately in the answer of the defendant or the defense is waived. Release as a defense means that the parties have executed an agreement that releases the defendant from any claims.

“Accord and Satisfaction” are also an affirmative defense. Accord and Satisfaction means the party have come to an agreement, an accord and resolved their differences to the satisfaction of all parties.

The plaintiff argued that the post injury release was unconscionable. The contract should not be enforced because of:

“….inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.”

An unconscionable contract or a contract of adhesion is one that the terms were offered on a take or leave it basis the terms are unjust to the point the court cannot allow the contract to stand. The contract must be so bad as to shock the conscience of the court. However, the contract cannot just be bad to one party.

Here, there are several factors that would not make the contract unconscionable. The contract is not for a necessary service. The services could be received from the same party in other ways. (Instead of signing a release and getting a season pass, the plaintiff could have purchased daily lift tickets and not signed a release.) The services were available from other providers.

The court found there were no coercion, duress, fraud or “sharp practices” by the defendant. The agreement did not change the duty of care nor did it “incentivize negligence.” Each of the contracting parties gained or gave away something of value.

So Now What?

Here the defendant was lucky. The plaintiff unknowingly signed a release to get his season pass that had the language necessary to stop a claim that had already occurred. There are two important points to bring up from this case.

1 Make sure your release has language to top future claims and past claims.

2. Every single time have every single-person sign a release. Get a new season pass, you sign the release again. Go rafting again, you sign the release. Buy another widget sign the release.

You just never know when a release from the future may stop a claim from the past.

What do you think? Leave a comment.

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Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Posted: March 19, 2012 | Author: Recreation Law | Filed under: Legal Case, Release (pre-injury contract not to sue), Ski Area | Tags: Adhesion Contract, Appeal, Defendant, Exculpatory Agreement, Law Division, Mountain Creek, New Jersey Superior Court, Pre-injury Release, Release, ski area, skiing, Summary judgment, Unpub | Leave a comment

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Derek Dearnley and Vicky Dearnley, his wife, Plaintiffs-Appellants, v. Mountain Creek, its agents, servants and employees, Defendant-Respondent.

Docket no. A-5517-10T1

Superior Court of New Jersey, Appellate Division

2012 N.J. Super. Unpub. LEXIS 527

February 29, 2012, Argued

March 12, 2012, Decided

Notice: not for publication without the approval of the appellate division.

Please consult new jersey rule 1:36-3 for citation of unpublished opinions.

Prior History: [*1]

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-540-09.

CORE TERMS: season, summary judgment, ski area, unconscionability, unconscionable, affirmative defenses, resort, Law Division, contract of adhesion, exculpatory provisions, releasor’s, surgery, ski, pass holder, bold, tort liability, de novo, contracting party’s, public policy, sliding scale, unenforceable, snowboarding, exculpatory, non-moving, favorable, equitable, adhesion, binding, bargain, quod

COUNSEL: Evan D. Baker argued the cause for appellants (Law Offices of Rosemarie Arnold, attorneys; Mr. Baker, of counsel and on the brief).

Samuel J. McNulty argued the cause for respondent (Hueston McNulty, P.C., attorneys; Mr. McNulty, of counsel and on the brief; John F. Gaffney and Stephen H. Shaw on the brief).

JUDGES: Before Judges Harris and Koblitz.

OPINION

PER CURIAM

Plaintiffs Derek Dearnley and Vicky Dearnley appeal from the June 16, 2011, summary judgment dismissal of their six-count complaint. Plaintiffs sought tort remedies for injuries suffered by Mr. Dearnley while snowboarding at defendant Mountain Creek Resort, Inc.’s ski area in Vernon. We affirm.

I.¹

1 This appeal arises from the motion court’s grant of summary judgment in defendant’s favor. Accordingly, we present the evidence in the light most favorable to plaintiffs. See Durand v. The Nutley Sun, N.J. , (2012) (slip op. at 3 n.1) (citing G.D. v. Kenny, 205 N.J. 275, 304 (2011) (citations omitted); R. 4:46-2(c)).

Between 1998 and 2010, Mrs. Dearnley was employed by defendant in its retail department. As part of her compensation benefits, [*2] she and her family members were entitled to apply for, and obtain, a free season pass to use defendant’s facilities at its Vernon ski resort. On November 25, 2008, because her husband desired to take advantage of this benefit for the 2008-2009 winter season, Mrs. Dearnley applied for, and obtained, the pass. She signed, on his behalf, a document entitled, “Season Pass Contract, Student Ski & Ride Voucher Program, Rules and Conditions of Sale, Release of Liability and Indemnity Agreement” (the 2008 agreement). The 2008 agreement contained exculpatory provisions purporting to release tort claims before they occurred. For example, the pass holder “fully release[d] Mountain Creek FROM ANY AND ALL LIABILITY for personal injury, death or property damage arising out of or resulting from [the pass holder’s] participation in this sport, MOUNTAIN CREEK’S NEGLIGENCE, conditions on or about the premises and facilities or the operations of the ski area” (capitalization in the original). The outcome of this appeal, however, does not turn on this language.

On January 4, 2009, Mr. Dearnley was snowboarding at the Mountain Creek ski area when he suffered an accident that he attributes to defendant’s [*3] negligence and breach of its duties under N.J.S.A. 5:13-1 to -11 (the Ski Act). As a result of the accident, Mr. Dearnley incurred serious injuries, which required immediate emergency surgery to stabilize his back by the implantation of metal rods and screws. According to his answers to interrogatories, Mr. Dearnley ultimately spent approximately six weeks in the hospital, had to endure three surgeries, and underwent weeks of physical therapy and rehabilitation.

On October 13, 2009, plaintiffs filed their personal injury and per quod complaint against defendant in the Law Division, Sussex Vicinage. Defendant’s answer listed ten affirmative defenses, but did not assert that the 2008 agreement’s exculpatory provisions barred the action.

Two months later, on December 21, 2009, while his wife was still employed by defendant, Mr. Dearnley applied for a season pass for the 2009-2010 winter season. He was presented with, and signed, a two-page document entitled, “Mountain Creek Resort, Inc. 2009-’10 Season Pass Wavier” (the 2009 agreement). In bold, capitalized print at the top of the first page, the 2009 agreement stated, “RELEASE, WARNINGS AND DISCLAIMERS ON SKIING.”

At the top of the second [*4] page, to which Mr. Dearnley affixed his signature, the following appeared in bold typeface:

I FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST MOUNTAIN CREEK RESORT, INC. THIS RELEASES ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE AND THOSE NOT MENTIONED IN THIS RELEASE. THIS RELEASE APPLIES TO CLAIMS RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.

The 2009 agreement also stated in bold typeface: “I AM AWARE THAT THIS CONTRACT IS LEGALLY BINDING AND THAT I AM RELEASING LEGAL RIGHTS BY SIGNING IT.”

During discovery, the 2008 and 2009 agreements were exchanged between the parties’ attorneys. Upon the realization of what Mr. Dearnley had signed, plaintiffs filed a motion “for an Order barring the affirmative defenses related to two adhesion contracts.” Defendant filed a cross-motion seeking (1) summary judgment, (2) permission to file an amended answer, and (3) denial of plaintiffs’ motion.

On April 29, 2011, Judge Edward V. Gannon heard oral argument. The judge granted defendant’s motion to amend its answer to permit the pleading of (1) release and (2) accord and satisfaction as affirmative defenses. The judge noted that the 2009 agreement [*5] was executed after both the filing of plaintiffs’ complaint and defendant’s answer, and therefore could not have been contemplated by the first exchange of pleadings. Reciprocally, he denied plaintiff’s motion to bar the affirmative defenses. Finally, he reserved decision on what he called “a matter of first impression with regard to this particular type of release.”

On June 16, 2011, Judge Gannon entered an order granting summary judgment dismissing plaintiffs’ complaint with prejudice. He explained his decision in a thorough ten-page statement of reasons, taking pains to carefully explicate the two agreements and then analyze them under the lens of applicable law. This appeal ensued.

II.

Orders granting summary judgment pursuant to Rule 4:46-2 are reviewed de novo, and we apply the same legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). In performing our appellate function we consider, as did the motion court, “‘whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in [*6] favor of the non-moving party.'” Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J. Super. 317, 327 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. granted, N.J. (Jan. 24, 2012).

Similarly, when the legal conclusions of a motion court’s Rule 4:46-2 summary judgment decision are reviewed on appeal, “‘[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]’ and, hence, an ‘issue of law is subject to de novo plenary appellate review.'” Estate of Hanges v. Metro. Prop. Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)).

Judge Gannon dismissed plaintiffs’ claims based upon the release contained in the 2009 agreement, which was personally executed by Mr. Dearnley months after his injuries and surgeries, months after he hired a lawyer, and months after he filed suit. From our review of the undisputed factual record, we are satisfied that this case does not present any novel or first impression issues. Rather, it revolves around an ordinary release —- not exculpatory —- clause and is governed [*7] by familiar principles of contract interpretation. As Judge Gannon stated,

Invalidating the agreed upon waiver would signal judicial mistrust of our citizen’s ability to intelligently enter contracts, in which benefits derive from the assumptions of burdens. In this case, Mr. Dearnley surrendered his right to maintain this suit in exchange for the benefits afforded to season pass holders. A contracting party’s assumption of a substantial burden is no basis for interfering with our citizens’ right to freely contract.

We affirm substantially for the reasons expressed by Judge Gannon, and add only the following brief comments.

Plaintiffs condemn the 2009 agreement as a contract of adhesion, fraught with unconscionabilty, and contrary to public policy. We emphasize that our review is limited to the 2009 agreement, not the 2008 agreement. We are not concerned with defendant’s efforts to exculpate itself from tort liability before an invitee becomes injured at its ski area. Instead, we parse Mr. Dearnley’s release of a claim after it allegedly accrued.

We begin our analysis of the enforceability of the release contained in the 2009 agreement with recognition of the deep-seated principle that [*8] contracts will be enforced as written. Vasquez v. Glassboro Serv. Ass’n, Inc., 83 N.J. 86, 98-100 (1980). Ordinarily, courts will not rewrite contracts to favor a party, for the purpose of giving that party a better bargain. Relief is not available merely because enforcement of the contract causes oppression, improvidence, or unprofitability, or because it produces hardship to one of the parties. Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 (2005). A court cannot “‘abrogate the terms of a contract unless there is a settled equitable principle, such as fraud, mistake, or accident, allowing for such intervention.'” Id. at 223-24 (quoting Dunkin’ Donuts of America, Inc. v. Middletown Donut Corp., 100 N.J. 166, 183-84 (1985)).

Rational personal and economic behavior in the modern post-industrial world is only possible if agreements between parties are respected. The reasonable expectations created by mutual assent ought to receive the protection of the law and courts should not be encouraged to fashion a better arrangement for a party because of a gaffe to which the other party is not privy. In other words, avoidance of a contract is a very stern [*9] remedy that requires clear evidence demonstrating that the consequences of the mistake are so grave that enforcement of the contract would be unconscionable. That formidable threshold has not been surmounted here.

Notwithstanding the foregoing, a contract provision that is procedurally and substantively unconscionable can be set aside. See Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). “[P]rocedural unconscionability . . . ‘can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process[.]'” Ibid. (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564-66 (Ch. Div. 2002). A contract of adhesion, presented by the drafting party to the other party on a take-it-or-leave-it basis, as here, typically involves “some characteristics of procedural unconscionability[.]” Id. at 16. The determination “that a contract is one of adhesion, however, ‘is the beginning, not the end, of the inquiry’ into whether a contract, or any specific term therein, [*10] should be deemed unenforceable based on policy considerations.” Id. at 28 (citing Rudbart v. N. Jersey Dist. Water Supply Comm., 127 N.J. 344 (1992)).

Substantive unconscionability essentially refers to the inclusion within a contract of “harsh or unfair one-sided terms.” Id. at 15 (citing Sitogum, supra, 352 N.J. Super. at 564-66). It is also described as “‘the exchange of obligations so one-sided as to shock the court’s conscience.'” B & S Ltd., Inc. v. Elephant & Castle Intern., Inc., 388 N.J. Super. 160, 176 (Ch. Div. 2006)(quoting Sitogum, supra, 352 N.J. Super. at 565).

Generally, courts must undertake “a careful fact sensitive examination into [claims of] substantive unconscionability.” Id. at 16 (footnote omitted). “When making the determination that a contract of adhesion is unconscionable and unenforceable, we consider, using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).

The release provisions of the 2009 agreement are not the analytical equivalent of its exculpatory provisions. “The law does not favor exculpatory [*11] agreements because they encourage a lack of care.” Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247 (App. Div. 2004). For that reason, courts closely scrutinize attempts to contract in advance to release tort liability. “‘[C]ourts have not hesitated to strike limited liability clauses that are unconscionable or in violation of public policy.'” Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2004) (quoting Lucier v. Williams, 366 N.J. Super. 485, 491 (App. Div. 2004)).

The subject release does not call forth any of the foregoing concerns. Mr. Dearnley’s 2009 agreement with defendant neither eroded defendant’s duty of care nor did it incentivize negligence. Each of the contracting parties gained or gave away something of value. There was no coercion, duress, fraud, or sharp practices afoot. Public policy is not offended by requiring a non-incapacitated adult to honor the type of promise given here. See Raroha v. Earle Fin. Corp., 47 N.J. 229, 234 (1966) (holding that in the absence of fraud, misrepresentation or overreaching by the releasee, in the absence of a showing that the releasor was suffering from an incapacity affecting his ability to understand the meaning of [*12] the release and in the absence of any other equitable ground, it is the law of this State that the release is binding and that the releasor will be held to the terms of the bargain he willingly and knowingly entered).

Judge Gannon properly calibrated the “sliding scale” of our unconscionabilty jurisprudence and correctly determined that the 2009 agreement’s release was enforceable. Mr. Dearnley’s releasor’s remorse is an insufficient basis to return this matter to the Law Division for trial.²

2 Mrs. Dearnley’s claims are entirely derivative of her husband’s and consequently her per quod action must fall in the wake of Mr. Dearnley’s release. See Ryan v. Renny, 203 N.J. 37, 62 n.1 (2011) (noting that “the viability of [that claim] is subject to the survival of [her husband]’s claim” (quoting Sciarrotta v. Global Spectrum, 194 N.J. 345, 350 n.3 (2008)).)

Affirmed.

CSCUSA PR reminds people to be safe

Posted: March 13, 2012 | Author: Recreation Law | Filed under: Avalanche, Colorado, Ski Area | Tags: #Avalanche, #Safety, CAIC, Colorado, CSCUSA, Loveland Ski Area, Resort, Ski, ski area, skiing | Leave a comment

Colorado Ski Country USA Reminds Skiers & Snowboarders to be Safe on the Slopes

Resorts Emphasize Safe Skiing, Prepare for Busy Holiday

Aspen Highlands, Michael Neumann

DENVER, Colo. – February 17, 2012– Colorado Ski Country USA (CSCUSA) and its 22 member resorts remind skiers and snowboarders to practice safe skiing and riding, know and follow Your Responsibility Code, be aware of surroundings and obey terrain closures.

“Guest safety is always the number one priority of our members,” explained Melanie Mills, CSCUSA president and CEO. “President’s Day weekend is a popular time to go skiing, and our resorts are doing absolutely everything they can to make sure guests are safe and have an enjoyable time on the slopes during this busy weekend.”

Individual skier and snowboarder responsibility is the foundation for safe skiing. Loveland Ski Area assistant patrol director and CSCUSA Ski Patroller of the Year, Joey Riefenberg, stresses the importance of being aware of your surroundings, “Skiers and snowboarders need to be proactive about safety, pay attention to who is skiing around you and always look downhill. Go slow and give yourself time to stop. Know that little kids are out and about and need a wide berth, watch where the flows are.”

CSCUSA member resorts across the state are taking extra measures to provide safe skiing environments, including constantly reassessing conditions. “Resorts are working super hard to make sure it’s safe. Everyone is super conscientious of that, and the snowpack,” said Riefenberg. “It’s a funny snowpack this year, really odd, and resorts are on alert, busy knocking all the air out of the snowpack and making sure everything is safe.”

Skiers and snowboarders are also reminded to obey all signage and be especially alert to obeying terrain closures. As snow continues to fall in Ski Country, resorts will open more terrain as conditions safely allow. “We’d love to open everything but things are closed for a reason, because it’s unsafe for you and unsafe for those who have to rescue you,” Riefenberg explained. “Nothing is being saved, we want everyone to have fun, but be safe doing it.”
Ultimately, it is the responsible behavior of skiers and riders that make the slopes safe. Knowing the nationally recognized Your Responsibility Code is crucial to skier and rider responsibility. Referred to simply as The Code, it is comprised of seven principles that collectively outline on-mountain skier etiquette and safe skiing practices.

Responsibilities within The Code include:

Image via Wikipedia

Always stay in control, and be able to stop or avoid other people or objects.
People ahead of you have the right of way. It is your responsibility to avoid them.
You must not stop where you obstruct a trail, or are not visible from above.
Whenever starting downhill or merging into a trail, look uphill and yield to others.
Always use devices to help prevent runaway equipment.
Observe all posted signs and warnings. Keep off closed trails and out of closed areas.
Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

CSCUSA also reminds skiers, snowboarders and other snowsports enthusiasts heading into the backcountry to check with the Colorado Avalanche Information Center (CAIC) on the magnitude and nature of avalanche hazard they may encounter, do not venture out alone, and have proper equipment and education for the conditions. “Backcountry avalanche danger right now is considerable,” states Ethan Greene, director of CAIC. “With the holiday weekend there’s going to be powder snow and nice weather, but don’t be fooled that the hazard is anything less than very serious.”

More information on backcountry conditions can be found at the CAIC website, www.avalanche.state.co.us or by calling 303-499-9650.

New study suggests that North American Avalanche survival time is half what was previously thought

Posted: March 7, 2012 | Author: Recreation Law | Filed under: Avalanche | Tags: avalanche, Avalanche Study, Burial Time, Canada, Canadian Medical Association Journal, Haegeli, Pascal Haegeli, Recreation, Ski, Survival, Survival Time, Switzerland, Tree Line | Leave a comment

Ten minute survival in western wet snow is shown by the study.

Dr. Pascal Haegeli, a researcher from Vancouver BC has recently published a study in the Canadian Medical Association Journal titled “Comparison of avalanche survival patterns in Canada and Switzerland.” There are several notable things to take away from this study.

1. The survival time for a victim in an avalanche has been 18 minutes based on a study done in Switzerland in 1998. (Falk M, Brugger H, Adler-Kastner L. Avalanche survival chances. Nature 1994;368:21.) This 1998 study is not being dismissed. Differences between the types of snow, terrain, etc. are the cause for the discrepancies between the two studies.

This study says that avalanche survival time is probably only Ten (10) minutes.

The Swiss study developed the avalanche survival curve based on the amount of time a person was buried.

The probability of survival remains above 91% during the first 18 minutes of burial (“survival phase”). This phase is followed by a precipitous drop to 34% between 19 and 35 minutes be – cause of asphyxiation of most people (“asphyxia phase”). Between 35 and 90 minutes, the survival curve levels out (“latent phase”) because of the survival of people with patent airways. Thereafter, survival drops again as those buried eventually succumb to lethal hypothermia complicated by progressive hypoxia and hypercapnia.

2. There was no statistical difference between the overall survival rate of the Canadian study (Haegeli) and the Swiss study (Brugger).

…the Canadian survival curve showed lower chances of survival at all burial durations compared with the Swiss survival model, with a quicker drop in survival in the first 35 minutes and poorer survival associated with prolonged burials.

3. Most Swiss avalanches occur above tree line. Most North American avalanches occur below the tree line. Trauma fatalities are significantly greater in North America.

In the Canadian sample, trauma accounted for more than half of the deaths among people extricated in the first 10 minutes (Figure 1), which highlights the strong influence of trauma on the early phases of the survival curve. The probability of survival at the end of the first 10 minutes was 77% in the overall survival curve for Canada, as compared with 86% in the asphyxia-only survival curve.

4. There were statistically different survival chances between different climates in North America. Western (maritime) snow climates had shorter overall survival times. Western snow climates are characterized by wetter, heavier snow.

The survival curves for the transitional and maritime snow climates were characterized by a considerably earlier drop in survival compared with the curve for the continental snow climate.

The study also offered speculation that heavier denser snow prevented chest movement preventing the victim from breathing if buried.

Snow density is defined as the overall mass of snow per unit volume (kilograms per meter cubed). Typical densities of seasonal snow vary from 30 kg/m in dry, newly fallen snow to 600 kg/m in wet spring snow.

These results highlight the importance of prompt extrication by companions, especially in areas with a more maritime snow climate. Although the “survival phase” has commonly been described to be about 18 minutes long, our analysis shows that the first 10 minutes might be a more appropriate general guideline for Canada and other areas with a maritime snow climate.

5. The study recommended that Airbags and Transceivers be used as they offered the best options to speed up rescue.

The use of avalanche airbags to prevent burial and avalanche transceivers to speed up the locations of buried avalanche victims are recommended. Both of these safety devices have been shown to reduce mortality significantly.

The study had numerous interesting facts about avalanche burials.

The two longest burials among survivors in the Canadian sample (120 and 300 minutes) both occurred in urban settings, whereas the maximum burial time among survivors in a remote setting was 55 minutes.

So?

When teaching at Colorado Mountain College in the Ski Area Operations program I tell my students the one thing we know about avalanches to an absolute certainty: Avalanches are made of snow.

For other articles on Avalanches see:

Mountain Magazine should apologize to the families who will soon lose loved ones because of its latest magazine.

Research shows beacons have issues with multivictim searches

Colorado Avalanche Information Center

It’s time to sign up to get the CAIC Avalanche Forecasts

Well written article about the risks of Avalanches and survival with the latest gear.

See this article by Earn Your Turns: Canadian Study reduces Avalanche Survival Time, http://www.earnyourturns.com/9079/avalanche-survival-time-reduced/

What do you think? Leave a comment.

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Costs, when you win a lawsuit you normally can recover your costs

Posted: March 5, 2012 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Tags: Alpine Meadows, California, Outdoors, Recreation, Rock climbing, Ski, Ski Resort, Snowboard, snowboarding | Leave a comment

Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275

Costs do not include attorney fees

This case is a lawsuit by the parents of a 24-year-old girl who died snowboarding. The father, in response to her death founded the California Ski & Snowboard Association (CSSO as set forth by the court and California Ski and Snowboard Safety Organization based on their website). An association allegedly started to make ski areas safer. However, the young girl died out of bounds.

The girl and her friend were hiking out of bounds. On the way, they passed two signs warning people of the dangers. While on the High Beaver Tavers she slipped, slid out of bounds and died.

The girl signed a release before skiing at Alpine Meadows in California. On top of that she was described as an experienced snowboarder.

California Ski & Snowboard Association (CSSO) is an organization that I have written about as a wolf in sheep’s clothing (or maybe it should be skin or wool). Originally, the organization came across as wanting to work with ski areas to make them safer. See Grieving Father starts organization to make skiing safer and California Ski and Snowboard Safety Organization turns out to be a Wolf in Sheep’s Clothing.

Recently, the organization has changed its mission to:

Mission

To promote and support safety improvements in California skiing, snowboarding and recreational snow sports and serve as an independent, factual public resource regarding the safety of California ski resorts.

Vision

A recreational skiing and snowboarding environment in which federal and state governments, health and safety organizations and the ski resort industry are proactively and collaboratively working to establish and maintain the safest possible snow sport environment and experience.

Summary of the case

The plaintiffs sued for Premise’s liability, misrepresentation of the risk, negligence, breach of the season pass agreement, two claims of rescission and declaratory relief.

Rescission is a contract claim that attempts to void the contract and place the parties back in the position they were in prior to the signing of the contract. To win a claim for rescission the party wanting out of the agreement must claim material misstatement of the issues creating the contract, or something akin to fraud or misrepresentation.

The defendants filed a motion for summary judgment based on the release (express assumption of the risk) and primary assumption of the risk. The trial court granted the defendants motion and dismissed the claims of the plaintiff.

As is normal, the defendant then filed a bill of costs. This is a motion to recover their costs they expended in defending the lawsuit. Costs are normally granted to the winning party in a suit.

Costs are the actual money spent for things necessary to defend the suit. In federal court, costs are set out by statute.

Federal Rule of Civil Procedure 54(d)(1)

(1) Fees of the clerk and marshal;

(2) [*5] Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A better way to look at costs is; those things the party wrote a check to, necessary to litigate.

Costs do not include attorney fees. To recover attorney fees, there must be a violation of a state statute that awarded costs, a contract that awards costs or liquidated damages or an action (claim) by one side or the other that is frivolous, groundless and wholly without any legal merit. “Rule 54(d)(1) provides that costs, “other than attorney’s fees shall be allowed as of course to the prevailing party unless the court otherwise directs.”

Costs are up to the discretion of the court. Normally, the court will allow most costs if the costs were specifically part of the trial or litigation. I look at it this way. If the judge saw the results of what you paid for, then that might be costs.

On the other hand, if money was spent on something that only might or did lead to what the judge might see, then probably not allowed as costs.). “If the depositions are for investigatory or for discovery purposes only, rather than for presentation of the case, courts have found that they are not taxable.”

The decision looks at several of the items the trial court allowed as costs. The original order allowing costs was $72,515.36. The court found that only $51,042.76 of the amount should have been allowed.

So Now What?

There are several interesting issues that are just good to know if you run a ski area or any recreation business. The deposition of the father took three days. Part of that deposition concerned the organization he started, California Ski & Snowboard Association (CSSO); however, no matter why, think about losing three days out of the office for deposition and probably another six days preparing for the deposition. Nine days total for something that if you work hard in the beginning, might have been prevented.

The expert witness of the plaintiff testified for two days. That would be an expensive two days. You and/or your insurance company would be paying probably two lawyers to attend the deposition and paying your expert witness to be questioned. Even if you are not having your expert deposed, just an employee, you are paying the employee to be there. Simply put, depositions on one side or the other can easily cost $1000 per hour.

Winning or losing a lawsuit, is an expensive proposition. Usually, the costs awarded by the court are less than 50% of the actual costs spent. Add to that the time incurred to defend a lawsuit, and it is ridiculous.

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Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275

Posted: March 5, 2012 | Author: Recreation Law | Filed under: Legal Case, Ski Area, Skiing / Snow Boarding | Tags: Alpine Meadows, Assumption of risk, California, Federal Rules of Civil Procedure, Out of Bounds, Powdr Corporation, ski Area Fatality, snowboarding, Supreme Court | Leave a comment

Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275

Daniel Gregorie, in his individual capacity and as Successor In Interest to Jessica Gregorie, deceased, and Margaret Gregorie, in her individual capacity and as Successor In Interest to Jessica Gregorie, deceased, Plaintiffs, v. Alpine Meadows Ski Corporation, a California Corporation and Powder Corp., a Delaware Corporation, Defendants.

NO. CIV. S-08-259 LKK/DAD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

2011 U.S. Dist. LEXIS 20275

February 9, 2011, Decided

February 10, 2011, Filed

PRIOR HISTORY: Gregorie v. Alpine Meadows Ski Corp., 405 Fed. Appx. 187, 2010 U.S. App. LEXIS 26328 (9th Cir. Cal., Dec. 7, 2010)

COUNSEL: [*1] For Daniel Gregorie, in his individual capacity and as Successor in Interest to Jessica Gregorie, deceased, Margaret Gregorie, in her individual capacity and as Successor in Interest to Jessica Gregorie, deceased, Plaintiffs: Alisha M. Louie, Melvin D. Honowitz, LEAD ATTORNEYS, Constance J. Yu, Sideman and Bancroft, LLP, San Francisco, CA.

For Alpine Meadows Ski Corporation, a California corporation, POWDR Corporation, a Delaware corporation, Defendants: Jill Haley Penwarden, John E. Fagan, Michael L. Reitzell, Duane Morris LLP, Truckee, CA.

JUDGES: LAWRENCE K. KARLTON, UNITED STATES DISTRICT COURT SENIOR JUDGE.

OPINION BY: LAWRENCE K. KARLTON

OPINION

ORDER

Before the court is defendant’s bill of costs. For the reason described below, the court awards some and denies some costs sought by defendant.

I. BACKGROUND

A. Factual background

Plaintiffs brought an action in wrongful death as the parents and successors in interest of decedent, Jessica Gregorie. Gregorie, a twenty-four year old woman and experienced snowboarder, died while snowboarding at defendant Alpine Meadows Ski Corporation’s (“Alpine Meadows”) ski resort on February 5, 2006. Gregorie had signed a waiver in conjunction with a season pass she purchased from [*2] Alpine Meadows, which provided her agreement to assume all risks of skiing beyond the area boundary, and releasing defendants from liability.

On the date of her death, decedent went snowboarding with her friend Joe Gaffney. Gregorie passed two signs posted at the base of the lift, warning of potential danger. While hiking the “High Beaver Traverse” to reach the “Beaver Bowl” area, Gregorie slipped due to the icy snow conditions. Gregorie was unable to stop, and slid past a large tree with a sign stating “Ski Area Boundary.” A helicopter transported Gregorie to Washoe Medical Center in Reno where she died later that day.

B. Procedural History

Plaintiffs Daniel and Margaret Gregorie commenced this action on February 1, 2008 against Alpine Meadows and Powdr Corporation. In their first and fourth causes of action, plaintiffs alleged premises liability. Their second cause of action alleged misrepresentation of risk of harm. Their third cause of action alleged negligence. Their fifth cause of action alleged breach of the season pass contract entered between Jessica Gregorie and Alpine Meadows. The sixth and eighth causes of action sought recision of that contract on the basis of fraud in the [*3] inducement. The seventh cause of action sought declaratory relief regarding Gregorie’s and defendant’s respective rights and duties under the contract. In addition to declaratory relief, plaintiff’s sought damages, punitive damages, and costs.

On May 29, 2009 defendants moved for summary judgement or adjudication on the basis that the plaintiffs were barred by the doctrines of primary and express assumption of risk and on the basis that Powdr Corporation is not a proper defendant. On August 6, 2009 this court entered an order granting summary judgment as to all causes of action in favor of defendants.

Defendants then submitted a Bill of Costs totaling $72,515.36 on August 7, 2009. Bill of Costs Submitted, Doc. No. 134 (August 14, 2009). Plaintiffs filed objections to the defendants’ Bill of Costs pursuant to Local Rule 54-292(c) and request a hearing.¹ Objections, Doc. No. 136 (Aug. 24, 2009). In response to the objections, defendants withdraw their request for taxation of fees for the Clerk in the amount of $350.00, duplicate fees for invoice costs in the amount of $1,974.98, and fees for service of process to Randall Heiken. Response to Objection, Doc. No. 143, (Sept. 15, 2009). Costs [*4] for service of process to Jack Palladino and the California Ski & Snowboard Association, for the deposition transcript of Jack Palladino, the continued deposition transcript of Stanley Gale (Vol. 2), and the continued deposition transcript of Daniel Gregorie (Vol. 3) remain in dispute. Additionally, costs for the videographic recording of those depositions for which the stenographic transcript will also be taxed remain disputed. These include the depositions of Jack Palladino, Stanley Gale, Daniel Gregorie, Billy Martin, Joe Gaffney, Brian Martinezmoles, and Mike Leake.

1 The court finds that a hearing is not necessary in this matter.

II. ANALYSIS

A. Taxation of Costs Generally

[HN1] Federal Rule of Civil Procedure 54(d)(1) and Eastern District Local Rule 292(f) govern the taxation of costs, other than attorney’s fees, awarded to the prevailing party in a civil matter. The Supreme Court has interpreted Rule 54(d)(1) to require that district courts consider only those costs enumerated in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). Section 1920 provides that

[HN2] [a] judge or clerk of the court may tax the following:

(1) Fees of the clerk and marshal;

(2) [*5] Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

28 U.S.C. § 1920.

[HN3] Rule 54(d)(1) provides that costs, “other than attorney’s fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” Fed R. Civ. P. 54(d)(1). This provision establishes a presumption that costs will be awarded to the prevailing party, but allows the court discretion to decide otherwise. Association of Mexican American Educators v. State of California, 231 F.3d 572, 591-92 (9th Cir. 2000). Courts may also interpret the meaning of the items listed in § 1920. Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 177 (9th Cir. 1990); [*6] BDT Products, Inc. v. Lexmark International Inc., 405 F.3d 415, 419 (6th Cir. 2005). But see In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 459, 461 (4th Cir. 2000) (asserting plenary review of the District Court’s interpretation of Federal Rule of Civil Procedure 54(d)(1)).

[HN4] Courts may deny an award of full costs when they state a sound basis for doing so. Chapman v. AI Transport, 229 F.3d 1012, 1038-39 (11th Cir. 2000). The losing party bears the burden of showing that an award is inequitable under the circumstances. Paoli 221 F.3d at 462-63. Among many factors, a prevailing party’s bad conduct is relevant to the determination of whether or not to tax if such conduct is responsible for excessive costs. Id. at 463.

Here, plaintiffs objects to several items on defendants’ bill of costs. They are addressed in turn.

B. Deposition Transcripts

[HN5] In deciding whether a copy of a deposition is taxable as a cost, the court must determine whether it was “necessarily obtained for use in the case” under 28 U.S.C. § 1920. “The court has great latitude in determining whether an award of deposition costs is warranted.” Allen v. United States Steel Corporation, 665 F.2d 689, 697 (5th Cir. 1982); See [*7] also 10 Wright, Miller, & Kane Federal Practice and Procedure § 2676 (3d ed. & Supp. 2010). If the depositions are for investigatory or for discovery purposes only, rather than for presentation of the case, courts have found that they are not taxable. Wright, Miller, Kane supra, § 2676. Where a motion for summary judgment is granted, “whether [the cost of a deposition] can be taxed is generally determined by deciding whether the deposition reasonably seemed necessary at the time it was taken.” Wright, Miller, Kane supra, § 2676.

i. Deposition of Jack Palladino

Jack Palladino is the family attorney of plaintiff Daniel Gregorie and private investigator to the law firm Siderman & Bancroft, LLP, plaintiffs’ counsel in this action. Objections, Doc. No. 136, at 3 (Aug. 24, 2009). Plaintiffs object to taxation of the costs incurred in the deposition of Palladino, especially for two days. They claim that the deposition was not necessary because of plaintiffs good faith effort to provide investigative reports of Palladino and because much of the testimony is protected by attorney-client privilege. Further, they contend that defendants deposed Palladino as a “fishing expedition and [for] harassment [*8] purposes only.” Id. at 3. The court now determines that under the circumstances, at least in part, the deposition of Palladino was conceivably taken for use in the case.

Although the parties initially disputed whether to conduct this deposition, the defendants withdrew their motion to compel the deposition. This suggests that the parties agreed to the conditions of the deposition which did occur. Motion to Compel, Doc. #64 (May 19, 2009); Withdrawal of Motion to Compel, Doc. #66 (May 21, 2009). In the parties’ Joint Statement Regarding Discovery Disagreement, defendants state that they “believe Mr. Palladino has crucial evidence as to statements made by eyewitnesses very shortly after the accident occurred” and that he has “likely interviewed additional witnesses and conduct [sic.] further inquiry into the facts and circumstances” surrounding the accident. Joint Statement, Doc. No. 65 at 5 (May 19, 2009). This suggests that at least in part the deposition was taken for investigative purposes. It is also true that the Magistrate Judge overruled several of the plaintiffs’ privilege-based objections. Exhibit G to Penwarden Declaration, Doc. No. 151 (Sept. 15, 2009). It is difficult for [*9] the court to parse the circumstances and make a certain judgement as to what percentage of the deposition was reasonably believed to be necessary for trial and what percentage was for other purposes. It appears clear, however, that at least one motivation was to piggyback on Palladino’s investigation. The court determines that one half the cost of the deposition of the stenographically recording of this deposition is taxable.

ii. Continued Deposition of Daniel Gregorie (Vol. 3)

Daniel Gregorie is the plaintiff in this action. Plaintiffs concede that defendants were justified in deposing Daniel Gregorie, but contend that questioning directed to Gregorie in his capacity as founder of the California Ski & Snowboard Association (CSSO), during the second and third days of the deposition, was not warranted. Objections, Doc. No. 136, at 4 (Aug. 24, 2009). However, the Magistrate Judge appears to have ordered Gregorie to answer questions directed to his CSSO activities. Minutes, Doc. #57 (April 3, 2009). The Magistrate Judge apparently found that this line questioning was likely to lead to admissible evidence. While the length appears excessive, the Magistrate Judge’s judgment appears sufficient [*10] to dispose of the issue, and the costs of this deposition will be taxed.

iii. Continued Deposition of Stan Gale (Vol. 2)

Stan Gale was designated by plaintiffs as an expert in ski safety. In their objection, plaintiffs maintain that there was no reasonable basis to depose Stan Gale for the full second day of deposition, during which he was questioned in his capacity as a percipient witness. Objections, Doc. No. 136, at 3, 4 (Aug. 24, 2009).

However, the plaintiffs agreed to the questioning of Mr. Gale in his capacity as a percipient witness at the time of the deposition. Objections, Doc. 136, at 4 (Aug. 24, 2009). The defendants were reasonable in believing that testimony obtained from a percipient witness would produce admissible evidence or information useful in presentation of the case. Therefore, the deposition was reasonably necessary at the time it was taken, and stenographic transcription of the full second day of Mr. Gale’s testimony is taxable.

C. Taxing the costs of both stenography and videography for the same deposition.

[HN6] The Ninth Circuit has not addressed the issue of taxation for both stenographic and videographic costs of the same deposition. Several Circuits have expressly [*11] approved of the practice.² Little v. Mistubishi Motors North America, Inc., 514 F.3d 699, 702 (7th Cir. 2008); BDT Products, Inc. v. Lexmark International Inc., 405 F.3d 415, 420 (6th Cir. 2005); Tilton v. Capital/ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997); Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 465 (11th Cir. 1996). The Tenth and Fourth Circuits have gone further by stating that ordinarily a “stenographic transcript of a videotaped deposition will be necessarily obtained for the case” because the deposing party will be required to provide the transcript in a variety of circumstances. Tilton, 115 F.3d at 1478-79 (internal quotations omitted); Little, 514 F.3d at 702.³

2 Defendants cite an unreported case from the Northern District of California allowing taxation of both stenographic and videographic recording of a deposition. MEMC Electronic Materials, No. C-01-4925 SBA, 2004 U.S. Dist. LEXIS 29359, 2004 WL 5361246, at *5 (N.D. Cal. Oct. 22, 2004). It is worth noting that MEMC Electronic Materials, the losing party had requested that the depositions be videotaped. 2004 U.S. Dist. LEXIS 29359, [WL] at *5.

3 This rationale presumes as valid taxation of the videographic recording in the first place, focusing on the question of stenography [*12] as an additional cost.

In 2008, after the above circuit cases were decided, Congress amended a relevant portion of 28 U.S.C. § 1920. Subsection (2) of the statute, which once allowed taxation of “fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.” [HN7] The statute now allows taxation of simply “fees for printed or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920 (emphasis added). See also EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR, 2010 U.S. Dist. LEXIS 11125, 2010 WL 520564, at *5 (N.D. Iowa Feb. 9, 2010). In Boot, the district court held that the amended language justified taxation of “either stenographic transcription or videotaped depositions-not both.” CRST Van Expedited, Inc., [WL] at *5. The court agrees with the reasoning on Boot, and declines to tax the videotaped depositions.⁴

4 The court notes that there may be some unusual circumstance where both a transcription and a video deposition may be taxed because both are necessary. This case does not present such an exceptional circumstance.

F. Service of Process

[HN8] Fees for service of process are properly taxed under section 1920. Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 177 (9th Cir. 1990). [*13] The district court regularly taxes costs for service of process. Avila v. Willits Environment, No. C 99-03941 SI, 2009 U.S. Dist. LEXIS 130416, 2009 WL 4254367, at *5 (N.D. Cal. Nov. 24, 2009); Campbell v National Passenger R.R. Corp., 718 F. Supp. 2d 1093, 1106-07 (N.D. Cal. 2010). The question is whether these subpoenas were necessary for use in the case.

i. Jack Palladino

According to plaintiffs, the cost of service of process to Jack Palladino should not be taxed because Palladino was voluntarily available for a deposition. Objections, Doc. No. 136, at 5 (Aug. 24, 2009). However, Palladino’s voluntary availability was subject to conditions, limitations, and claims of privilege. Defendant’s point out that the Magistrate Judge ruled that some of these limitations were “baseless.” Exhibit G to Penwarden Declaration, Doc. #151 at 19 (Sept. 15, 2009). The Magistrate Judge’s order requiring the plaintiff to answer questions, which he would not answer voluntarily, is sufficient to support this court’s finding that the cost of service of process was necessary for the defendants’ use in the case. Accordingly this cost will be taxed.

ii. CSSO

Plaintiffs object to the costs for service of process to the California Ski & Snowboard [*14] Association (CSSO), an organization founded by plaintiff, Dr. Daniel Gregorie. Defendants note that Dr. Gregorie refused to answer questions during his deposition about the CSSO, and that counsel invited the defendants to subpoena the CSSO to obtain responses. Bill of Costs Submitted, Doc. No. 143, at 10 (Sept. 15, 2009). Because plaintiffs do not show why service of process pursuant to their own suggestion was unreasonable, this cost will be taxed.

III. CONCLUSION

For the foregoing reasons, the court ORDERS as follows:

(1) Plaintiffs SHALL BE TAXED in the amount of $51,042.76.

(2) Plaintiffs SHALL NOT BE TAXED for the costs of videotaping any depositions, for half the cost of the transcript of Palladino’s deposition, and for the costs withdrawn by defendants.

IT IS SO ORDERED.

DATED: February 9, 2011.

/s/ Lawrence K Karlton

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

Skier/Boarder Fatalities 2011-2012 Ski Season 2/15/12

Posted: February 29, 2012 | Author: Recreation Law | Filed under: Ski Area | Tags: Fatalities, helmet, Rock climbing, Ski, ski area, Ski Resort, skiing, Snowboard, snowboarding, Sport, Sports, Vail Colorado, Winter sport, winter sports | Leave a comment

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

If this information is incorrect or incomplete please let me know. This is up to date as of February 15, 2012. Thanks.

#	Date	Resort	Age	Skier Ability	Ski/ Tele /Boarder	Helmet	Reference
1	11/18/2011	Vail	62		Skier	Yes	http://rec-law.us/rBcn7A
2	11/18/2011	Breckenridge	19	Expert	Boarder	Yes	http://rec-law.us/rBcn7A
3	11/27/2011	Mountain High ski resor	23	Beginner	Boarder	Yes	http://rec-law.us/uGuW17
4	12/18/2011	Sugar Bowl ski resort	7	Expert	Skier		http://rec-law.us/viAqCR
5	1/4/2012	Ski Ward	19	Expert	Skier		http://rec-law.us/y3sOtx
6	1/11/2012	Ski Apache	29		Skier	No	http://rec-law.us/zdfQ4k
7	1/12/2012	Sugarloaf ski resort	41		Skier	Yes	http://rec-law.us/yNHkuc
8	1/14/2012	Silverton Mountain Ski Area	25	Expert	Skier		http://rec-law.us/zcw6MB
9	1/17/2012	Heavenly Mountain Resort	34		Boarder	Yes	http://rec-law.us/yRAXXc
10	1/18/2012	Aspen Highlands	30		Boarder	Yes	http://rec-law.us/wv7vDs
11	1/18/2012	Mt. Hood Meadows Ski Resort	15		Boarder	No	http://rec-law.us/AAnq46
12	1/19/2012	Park City	29		Boarder	Yes	http://rec-law.us/w0k4Pe
13	1/20/2012	Copper Mountain	51			Yes	http://rec-law.us/wD06TR
14	1/20/2012	Whiteface Mountain	25			Yes	http://rec-law.us/wDkcfl
15	1/21/2012	Vail	13	Expert	Skier		http://rec-law.us/xdhVcp
16	1/22/2012	Winter Park	28	Expert	Skier		http://rec-law.us/A0bbt
17	1/24/2012	Steamboat Ski Area	32		Boarder		http://rec-law.us/wF9UFc
18	1/24/2012	Taos Ski Valley	60		Skier		http://rec-law.us/wUl1Vz
19	1/25/2012	Keystone Ski Area	54		Skier		http://rec-law.us/AihrSt
20	1/27/2012	Mt. Hood Skibowl	17		Boarder		http://rec-law.us/zzD3KB
21	1/29/2012	Canyons Ski Resort	19				http://rec-law.us/wcPB7k
22	1/30/2012	Seven Springs Mountain Resort	36		Skier		http://rec-law.us/yOwgDg
27	1/31/2012	Solitude Ski Resort	74		Skier	No	http://rec-law.us/w68s4A
23	2/1/2012	Squaw Valley	51		Skier		http://rec-law.us/xqDrGE
26	2/4/2012	Sugarbush Resort	41		Skier	Yes	http://rec-law.us/zTDKPK
33	2/4/2012	Ski Windham Mountain Resor	54		Skier		http://rec-law.us/ySA8W4
24	2/5/2012	Keystone Ski Area	58		Skier	No	http://rec-law.us/wH6QJA
25	2/5/2012	Ski Windham Mountain Resort	54		Skier		http://rec-law.us/zcTZpF
30	2/6/2012	Mount Snow	33				http://rec-law.us/ABqYPQ
28	2/8/2012	Vail	37			Yes	http://rec-law.us/zF4Ck2
29	2/9/2012	Keystone Ski Area	72			Yes	http://rec-law.us/A9YwUD
31	2/11/2012	Jay Peak Resort	29		Boarder	Yes	http://rec-law.us/x3rzek
32	2/11/2012	Terry Peak Ski Area	24		Skier	No	http://rec-law.us/A0BvQq

What do you think? Leave a comment.

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How And Why Americans Engage With Winter Sports Brands: Research Reveals Social Networking Plays A Major Role In Activity

Posted: February 23, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Harris Interactive, ski area, skiing, snowboarding, social media, Winter sport, winter sports, X Games | Leave a comment

Nearly Half of Winter Sports Participants Recommend

Image via Wikipedia

Products or Brands to Peers

Slightly over one in five American adults (21 percent) revealed that they ever participate in any winter sport, according to new research released from IMRE Sports, and conducted on their behalf by Harris Interactive. Among those who ever participate in winter sports, 47 percent make recommendations to their peers about their favorite winter sports products or brands.

The research also indicated that among those who ever participate in winter sports, 74 percent use social media sites. Interestingly enough, of that 74 percent, 84 percent utilize the platform to follow brands.

Harris Interactive conducted this survey online among 2,292 adult Americans ages 18 and older between December 19 and 21, 2011. The research was spearheaded by the Maryland-based sports marketing agency, IMRE Sports.

Coupons and Giveaways atop the type of information Americans prefer from brands via social media channels

The type of information Americans prefer to receive from brands through social media sites (e.g., Facebook, Twitter) reveals a variety of trends that brands can leverage via promotions and advertising. The research revealed that even more opportunity lies among those Americans who have ever participated in winter sports.

Among those who use social media sites and who ever participate in winter sports, coupons (49 percent) and giveaways (41 percent) are the most popular types of information users would prefer to receive from the brands they follow or connect with via social media sites.

The research revealed the following statistics among adult Americans who used social media sites, as well as those who used social media sites and ever participated in winter sports:

Types of Information / Use social media sites / Use social media sites and participate in winter sports

Coupons, sales or discounts / 45% / 49%
Giveaways (e.g., contests, sweepstakes, drawings) / 39% / 41%
New or existing product information / 25% / 29%
Event announcements or coverage / 16% / 17%
Customer service feedback / 15% / 16%
Company news (e.g., business updates) / 12% / 15%
A brand’s charitable or environmental efforts / 11% / 11%
Insights about the industry or brand category / 9% / 11%
Behind the scenes information about the brand (e.g., filming of commercials, product/technology info) / 8% / 9%
Other / 2% / 2%

One-on-one conversations and social networking are the most prominent ways in which winter sports participants recommend their favorite winter sports products/brands to their peers

Of the 21 percent of adult Americans who ever participate in winter sports, the research study revealed that 47 percent recommend any of their favorite winter sport products/brands to their peers. Specifically:

· 33 percent use one-on-one conversation (e.g., in person, phone, email, online chat)

· 11 percent use social networking sites (e.g., Facebook, Twitter, Google+)

· 7 percent add their opinion to a review site

· 5 percent blog their recommendations

· 5 percent post a recommendation to an online forum

· 5 percent use video or photo sharing websites (e.g., YouTube, Flickr) to share their recommendation

· 2 percent use some other method to make a recommendation to their peers

Teams and athletes lead winter sports related groups that Americans follow via social media channels

The types of winter sports related groups adult Americans specifically follow using social media channels (e.g., Facebook, Twitter) reveal a range of important trends that brands can leverage via advertising.

The study revealed that 62 percent of adult Americans use social media sites. Among that 62 percent, the research showcased which winter sports-related groups Americans follow or connect with via social channels:

· Teams and athletes led the category (each at 7 percent)

· 5 percent follow news media outlets

· 4 percent follow winter sports events (e.g., Winter X Games, Winter Olympics)

· 4 percent follow apparel manufacturers

· 4 percent follow clubs or associations

· 2 percent follow resorts or venues and gear manufacturers

· 1 percent follow some other winter sports related group

The research showed that women (68 percent) are using social media sites significantly more than men (56 percent). However, among those using social media sites, men (25 percent) are significantly more likely than women (13 percent) to use social media sites to follow or connect with winter sport-related groups.

Skiing and hiking top all winter sports

One-fifth (21 percent) of adult Americans over age 18 ever participate in winter sports. Among them, the study showed the following breakdown of winter sport participation:

· Skiing (e.g., alpine, cross country) and hiking topped all winter sports with 8 percent of adult Americans ever participating in these sports

· 3 percent participate in the following winter sports: snowboarding, snowmobiling and ice fishing

· 2 percent of adult Americans participate in ice hockey

· Other answers included: snowshoeing (2 percent), mountain climbing (2 percent), curling (1 percent) and some other winter sport (3 percent)

· Men (28 percent) are significantly more likely to ever participate in any winter sport compared to women (14 percent)

The research also revealed that significantly more Midwesterners (29 percent) ever participate in winter sports compared to those in the West (22 percent), Northeast (19 percent), or South (15 percent). In addition, significantly more 18-34 (28 percent) and 35-44 year olds (29 percent) ever participate in winter sports compared to their older counterparts (18 percent for 45-54 year olds; 12 percent for those 55+).

“The winter sports fan is extremely loyal to their apparel and equipment brands, and they are willing to share their insights with fellow consumers,” said IMRE Sports Vice President of Social Marketing, Crystalyn Stuart. “The way Americans utilize resources to recommend brands to their peers illustrates how brands can focus their spending, particularly as social media options continue to rise in popularity. This research illustrates that the winter sports fan is a very targeted, but potentially lucrative, demographic.”

For more insight on the implications of this research, visit www.IMRESportsIQ.com.

Survey Methodology
This survey was conducted online within the United States by Harris Interactive on behalf of IMRE Sports from December 19 to 21, 2011 among 2,292 adults ages 18 and older. This online survey is not based on a probability sample and therefore no estimate of theoretical sampling error can be calculated. For complete survey methodology, including weighting variables, please contact Kelly Nowlan at 410-821-8220 or kellyn.

About IMRE Sports
IMRE is an agency of marketing experts serving brands and clients invested in the sports industry. IMRE Sports connects brands to fans and helps corporations leverage their sponsorship investments to generate more brand exposure and fan engagement. IMRE’s clients include Target, Stanley Black & Decker and John Deere. Services include public relations, social marketing, advertising, emerging media and research. For more information, visit www.imresports.com.

About Harris Interactive
Harris Interactive is one of the world’s leading custom market research firms, leveraging research, technology, and business acumen to transform relevant insight into actionable foresight. Known widely for the Harris Poll and for pioneering innovative research methodologies, Harris offers expertise in a wide range of industries including healthcare, technology, public affairs, energy, telecommunications, financial services, insurance, media, retail, restaurant, and consumer package goods. Serving clients in over 215 countries and territories through our North American and European offices and a network of independent market research firms, Harris specializes in delivering research solutions that help us – and our clients – stay ahead of what’s next. For more information, please visit www.harrisinteractive.com.

Mountain Magazine should apologize to the families who will soon lose loved ones because of its latest magazine.

Posted: February 22, 2012 | Author: Recreation Law | Filed under: Avalanche, Ski Area | 1 Comment

Sidecountry? Whoever invented the word should be flogged in downtown Breckenridge.

The winter 2012 edition of Mountain Magazine had its cover headline as “Ski in the Sidecountry: There’s untracked powder waiting out there for you. We have the skis, boards, guides, resorts, and advice you need to get after it.” The editorial director’s article was titled Slacker Lexicology and tried to justify the cover title. Then a two-page article, with numerous mistakes, was inside that was the basis for the cover title. The entire purpose, article and cover were solely used to promote gear in time for the SIA show.

Mountain Magazine: You don’t know what you are writing about.

Cover to cover, there was not one paragraph to support the claim the magazine had advice to “get after it.” That’s probably good because most of the information they provided was wrong. Nor was there anything of substance other than buy this neat clothing and gear, and you can ski out of bounds.

What Mountain Magazine does have is the idea that anything to sell a magazine is worth the effort, even if it kills people.

It is not the resorts that are going to pay the price for this stupidity. It is two groups. The idiots who believe that the other side of the rope is fair game and the Search and Rescue volunteers who will go out in all types of whether to rescue those idiots putting their own life on the line.

Even if resort employees are part of the rescue the resorts not liable, and rightfully so. In most cases when an employee leaves the resort to participate in a SAR, he is no longer working for the resort but now working, as a volunteer for the county sheriff. You should not be liable for what happens outside your boundaries or outside of your control. However, the article sure as heck did not point that out. In fact, the article could lead you to believe that if you paid for a lift ticket to ride up, skiing out of bounds is OK, and you are still protected by the resort.

Sidecountry does not exist. Under the law, you are either inbounds or out of bounds. If you are out of bounds, you have no back up, even if you hired a guide except volunteer SAR. If you are out of bounds, there is no avalanche work, no marked hazards, no place at the bottom of the hill to warm up.

There is backcountry, which has the definition attached to the word that indicates, it’s not a resort. If you go in the backcountry you should have training, a beacon, a shovel, a probe, an airbag and at least one friend who have the same.

The entire issue was devoted to selling gear, allegedly, that you could use out of bounds. The article promised you great skiing if you hired a guide to get there.

The article then talked about UIAGM guides as the people to hire to guide you. UIAGM does not make guides. The article has no clue what it’s writing about with regard to the UIAGM and the “statutes” it developed. The UIAGM has organizations for 17 countries that grand guide status based on the UIAGM to its members. Nor does the magazine understand the Special Use Permits the US Forest Service issues to ski areas operating on USFS land. The writer thinks backcountry gates were opened a decade ago. USFS permits have always required backcountry gates; they’ve never been closed. The only comment in the entire article about the risk is “It’s still wild out there.” Does that mean dangerous or wild like Saturday Night Live?

The article even quoted one company as saying they gave a pledge of “safe return” to its customers. I suspect you still have to sign a release. What happens if you don’t come back safely? My $250 bet is not going to stop an angry spouse who watched their spouse sign up at the resort to go die out of bounds.

On top of that, what type of problems is created using a marketing line of safe return. Two people have already died in-bounds due to avalanches this year and out of bounds you are going to be safe?

What about injury? Out of bounds is not covered by the ski patrol. After you are dragged downhill for miles, if possible, or your wait hours for SAR to arrive, you are still hours from definitive medical care. Is that covered in the article?

Do Something

Normally, I link to the article or the website of the magazine, but in this case, it’s not worth it. Or maybe I won’t dignify the site or degrade my article.

Everyone in the US has the right to access USFS lands. Everyone has the right to study and take classes and learn how not to die out of bounds. Everyone has the right to die. However, when a magazine makes the ordinary reader think they can access the dangerous area by calling it sidecountry or making it sound safe, you are not violating any laws, you are just being schmucks.

Way to exploit the first amendment.

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Headlines about Canada ski injuries is very misleading.

Posted: February 15, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Canada, Canadian Institute for Health Information, Hockey, Hospital, Ice skating, Ski, Snowmobile, Sport | 1 Comment

Actual report does not take into account participants and uses skiing just to get press, not because it is the worst sport.

This study, when you read the headline implies one idea: Skiing is dangerous. When you read the article, you get a completely reverse opinion of what the study reports. More importantly, the study is being used for an agenda rather than a way to either reduce or study injuries.

The study looked at winter sports injuries in Canada. It is a simple study showing how many hospital visits occurred each winter based on various activities. From the study, the headlines looked at these two groups of numbers.

Slopes-Related Injuries 2,300

Hockey Players 1,114

The headline then stated that slope injuries were twice as dangerous as hockey. Right off the bat, though you see an issue. This is just a total number of hospital visits. It means nothing, unless you know how many people participated in the sport or how many hour’s participants spent on the sport. Unless, and it very well may be possible, the number of people skiing and boarding in Canada equaled the number of people playing hockey, then the numbers really don’t point to anything. The numbers definitely do not point out that skiing and boarding is twice as dangerous as hockey.

After some more reading, more numbers pop to the surface.

Snowmobiling 1,126

Ice Skating 889

Tobogganing 171

Snowmobiling creates more hospital stays than hockey. However, hockey is the measurement that the criteria are compared to. Is this because everyone in Canada understands the real risks of hockey? Or is hockey perceived as a dangerous sport.

If the cause for the headline is the latter, then the headline was just made to get your attention. Snowmobiling is half as dangerous as skiing and riding so why was snowmobiling not used as the comparison.

Then the bomb shell drops. All of these sports combined do not make up 10% of the other winter sports injuries.

However, the hospitalization numbers pale in comparison to people who were simply injured by winter activities.

In Ontario alone, the report says, there were more than 45,000 emergency department visits — 285 a day — due to winter activities in 2010-2011.

And that’s just the tip of the iceberg, Fortin says, given that many of the hurt would have visited family doctors, walk-in clinics or just suffered through their injuries.

If you dig through the article, you gather these stats.

Slopes-Related Injuries (Skiing/Boarding)	2,300
Snowmobiling	1,126
Hockey Players	1,114
Ice Skating	889
Tobogganing	171
Total	5,600

5600 injuries in five sports nationwide are nothing compared to 45000 in just one city alone. Twenty days in Ontario and those injuries exceed the ones the false headline was blaring about.

There were some relevant points that could be pulled from the report.

1. Injuries remained relatively constant over the five years of the report for all five sports.

a. However, this number still has more value if compared to the overall number of participants. If participating went up or down that changes the fact the injuries were constant.

2. The age group with the largest number of injuries was young males between the ages of 10 and 19.

3. 33% of the head injuries in all five sports came from skiing and snowboarding.

a. There were 759 head injuries over the past five years on the slopes showing a decrease in head injuries…. Maybe.

So? Think

You cannot take headlines at face value. EVEN MINE! Headlines get you to read the article, and that is their sole purposes. You have to understand what the article is trying to say, where the information that makes up the article comes from and maybe, what is the writer trying to accomplish.

See Skiing injuries lead to twice as many hospital stays as hockey, new data shows

What do you think? Leave a comment.

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Research shows beacons have issues with multivictim searches

Posted: February 14, 2012 | Author: Recreation Law | Filed under: Avalanche, Search and Rescue (SAR), Skiing / Snow Boarding | Tags: Adventure travel, avalanche, Avalanche Beacons, Beacons, Mulit Victim Searches, Mulitvictim Searches, Ski Resort | Leave a comment

Problems may be more prevalent with older models of beacons

The issue is that some beacons will mask another beacon. If two victims with beacons are buried in close proximity then you may only see the one victim.

The article and issues are complex and are still be investigated, however if you are a professional or possibly use your beacon in multivictim situations you should read the article.

See Problems with multivictim searches or watch a Video about the issue.

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PSIA-AASI Releases E-Learning Module for Entry Level Instructors

Posted: February 9, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: E-learning, Professional Ski Instructors of America (PSIA), PSIA-AASI, Winter sport | Leave a comment

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In an effort to expand resources for those looking to become snowsports instructors, the Professional Ski Instructors of America (PSIA) and American Association of Snowboard Instructors (AASI) has launched the Entry Level Instructor’s Guide. This new e-learning tool details in easy-to-understand language what to expect in becoming a professional snowsports instructor.

The Entry Level Instructor’s Guide is the first in a series of online e-courses produced by PSIA-AASI that introduces the basics of teaching snowsports, PSIA-AASI as an organization, and PSIA-AASI models and concepts to prospective instructors or newly hired instructors. Each course integrates on-snow video content of snowsports classes in action, as well as downloadable attachments and links for additional research and learning.

“We’re always excited when we launch a new education product, and this one is at the start of a whole new range.” said Earl Saline, PSIA-AASI Professional Development Manager. “As technology has evolved, we are looking at how PSIA-AASI can evolve it’s delivery of education content and we’re excited to improve our online resources with the addition of these e-courses.”

The Entry Level Instructor’s Guide is a 14-minute online course that guides the viewer through a slide show providing an overview of what to expect as a new instructor. With voice-over and video content included, the course is an interactive experience that extends well beyond simply reading text on a screen. This free resource is available to anyone interested in learning more about snowsports instruction through the PSIA-AASI website, TheSnowPros.org.

“Our extension into e-learning came from a desire to provide valuable information for new instructors in a whole new way,” says Saline. “Rather than replace instructor training that a school might provide, the Entry Level Instructor’s Guide is meant to compliment that training for new staff. This piece was developed with members, trainers, and school director input, whose combination of knowledge and experience allowed us to create a great introduction to teaching snowsports that will translate regardless of where an instructor might be working or volunteering.”

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The helmet issue is so contentious people will say the stupidest things

Posted: February 8, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Heavenly Mountain Resort, Lake Tahoe, Ski, ski season, Snowboard | Leave a comment

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County sheriff deputy reports a helmet would have saved the man’s life, even though he was wearing one and died of blunt force trauma.

In a sad case a snowboarder at Heavenly Mountain Resort avoided another skier and hit a sign post. See Snowboarder from England dies after crash at Heavenly. Another news source also reported the accident and received a quote from the investigating depty. The deputy was quoted in the article:

It is unknown if Perring was wearing a helmet at the time of the accident. A helmet would not have prevented the injuries that led to Perring’s death, Lovell said.

The first and most other reports stated the deceased, Perring was wearing a helmet. At the time of the quote, the newspaper reported the man died of blunt force trauma after hitting the sign, as reported by the deputy.

Perring was skiing on the resort’s Tamarack run about 3 p.m. when he attempted to avoid another skier, left the run and hit a sign post, Lovell said. He suffered blunt force trauma to his chest during the crash.

See Skier dies following collision with sign post at Lake Tahoe resort. Either the reporter was not quoting the deputy correctly (and obviously did not read their own article to put the quote in) or the deputy has been told or decided to say a helmet would have saved the person’s life.

They won’t. So far there have been 13 fatalities at ski areas this season and seven of the deceased were wearing a helmet. One person was not wearing a helmet and five of the reports do not identify if the deceased was wearing a helmet. See Skier/Boarder Fatalities 2011-2012 Ski Season

Do Something

I hope this is bad reporting, editing or something.

Wear a helmet. It will prevent a head injury if you are skiing or boarding. Just remember it will not save your life and it may make you feel more secure leading you to ski or board faster diminishing or eliminating any protection the helmet provides.

Most importantly, think!

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Tough fight on a case, release used to stop all but one claim for a CO ski accident

Posted: February 6, 2012 | Author: Recreation Law | Filed under: Colorado, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Adventure travel, AEE, Alpine skiing, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Camp Fire USA, Colorado, Lawsuit, Marketing, PSIA, Standards, Summary judgment | Leave a comment

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

But for an outrageous expert opinion, the release would have ended this lawsuit.

This case is a lawsuit against Breckenridge Outdoor Education Center (BOEC) and two of its employees by a disabled skier. Also sued was the manufacturer of the bi-ski, a device that allows people with no mobility to experience skiing. BOEC is a non-profit that provides tons of great services for people, most of whom are disabled. In this case, the plaintiff was a “legally blind, cognitively delayed, and physically limited by cerebral palsy” minor.

The plaintiff went to BOEC with a group people from Kansas, the Adventure Fitness Program at Camp Fire USA. Before going on the trip the plaintiff’s mother signed the necessary documents, including a release and reviewed the marketing and other information provided to her. Upon arrival, the plaintiff was taken to Breckenridge Ski Area with two BOEC employees. She was skiing in a bi-ski with the two defendant skiers. One was a lookout or later termed blocker in the case and one held tethers, which controlled the bi-ski.

On the second run, the three were skiing down a blue or intermediate ski run. A third party not part of the suit lost control and skied between the defendant employee and the bi-ski into the tethers. This separated the BOEC employee from the bi-ski. The bi-ski proceeded down the ski slope, out of control hitting a tree. The injuries to the plaintiff were not described.

The plaintiff through her mother sued the bi-ski manufacture, BOEC and the two BOEC employees. The plaintiff claimed four counts of negligence per se because of violations of the Colorado Skier Safety Act against the defendant employee who was holding the tethers. (To see a definition of Negligence Per Se under Colorado law see I nstructional Colorado decision Negligence, Negligence Per Se and Premises Liability.) The plaintiff argued another claim sounding in “negligence, willful and wanton, reckless, and/or gross negligence” against BOEC. The remaining claims were against the manufacturer of the bi-ski which was dismissed in another action not the subject of this opinion.

This motion was a motion for Summary Judgment filed by BOEC to eliminate the fifth claim, the negligence, willful and wanton, reckless, and/or gross negligence of BOEC.

Validity of a Release for a minor signed by a parent under the CO Statute

The court first looked at the requirements for a release signed by a parent to be upheld under Colo . Rev. Stat. § 13-22-107, generally that the parent’s signature must be voluntary and informed. Prior to this decision, the only case that has taken a look at this issue was Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) which I reviewed in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

In Wycoff, the release signed by the mother for the child was not upheld. The Wycoff release only had one sentence referring to releasing any claims. Here, the BOEC release had a minimum of six paragraphs informing the plaintiff’s mother that she was waiving her daughter and her legal rights.

Colorado law does not require the specific use of the word negligence in a release. However, all Supreme Court decisions to date had some language referencing waiving personal injury claims based on the activity the release covered.

The court concluded that the plaintiff’s mother signed a document that was clearly identified as a release, and thus she signed it voluntarily.

The court then looked at the release to see if it informed the plaintiff’s mother of the risks of the activity. The release had one full page that explained in detail the degree of risk involved in the BOEC programs. On top of that, the plaintiff’s mother had called and talked to the staff at BOEC as well as the staff of Adventure Fitness Program at Camp Fire USA that was taking her daughter on the trip.

After all of this, the plaintiff’s mother the court concluded was informed of the risks of the trip and the activity.

Validity of the Release

The court started by reviewing the Colorado requirements on how a release will be reviewed under Colorado law. This is fairly standard in all legal decisions.

Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, (Colo. App. March 31, 2011) (Reviewed here in Release stops suit for falling off horse at Colorado summer Camp.)

The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)

Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)

To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093

BOEC bears the burden of proving each of these elements

The court then went through each of the four steps to make sure this release met the requirements.

(i) there must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) the agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) the agreement may not violate public policy

Other courts had found that recreation services are not essential services and there is no unfair bargaining advantage in these types of services. Those recreational services in Colorado where courts had made this decision included mountain biking, bicycle rental, skydiving, handicapped downhill ski racing, and rental of ski equipment.

The issue of whether the party’s intentions are clear and unambiguous requires a review of the document. To do that the court looked at the requirements for a contract in general. (A release is a contract, an agreement between two parties with consideration flowing between the parties.) “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.“

In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.

The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.

Here, the release was written in simple and clear terms that were free from legal jargon, not inordinately long and/or complicated. Finally, the fact that the plaintiff’s mother indicated she understood the release satisfied this requirement.

The third requirement requires that the contract be fairly entered into. That means that one party is not so obviously disadvantaged that they are at the mercy of the other party. Because recreational activities are not essential services, and those services can be found through other parties who offer them this requirement is always met in the recreational setting. Essential services are those necessary for life. Examples are public transportation, utilities or food.

The last requirement is that the release does not violate public policy. This means that the release does not waive a duty of BOEC’s which cannot be waived. Again, recreational services do not make up a public policy or violate a public policy. In fact, under Colorado law, the public policy is to support recreational activities and thus have parent’s sign releases.

The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities. Colo. Rev. Stat. § 13-22-107(1)(a)(VI)

Was there a Material Misrepresentation or Fraud in the Inducement in the relationship between the plaintiff and her mother and the defendant BOEC.

Marketing makes promises that Risk Management must pay for.

A release is voidable if it was secured based on a material misrepresentation or fraud in the inducement. Here, the plaintiff argued that BOEC claimed it met the highest standards of the Association of Experiential Education (AEE), which it did not. The plaintiff claimed that BOEC claimed that it was accredited by AEE when it was not, and it met the standards of AEE for adaptive ski programs when there was not any standard for that program.

BOEC stated that at the time of the accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. BOEC also admitted that at the time of the accident the accreditation was for other programs of BOEC, and that AEE did not accredit adaptive ski programs.

Based on these two representations, the plaintiff then argued that BOEC misrepresented itself to the plaintiff.

To establish fraud, a plaintiff has to prove that

(1) a fraudulent misrepresentation of material fact was made by the defendant;

(2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false;

(3) the plaintiff relied on the misrepresentation;

(4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and

(5) the reliance resulted in damages.

Here, the plaintiff could not prove that it relied on the misrepresentations of the BOEC and that the reliance was justified. The court did not find that BOEC had not misrepresented itself or its credentials. The court found the plaintiff had not proven reliance the final step needed to prove fraud.

The court also found that BOEC had not misrepresented the facts to the extent needed to be an intentional fraudulent misrepresentation.

At the time, BOEC followed the adaptive ski standards of the Professional Ski Instructors of America, (PSIA). BOEC was accredited by AEE for its other programs. The letter which had the critical information in it about standards, and accreditation was a letter used for all BOEC programs.

Was the conduct of the parties Willful and Wanton rising to the level of Gross Negligence?

This is always an issue when a release is signed because if the actions of the defendant rise to this level than the release cannot be used to stop claims for gross negligence or intentional acts.

“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.”

The court then reviewed the opinion of the plaintiff’s expert witness. His report labeled the BOEC program as inherently unsafe and went on from there. (See Come on! Expert’s will say anything sometimes.)

Based on the expert witness report, the court did not dismiss the last claim of the plaintiffs for gross negligence. The opinion of the expert raised enough facts to create an issue that could not be decided by the court.

All but this final claim was dismissed by the court.

A well-written release in this case almost won the day; it definitely took a lot of fight out of the plaintiff’s case. The only issue the release could not beat was an outrageous opinion by the plaintiff’s expert witness.

So Now What?

1. Don’t make the court look for a clause to support your release. Put in the release the magic word negligence and that the signor is giving up their legal rights for any injury or claims based on your negligence. Here, the court was able to find six paragraphs that did the same thing. You can eliminate a few paragraphs if you are up front and honest. You are giving up your right to sue me for any claim or loss based on my negligence.

2. Identify your document as a release. The court based its decision upholding the release based on the language in the release, and because it was labeled a release.

3. If you communicate with a client in advance of the activity about the risks or the release, make a note of it. This again was important to the court in proving the mother was not misled and knew what she was signing.

4. Besides specifically informing the signor of the fact they are giving up their right to sue, your release needs to point out the risks of your activity. Here, the court points out the page long list of risks as important in upholding the release. Too many releases do not include the risks.

5. Make it easy for your guests to contact you and ask questions about your release, your activity and the risks. Again, the court pointed this out as a specific issue that was important in the court finding for the defendant in this case.

6. The burden on proving that the release meets the requirements needed in a specific state is on the defendant. Consequently, it behooves the defendant recreation provider to place those requirements in the release so the plaintiff, upon signing, helps prove the document is valid.

7. Marketing sinks more ships in the outdoor recreation industry than injuries. Make sure your marketing matches who you are and what you do, and that you are not misrepresenting who you are and what you can do. In this case, BOEC escaped a disaster with its marketing of standards and accreditation that either did not exist, or that it did not have.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

Posted: February 6, 2012 | Author: Recreation Law | Filed under: Colorado, Legal Case, Release (pre-injury contract not to sue), Ski Area | Tags: AEE, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Breckenridge Ski Resort, Colorado, Colorado Ski Safety Act, Denver, Federal Rules of Civil Procedure, Minor, PSIA, Release, Summary judgment, United States Magistrate Judge | Leave a comment

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

To Read an Analysis of this case see Tough fight on a case, release used to stop all but one claim for a CO ski accident

Kimberly N. Squires, by and through her Guardian and Natural Parent, LYLE K. Squires, Plaintiff, v. James Michael Goodwin, an individual, Breckenridge Outdoor Education Center, a Colorado corporation, and Mountain Man, Inc., a Montana corporation, Defendants.

Civil Action No. 10-cv-00309-CBS-BNB

United States District Court For The District Of Colorado

2011 U.S. Dist. LEXIS 129234

November 8, 2011, Decided

November 8, 2011, Filed

Prior History: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 128565 (D. Colo., Nov. 7, 2011)

CORE TERMS: ski, bi-ski, skiing, misrepresentation, willful, reckless, citations omitted, exculpatory, deposition, wanton, trip, instructor, adaptive, omission, outdoor, summary judgment, wilderness, public policy, bargaining, mountain, knot, recreational, disability, recklessly, daughter’s, sit-down, entity, lesson, negligence claim, precautions

COUNSEL: [*1] For Kimberly N. Squires, by and through her guardian and natural parent, Lyle K. Squires other, Lyle K. Squires, Plaintiff: Colleen M. Parsley, LEAD ATTORNEY, Gregory A. Gold, Gold Law Firm, L.L.C, Greenwood Village, CO; Richard Waldron Bryans, Jr., Bryans Law Office, Denver, CO.

For James Michael Goodwin, an individual, Defendant: Gary L. Palumbo, Bayer & Carey, P.C., Denver, CO.

For Breckenridge Outdoor Education Center, a Colorado corporation, Defendant: Deana R. Dagner, Joan S. Allgaier, John W. Grund, Grund Dagner, P.C., Denver, CO.

JUDGES: Craig B. Shaffer, United States Magistrate Judge.

OPINION BY: Craig B. Shaffer

OPINION

MEMORANDUM OPINION AND ORDER

This civil action comes before the court on Defendant Breckenridge Outdoor Education Center’s (BOEC’s) Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52). On September 16, 2010, the above-captioned case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. 636(c), Fed. R. Civ. P. 73, and D.C. COLO. LCivR 72.2. (See Doc. # 42). The court has reviewed the Motion, Ms. Squires’ Response (filed January 6, 2011) (Doc. # 56), BOEC’s Reply (filed January [*2] 24, 2011) (Doc. # 61), BOEC’s Notice of Supplemental Authority (filed April 18, 2011) (Doc. # 76), Ms. Squires’ Response to BOEC’s Notice of Supplemental Authority (filed May 12, 2011) (Doc. # 81), Ms. Squires’ Reply Memorandum Brief Regarding Misrepresentation (filed May 30, 2011) (Doc. # 84), BOEC’s Surreply Brief regarding Misrepresentation (filed June 6, 20110) (Doc. # 89), the affidavit, the exhibits, the arguments presented at the hearing held on July 20, 2011, and the entire case file and is sufficiently advised in the premises.

I. Statement of the Case

Ms. Squires’ claim against BOEC arises out of a ski accident (“the Accident”) that occurred at Breckenridge Ski Resort, Colorado on February 13, 2008. BOEC is a nonprofit Colorado corporation that provides outdoor experiences for people with disabilities. (See SAC (Doc. # 13) at 2-3, ¶ 6; Scheduling Order (“SO”) (Doc. # 40) at 7 of 15 (Undisputed Facts)). At all relevant times, Ms. Squires was 17 years old, legally blind, cognitively delayed, and physically limited by cerebral palsy. (See SAC at 1-2, ¶ 2).

BOEC employed Jennifer Phillips as a para-ski instructor at the time of the Accident. (See SO at 7 of 15). On the morning of [*3] the Accident, Ms. Squires was paired with Ms. Phillips and placed in a bi-ski. (See id.). The bi-ski was manufactured by Defendant Mountain Man. (See id.). Ms. Phillips and Ms. Squires went to Peak 9 at Breckenridge Ski Resort. (See id.). Ms. Phillips utilized tethers as a means to control the bi-ski. (See SAC at 5 of 13, ¶ 16). On their second run, Ms. Squires and Ms. Phillips skied down Cashier trail. (See SO at 7 of 15). Defendant Goodwin was also skiing down Cashier trail. (See id.). Defendant Goodwin lost control and skied into the tethers between Ms. Squires and Ms. Phillips. (See Goodwin Deposition, Exhibit B to Motion (Doc. # 52-2), at 2, 3 of 3). Due to the force of the collision with Defendant Goodwin, Ms. Phillips lost control of the tethers and the bi-ski containing Ms. Squires continued down Cashier trail unrestrained until it collided with a tree. (See SAC at 5 of 13, ¶ 19; BOEC’s Answer to SAC (Doc. # 27) at 2-3 of 8, ¶ 12). Ms. Squires was injured when the bi-ski collided with a tree. (See SO at 7 of 15).

Ms. Squires filed her initial Complaint on February 12, 2010, alleging five claims for relief against Defendants Goodwin and BOEC based on diversity of citizenship [*4] jurisdiction. (See Doc. # 1). She filed her First Amended Complaint (“FAC”) on April 15, 2010, alleging nine claims for relief against Defendants Goodwin, BOEC, and Mountain Man, Inc. (“Mountain Man”). (See Doc. # 5). Ms. Squires refiled her First Amended Complaint on April 19, 2010 pursuant to a request from the Clerk of the Court. (See Doc. # 11). Ms. Squires filed her Second Amended Complaint (“SAC”), the current operative pleading, on June 2, 2011, alleging nine claims against Defendants Goodwin, BOEC, and Mountain Man. (See Doc. # 13). Ms. Squires’ First, Second, Third, and Fourth Claims for Relief allege negligence per se under the Ski Safety Act, Colo. Rev. Stat. § 33-44-109(2) and common law negligence against Defendant Goodwin. (See Doc. # 13 at 6-7 of 13). Ms. Squires’ Fifth Claim for Relief alleges negligence, willful and wanton, reckless, and/or gross negligence against Defendant BOEC. (See id. at 8-9 of 13). The court granted summary judgment in favor of Defendant Mountain Man on Ms. Squires’ Sixth, Seventh, Eighth, and Ninth Claims for Relief for strict products liability, breach of implied warranty of fitness and/or merchantability, common law negligence, and breach [*5] of express warranty. (See id. at 9-12 of 13; “Order on Pending Motions” (Doc. # 119)).

Defendant BOEC moves for summary judgment on the Fifth Claim for Relief in the SAC on the grounds that Ms. Squires is prevented from bringing the claim by a valid release of liability.

II. Standard of Review

“Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law.” Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F. Supp. 2d 934, 939 (D. Colo. 2009) (internal quotation marks and citations omitted). “When applying this standard, the court must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Id. “All doubts must be resolved in favor of the existence of triable issues of fact.” Id. However, if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion [*6] of fact, “the court may . . . grant summary judgment if the motions and supporting materials — including the facts considered undisputed — show that the moving party is entitled to it.” Fed. R. Civ. P. 56(e).

III. Analysis

A. Release of Negligence Claim under Colo. Rev. Stat. § 13-22-107

Prior to the Accident, on January 13, 2008, Ms. Squires and her mother, Mrs. Squires, signed an “Acknowledgement [sic] of Risk and Release of Liability” (“Release”). In Colorado, the parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence. Colo. Rev. Stat. § 13-22-107. The statute requires that such a decision be “voluntary and informed.” Colo. Rev. Stat. § 13-22-107(1)(a)(V).

(1)(a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:

(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;

(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities [*7] may be unwilling or unable to provide the activities;

(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.

(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;

(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and

(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

. . .

(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.

(4) Nothing in this section shall be construed to permit [*8] a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

Colo. Rev. Stat. § 13-22-107.

“Because waiver is an affirmative defense, the Defendant has the burden to prove waiver.” Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) (Furman, J, dissenting) (citing C.R.C.P. 8(c)). Ms. Squires argues that BOEC is not entitled to summary judgment on the Fifth Claim for Relief based on the Release because her mother’s decision to sign the Release was not informed.¹ Relying on Wycoff, 251 P.3d at 1260, Ms. Squires argues that the decision was not informed because the Release did not inform Mrs. Squires of the risks associated with BOEC’s winter program, failing to “mention skiing, skis, ski slopes, ski lifts, or anything at all specific to skiing.” (See Response (Doc. # 56) at 9 of 19).

1 Ms. Squires concedes that Mrs. Squires signed the Release voluntarily. (See, e.g., Doc. # 84-4 at 6 of 7).

In Wycoff, a 17-year old minor attending a church-sponsored event was injured when she was riding [*9] on an inner-tube towed by an ATV on a frozen lake. Wycoff, 251 P.3d at 1263. The minor and her mother had signed the registration and information form that contained a release. Id. While the minor was aware that riding on an inner-tube towed by an ATV on a frozen lake would be an activity at the event, her mother was not. Wycoff, 251 P.3d at 1263. The court in Wycoff interpreted § 13-22-107(3) to require that a parent’s decision to release a child’s prospective claims be “voluntary and informed.” Id. Although the court noted the standard for informed consent to a medical procedure, it did not adopt that standard for a parental release of claim. Wycoff, 251 P.3d at 1264. Without setting forth precisely how much information is required for a parental release to be “voluntary and informed,” the court held that a one-page “registration and information” form, which happened to contain one sentence in the last paragraph stating, “I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation,” was legally insufficient to release a child’s negligence claim. Id. at 1265. The court agreed that “[a] release need not contain [*10] any magic words to be valid,” but recognized that “in every Colorado Supreme Court case upholding an exculpatory clause, the clause contained some reference to waiving personal injury claims based on the activity being engaged in.” Wycoff, 251 P.3d at 1265. The “registration and information” form held inadequate in Wycoff made no reference to the subject activity or to waiving personal injury claims, nor did it provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. Id.

The Release here provides in pertinent part:

In consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities. . . I, and/or the minor student, and/or the person for which I am legal guardian, the undersigned:

1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that

2. Understand that risks during outdoor programs [*11] include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical facilities or while traveling to and form the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.

3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.

4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.

I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes [*12] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.

(See Exhibit A to Motion (Doc. # 52-1)). On the other side of the Release was a letter of explanation (“Greetings Letter”) that the court may consider as evidence of whether the decision to sign the Release was informed. (See id. at 4 of 5; Deposition of Sara Squires, Appendix 4 to Ms. Squires’ Reply (Doc. # 84-4) at 3 of 7). See Wycoff, 251 P.3d at 1264 (“We will assume for purposes of this case that a facially deficient exculpatory contract could be cured by extrinsic evidence.”); Glover v. Innis, 252 P.3d 1204, 1209 (Colo. App. 2011) (extrinsic evidence permitted not to contradict or vary terms of an agreement, but to show waiver of a provision of the agreement). The Greetings Letter stated in pertinent part:

Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure [*13] or activity is unclear to you.

While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledgement of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places[.]

(See Doc. # 61-1 at 4 of 5).

A finding that Mrs. Squires’ decision to sign the Release was informed is not inconsistent with the analysis in Wycoff, 251 P.3d at 1260. First, the release in Wycoff was one sentence that “state[d] only that plaintiff will not hold Grace ‘responsible for any liability which may result from participation,'” surrounded by sentences addressing different topics. Here, the Release was clearly entitled at the top “Acknowledgement [sic] of Risk and Release of Liability,” in large, italicized letters. (See Doc. # 52-1). The first sentence again states, “ACKNOWLEDGMENT OF [*14] RISK AND RELEASE OF LIABILITY (REQUIRED)” in capital letters and underlined. Id. The Release signed by Ms. Squires was clearly identified as a waiver and release of liability.

Second, the Release includes one full page that explains in detail the degree of risk involved with BOEC outdoor programs, events, activities, and/or courses; the extent of possible injuries from any activity, including injury, permanent disability, fatality, and other risks not known or not reasonably foreseeable; participation in activities and the use of equipment; and the release of BOEC from any all and claims, whether resulting from negligence or otherwise. (See Doc. # 52-1). Ms. Squires was a participant in a BOEC winter outdoor program that included skiing. The Release refers to outdoor programs and sets forth a detailed explanation of the possible risks of injury to property and person. (See id.).

It is conceded that when she signed the Release, Mrs. Squires knew that her daughter would be skiing during her trip to Colorado. (See Doc. # 56 at 10 of 19). Nevertheless, Ms. Squires argues that the Release did not provide any, much less adequate, information regarding the inherent risks of skiing or describe [*15] the particular risks of the sit-down ski that she used and that it would be controlled by her instructor with tethers. Ms. Squires provides an affidavit from Mrs. Squires stating that, in response to her telephone inquiry, a BOEC employee instructed her to mark “Sit-Down” and “Bi-Ski” on the “Wilderness/Ski Group Information” Form, and that no one from BOEC explained to her what a “Sit-Down” or “Bi-Ski” was. (See Affidavit of Sara A. Squires, Exhibit 1 to Response (Doc. # 56-1); Doc. # 84-4 at 5 of 7).

Mr. and Mrs. Squires were provided the BOEC forms and applications to be completed in advance of the trip, including the Release, by Andrea Breier, Director of the Adventure Fitness Program at Camp Fire USA at the time, the group that organized the ski trip that Ms. Squires attended. (See Affidavit of Andrea Breier, Exhibit D to Reply (Doc. # 61-1) at 1-2 of 5). Mrs. Squires had opportunities to ask questions about the ski trip and the forms before her daughter’s trip to Colorado. (See id. at 2 of 5). Ms. Breier specifically recalls explaining to Mrs. Squires that Ms. Squires would be seated when skiing, that BOEC uses sleeping bags to pad the bucket seat, that students in wheelchairs [*16] have two assistants helping them, and that the instructor uses guide ropes to steer the ski down the mountain. (See id.). Mrs. Squires knew that her daughter would be using some form of sit-down ski on this trip because her primary means of mobility was by wheelchair and she would not have been able to ski down the mountain standing up. (See id.). Mrs. Squires completed the BOEC application and Release and provided Ms. Breier a typewritten summary that explained Ms. Squires’ conditions, limitations, and medical needs. (See Doc. # 61-1 at 2 of 5, ¶ 11). Mrs. Squires also wrote a detailed letter to BOEC, stating in pertinent part:

Sometimes during activities such as skiing, kids who have an implanted baclofen pump can experience withdrawal.² If she is in a “bucket”/”basket” type ski, where she might be more scrunched up, or her body is more compressed down, then the catheter line can become pinched or kinked up. If they use the bucket type, then her rehab doctor recommends that she ski for about 2 hrs and then be allowed to stand up to help “straighten” out the line. Then, go back to skiing again. If they use a “sit down ski” where she is more upright (like sitting in a wheelchair), then [*17] she shouldn’t have any problems. I am not familiar with the types of equipment they have, but am only saying what other families whose children also have pumps have told me about the equipment.

(Letter from Sara Squires dated February 12, 2008, Exhibit E to Reply (Doc. # 61-2)).

2 Ms. Squires had a surgically inserted baclofen pump, which dispenses medication for muscle spasms.

Despite that the Release does not specifically include the words, “skiing,” “sit-down,” or “bi-ski,” Mrs. Squires understood that her daughter would be seated in some type of sit-ski on the trip. While Mrs. Squires claims to have had no knowledge of what a sit-down bi-ski was at the time she signed the Release, the evidence demonstrates that she had sufficient notice and knowledge of the activities that her daughter would be participating in and the associated risks. Mrs. Squires conscientiously made inquiries to BOEC about the forms and the trip. (See Doc. # 84-4 at 5 of 7). Mrs. Squires was familiar with releases generally. (See Doc. # 84-4 at 4 of 7 (“Because . . . every single program on the face of the earth has a risk and release of liability and some verbiage to that effect.”); see also 6 of 7 (“It’s the [*18] same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberley’s behalf for everything that she has ever participated in.”). Ms. Squires’ parents were informed that she would be skiing in Breckenridge, Colorado, in a type of sit-down ski, controlled by an instructor with tethers. The Release specifically refers to outdoor activities and associated risks and was accompanied by a cover letter that explained the risks involved with ski lessons, including the possibility of serious injury and even death. The Release provides that risks during outdoor programs include injury, permanent disability, fatality, severe social or economic losses, and other risks not known or reasonably foreseeable. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 8 (that “mother may not have contemplated the precise mechanics of her daughter’s fall does not invalidate the release and does not create a genuine issue of material fact”). When she signed the Release, Mrs. Squires had sufficient information “to assess the degree of risk and the extent of possible injuries from any activity,” Wycoff, 251 P.3d at 1265, and to make an informed decision to release any claims that [*19] Ms. Squires may have had against BOEC.

B. Validity of Release

The court having determined that the decision to release Ms. Squires’ prospective claims was informed pursuant to Colo. Rev. Stat. § 13-22-107(1)(a)(V), the court must next determine whether the Release was legally valid. “Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc., P. 3d , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, * 1 (Colo. App. March 31, 2011) (citation omitted). “The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998); see also Robinette v. Aspen Skiing Co., L.L.C., 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (D. Colo. Apr. 23, 2009), aff’d, 363 Fed. Appx. 547 (10th Cir. 2010) (citing B & B Livery, 960 P.2d at 136). “Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the [*20] other’s negligence.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (citation omitted). “To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy.” Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (citations omitted). BOEC bears the burden of proving each of these elements. See id.

Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1112 (10th Cir. 2002) (public need and disparity of bargaining power absent in context of mountain biking and bicycle rental); Jones v. Dressel, 623 P.2d 370, 377-78 (Colo. 1981) (because recreational skydiving service “was not a matter of practical necessity for even some members of the public” and thus “not an essential service,” Defendant did not possess a decisive [*21] advantage of bargaining strength over plaintiff); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409-10 (D. Colo. 1994) (handicapped downhill ski racing was “a recreational activity, . . . neither a matter of great public importance nor a matter of practical necessity”) (citing Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 475 (D. Colo. 1992) (upholding an exculpatory clause in the context of ski equipment rental)). Ms. Squires does not challenge BOEC’s ability to prove this first element.

Second, the court evaluates whether the Release expresses the parties’ intent in clear and unambiguous language. “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996) (citation omitted). Ms. Squires argues that the Release is ambiguous and, therefore, invalid, because the language, “[a]lso I understand that I share the responsibility for safety during all activities” expresses a “shared regime of risk,” contradicts the language “I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, [*22] and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity,” and makes the participant/signer solely responsible for any injuries or bad outcomes. (See Doc. # 52-1; Doc. # 56 at 15-17 of 19).

“Terms used in a contract are ambiguous when they are susceptible to more than one reasonable interpretation.” Ad Two, Inc. v. City and County of Denver, 9 P.3d 373, 376 (Colo. 2000). “In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.” Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (citations omitted). “The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.” Moland v. Industrial Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004). Specific terms, such as “negligence,” are not required for an exculpatory agreement to shield a party from negligence claims. Potter, 849 F. Supp. at 1410 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989) [*23] (noting that the release was written in simple and clear terms that were free from legal jargon, the release was not inordinately long and complicated, the plaintiff indicated in her deposition that she understood the release, and the first sentence of the release specifically addressed a risk that described the circumstances of the plaintiff’s injury)). The inquiry is not whether specific terms are used, but “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. See also Chadwick, 100 P.3d at 467 (Colorado Supreme Court has “previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions”). “If there is no ambiguity, a contract will be enforced according to the express provision of the agreement.” B & B Livery, 960 P.2d at 136.

Here, the Release is written in clear and simple terms, is free from legal jargon, is neither long nor complicated, and encompasses the risks encompassed by Ms. Squires’ Fifth Claim for Relief. The Release specifically includes claims for [*24] negligence. The specific risk of what occurred in the Accident is encompassed within the risks of BOEC’s outdoor winter program. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at * 3 (“specific risk of colliding with a snowmobile being operated by a ski resort employee is necessarily within the risks of skiing/riding”) (internal quotation marks omitted). The court does not find the Release ambiguous.

Nor does the court find the Release is reasonably susceptible to Ms. Squires’ interpretation. Ms. Squires interprets two provisions in the Release in a way that strains logic to conclude that the Release as a whole is ambiguous. That Ms. Squires agrees to share the responsibility of safety during BOEC activities is not mutually exclusive from Ms. Squires agreeing to release claims arising out of BOEC activities.

Ms. Squires also notes the Release language that “BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course,” claiming that BOEC failed to do this, and querying how BOEC could shift this responsibility to its participants. Ms. Squires claims that BOEC’s failures related to the equipment used, terrain selected, use of volunteers, control of [*25] the bi-ski, training and selection of instructors, assessment of plaintiff’s disabilities, provision of instructions and safety precautions, and prevention of accidents with other skiers. The Release specifically addresses that “although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety.” (See Doc. # 52-1).

When the Release is read as a whole and the words are given their generally accepted meaning, it is susceptible to one reasonable interpretation: that although BOEC has taken precautions, it cannot guarantee absolute safety; that there are serious risks involved in BOEC activities; and that, to participate in BOEC activities, the releaser agrees to release BOEC from any and all claims related to a BOEC activity. The Release by its plain language expresses the parties’ intent to release BOEC from liability for all personal injuries resulting from negligence in conjunction with a BOEC activity.

Third, the court examines whether the Release was fairly entered into. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect [*26] to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *3 (citations omitted). Ms. Squires does not challenge BOEC’s ability to prove that the service provided here is a recreational service, not an essential service, and thus there is no unfair bargaining advantage. Where the releasor fails to point to any other unfair circumstances surrounding the exculpatory agreement, the third factor is satisfied. See Mincin, 308 F.3d at 1111. As in Chadwick, Mrs. Squires signed the Release at home in Kansas, in advance of the ski trip. 100 P.3d at 469. Mrs. Squires signed the Release voluntarily. There is no suggestion that Mrs. Squires is not competent. It is clear that Mrs. Squires is a devoted parent who has zealously tried to enhance her daughter’s quality of life. There is no evidence that the services provided by BOEC could not have been obtained elsewhere. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at * 3 (“in assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere”) (citing Jones, 623 P.2d at 375). Mrs. Squires is experienced and familiar with liability releases [*27] in general. Ms. Squires has not demonstrated any other unfair circumstances surrounding the execution of the Release.

Finally, the court finds that the Release does not violate public policy. The adaptive recreational ski services provided by BOEC are recreational and not a matter of great public importance or practical necessity. The evidence does not indicate that the Release was entered into in any unfair manner. The Release does not exculpate BOEC from any duty in violation of public policy. The Release does not undermine any competing public policy. See Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *4. The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.” Colo. Rev. Stat. § 13-22-107(1)(a)(VI).

In sum, as the court finds no obvious disparity in bargaining power between the parties to the Release, that the parties’ intentions are clear and unambiguous, that the agreement was fairly entered into, and that the Release does not violate [*28] public policy, the court concludes that the Release is valid. See Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *6 (Colo. App. Mar. 31, 2011) (determining exculpatory agreement was valid because it “did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims”); Chadwick, 100 P.3d at 469-70 (enforcing exculpatory agreement releasing organizer of hunting trip from injuries sustained when he was thrown off mule, where exculpatory agreement unambiguously expressed the intent of the parties, was not unfairly entered into, injured party read agreement and understood he was executing a release of liability when he signed it, and agreement violated no duty to the public). Ms. Squires has released “BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action” from any claims resulting from negligence in conjunction with a BOEC activity.

C. Material Misrepresentation and Fraud in the Inducement

Ms. Squires argues that BOEC’s Motion for Summary Judgment must be denied because the Release is voidable based on material misrepresentation and fraud in [*29] the inducement. “A release is an agreement to which the general contract rules of interpretation and construction apply.” Chase v. Dow Chemical Company, 875 F.2d 278 (10th Cir. 1989) (citations omitted). “Like any contract, a release procured through fraud can be set aside.” Id.

Ms. Squires argues that BOEC fraudulently misrepresented in the Greetings Letter, on the reverse side of the Release, that all of its “activities are conducted in a manner consistent with the highest standards, as defined by the Association of Experiential Education (“AEE”),” when in fact there were no written standards for the adaptive ski program, and that the program was accredited by AEE when in fact the program was not so accredited. (See Doc. # 61-1 at 4 of 5). There is no statement regarding AEE standards or accreditation in the Release itself. (See Doc. # 52-1). BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. (See Doc. # 84-6 at 2 of 2). BOEC’s Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive [*30] ski program that Ms. Squires attended. (See Deposition of Jeffrey Inouye (Doc. # 84-2) at 2 of 2). Ms. Squires argues that based on the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.” (Reply Memorandum Brief Regarding Misrepresentation (Doc. # 84) at 4 of 11). Ms. Squires argues that Mrs. Squires relied on these claimed misrepresentation when she signed the Release on January 13, 2008.

In addition to its adaptive ski program, BOEC has a department that operates its wilderness program, which facilitates year-around programming for people with disabilities and special needs. (See Doc. # 89-3 at 3 of 3). The Greetings Letter is sent to participants involved in a wilderness course, who may or may not participate in the ski program. (See Doc. # 89-1 at 2-5 of 5). Groups interested in a wilderness course, which includes lodging and activities other than skiing, such as a ropes course, and climbing wall, will complete paperwork through the wilderness program. Id. Each program has its own separate [*31] set of forms to be completed by participants. Id. Groups who are interested only in skiing at BOEC will complete paperwork for the ski program. (See Doc. # 89-1 at 2-5 of 5). Ms. Squires was a student of BOEC as a participant of the Camp Fire USA group (“Camp Fire”). (See Doc. # 61-1 at 1-2 of 5). For its trip to Colorado, Camp Fire contracted with the wilderness program for a five-day wilderness course that included transportation and lodging in addition to skiing. (See Wilderness Course Contract (Doc. # 89-2) at 1-2 of 2). The Release and Greetings Letter were from the wilderness program. (See Doc. # 89-1 at 3 of 5).

While BOEC’s adaptive ski program did not have its own written ski lesson policies and procedures at the time of the Accident, it has at all times trained its instructors and followed the standards for adaptive skiing set forth by the PSIA, the governing body that establishes national standards for skiing. (See Doc. # 89-3 at 2 of 3). BOEC’s adaptive ski program used the PSIA Core Concepts book, the Adaptive Ski Program Manual, and the Alpine Technical Manual. (See id.; see also Doc. # 84-5).

“To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation [*32] of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.” Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010) (citing CJI-Civ. 4th 19:1 (1998)). See also J.A. Walker Co., Inc. v. Cambria Corp., 159 P.3d 126, 132 (Colo. 2007) (applying same elements to a fraudulent inducement claim). “Implicit within these elements are the requirements that the claimant demonstrate that it relied on the misrepresentation and that its reliance was justified under the circumstances.” Loveland Essential Group, LLC v. Grommon Farms, Inc., 251 P.3d 1109, 1116 (Colo. App. 2010) (citation omitted).

“The misrepresentation must be made with the intent to deceive and for the purpose of inducing the other party to act on it, and there must be evidence that the other party did in fact rely on it and was induced thereby to act to his injury or damage.” Club Valencia Homeowners Ass’n v. Valencia Assocs., 712 P.2d 1024, 1026-27 (Colo. App. 1985) [*33] (citation omitted). Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.

Reasonable and justifiable reliance is also required for a claim of fraudulent misrepresentation. Ivar v. Elk River Partners, LLC, 705 F. Supp. 2d 1220, 1238 (D. Colo. 2010). See also Sheffield Services Co. v. Trowbridge, 211 P.3d 714, 725 (Colo. App. 2009) (“a necessary element to all fraud actions is that the plaintiff justifiably relied on the misrepresentation or the nondisclosure”); Williams v. Boyle, 72 P.3d 392, 399 (Colo. App. 2003) (element of fraudulent misrepresentation is “the right or justification in relying on the misrepresentation”).

The evidence fails to demonstrate justifiable reliance by Mrs. Squires on the statements regarding AEE standards and accreditation in the Greetings Letter. The Greetings Letter emphasized the importance of reading and signing the Release on the reverse side. (See Doc. # 84-1 at 1 of 1). The Release explains that skiing involves a risk of serious [*34] bodily injury and that it is impossible to eliminate all risk. (See Doc. # 52-1). Despite the emphasis on the importance of reading and signing the Release, Mrs. Squires did not take particular note of the language in the Release. “I can only say I assume I read it. I have no recollection of reading it before I signed it.” (See Doc. # 84-4 at 6 of 7). Ms. Squires propounds that Mrs. Squires paid close attention to the Greetings Letter but did not place any importance on the Release itself, which contained the exculpatory provisions. (See id. (the Release contained “the same identical verbiage that is in every single risk and release of liability that I’ve signed for 20 years on Kimberly’s behalf for everything that she has ever participated in. So I did not put any more credence towards this particular document than I did anything else.”)). Mrs. Squires had substantial knowledge about the ski trip, learned from Camp Fire’s past experiences, communications with Ms. Breier, and BOEC’s written materials. (See Doc. # 84-4 at 2-7 of 7). The evidence does not support a finding that Mrs. Squires justifiably relied on the information in the Greetings Letter regarding the AEE while taking no [*35] notice of the exculpatory language in the Release she signed. The evidence shows that Mrs. Squires did not make the decision for Ms. Squires to participate in the ski trip in reliance on the alleged misrepresentations. The court concludes that Ms. Squires has not created a genuine issue of fact for trial on the element of justifiable reliance on the Greetings Letter. For this reason also, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.

D. Willful and Wanton Conduct

The parties acknowledge that the Release cannot bar civil liability for gross negligence. See Colo. Rev. Stat. § 13-22-107(4) (“Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.”); Chadwick, 100 P.3d at 467 (“In no event will an exculpatory agreement be permitted to shield against a claim of willful and wanton negligence.”).

“Although the issue of whether a defendant’s conduct is purposeful or reckless is ordinarily a question [*36] of fact, if the record is devoid of sufficient evidence to raise a factual issue, then the question may be resolved by the court as a matter of law.” Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). See also Terror Mining Co. v. Roter, 866 P.2d 929, 935 (Colo. 1994) (summary judgment proper even when willful and wanton conduct alleged, where facts are undisputed and do not establish or imply willful conduct); United States Fire Insurance Co. v. Sonitrol Management Corp., 192 P.3d 543 (Colo. App. 2008) (“Ordinarily, determining whether a defendant’s conduct is willful and wanton is a question of fact.”) (citation omitted).

“Gross negligence is willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Hamill, 2011 Colo. App. LEXIS 495, 2011 WL 1168006 at *9 (citing Forman, 944 P.2d at 564. “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” Forman, 944 P.2d at 564. See also Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007) (“Conduct is willful and wanton if it is a dangerous course of action that is consciously [*37] chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”) (internal quotation marks and citation omitted); United Blood Servs. v. Quintana, 827 P.2d 509, 523 n. 10 (Colo. 1992) (“Willful misconduct consists of conduct purposely committed under circumstances where the actor realizes that the conduct is dangerous but nonetheless engages in the conduct without regard to the safety of others.”) (citation omitted); Safehouse Progressive Alliance for Nonviolence, Inc. v. Qwest Corporation, 174 P.3d 821, 830 (Colo. App. 2007) (“Willful and wanton behavior is defined as a mental state of the actor consonant with purpose, intent, and voluntary choice.”) (internal quotation marks and citation omitted).

Based on her expert witness, Mr. Gale’s, opinion, Ms. Squires argues that BOEC acted recklessly, precluding application of the Release. Mr. Gale, a snow sports safety consultant with 43 years of ski safety training and experience, concludes that BOEC acted recklessly based on: (1) “an inherently unsafe bi-ski program administered and conducted by BOEC,” (2) BOEC instructor Jennifer Phillips’ selection of inappropriately difficult [*38] terrain and failure to follow proper lesson plan procedures, and (3) BOEC volunteer Jim Trisler’s failure to “do his job as a blocker, look-out . . . .” (See Doc. # 56-4 at 9-11 of 11; Doc. # 56-5 at 1-2 of 8; Doc. # 88-8 (Curriculum Vitae)).

In his Expert Report, Mr. Gale concludes:

The incident was the cumulative result of an inherently unsafe bi-ski program administered and conducted by BOEC. It knew or should have known that its “word of mouth” rather than written safety protocols and procedures were ineffective and substantially enhanced the risk over and above the inherent risks of skiing to Miss Squires. It purposely chose a dangerous course of training, supervision, and bi-ski program implementation. In doing do it created a strong probability that this circumstance was [a] predictable incident that was bound to happen sooner or later. It failed to address fundamental safety procedures even though it appears to do so in its other adaptive program offerings. . . This further demonstrates BOEC’s willful, reckless, and comprehensive disregard for Miss Squire’s safety.

(Doc. # 56-5 at 1 of 8, ¶ 5.2). Mr. Gale also concludes that the conduct of BOEC’s instructor, Ms. Phillips, was [*39] intentional, willful, and reckless.

The conduct of BOEC’s instructor Jennifer Phillips fell well below the PSIA standards. As a PSIA certified instructor, she was or should be well aware of the policies, procedures, and standards for bi-ski instruction particularly terrain selection. The plethora of written PSIA instructional methodology and information addresses skill based instructional activities with safety as a fundamental priority and duty. She intentionally made the decision to abandon the PSIA lesson plan and sequential format for bi-ski instruction. This conduct demonstrates intentional, willful, and reckless disregard for Miss Squire[s’] safety.

(Doc. # 56-5 at 1 of 8, ¶ 5.3). Mr. Gale further identifies reckless conduct with regard to the use of slip knots to ensure that the bi-ski would remain tethered to the BOEC instructor. He concludes that:

Defendant BOEC was or should have been fully aware of the dangers of a detached bi-ski caused by the reckless choice not to properly utilize or dangerously utilize BOEC’s own slip knot rule powerfully hitting some object, person, or a tree. The safety procedures, training, and program risk management did not match the risk nor fully [*40] address the safety requirements dealing with a detached and out of control bi-ski loose on the slope. The foreseeable consequence was a serious injury to the student, the public, or both. The entities recklessly disregarded Miss Squires[‘] safety and willfully created this higher than normal risk for Miss Squires. There were no prudent or careful precautions taken to reduce or lessen the risk of this predictable and foreseeable incident.

(Doc. # 56-5 at 2 of 8, ¶ 5.5).

Mr. Bil Hawkins of Knott Laboratories also provided an expert report. (See Doc. # 56-2). Mr. Hawkins has a B.S. in civil engineering and is a certified Level II Rope Access Technician. (See Doc. # 88-5). Mr. Hawkins examined the safety knot, or slip knot, used to fasten the bi-ski’s tether to BOEC instructor Ms. Phillips. This knot was the only mechanism that prevented the downhill movement of the bi-ski. Mr. Hawkins concludes in his expert report:

Based upon Knott Laboratory’s inspection, the available evidence, and this engineer’s education, training, and experience, the following conclusions have been reached within a reasonable degree of engineering certainty:

o Ms. Phillips was not certified to [i]nstruct students on [*41] a bi-ski device at the time of Ms. Squires[‘] accident on February 13, 2010

o BOEC knew or should have known that Ms. Phillips was not certified to instruct participants on a bi-ski device at the time of Ms. Squires[‘] accident on February 13, 2010

o Ms. Phillips did not follow BOEC’s written policy by providing two independent means of anchor when providing sole support to a participant on a rope device

o The safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly

(Doc. # 56-2 at 11 of 11).

There is thus some evidence in the record that it may have been reckless for Ms. Phillips to take Ms. Squires on Cashier, a blue run, on the day of the Accident. Ms. Squires was a blind, first-time skier strapped to a bi-ski with no means to control her own speed or direction. It was BOEC policy to start such a student on a green run. (See Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2). But see Deposition of Stanley Gale (Doc. # 90-5) at 2 of 2 (“Q: Are you saying — are you saying that it’s wrong to have an adaptive bi-skier on Cashier run? A: No.”); Expert Report of Ruth Ann DeMuth (Doc. # 100-5) at 5 of 6 [*42] (BOEC employee Jennifer Phillips “did not compromise the safety of Miss Squires by going up the Beaver Run Lift to Cashier.”).

The court cannot conclusively determine based on the evidence before it whether there was a purposeful or conscious failure to use a slipknot or tie the properly. The use of a slipknot with a bi-ski is the established BOEC policy. (See Deposition of Jennifer L. Phillips (Doc. # 100-3) at 2-3 of 3; Deposition of Paul E. Gamber (Doc. # 100-4) at 4 of 4). Witnesses who were asked agreed that it could be reckless to conduct a bi-ski lesson without a properly-tied slip knot tethering a bi-ski with fixed outriggers. (See Deposition of Jennifer L. Phillips (Doc. # 90-8) at 2 of 2; Deposition of Peter W. Axelson (Doc. # 97-9) at 3 of 3; Deposition of Paul E. Gamber (Doc. # 97-11) at 2 of 2; (Doc. # 90-7) at 2 of 2; Deposition of Ruth Ann DeMuth (Doc. # 90-6) at 2 of 2; Deposition of Patrick B. Kelley (Doc. # 90-4) at 2 of 3). Mr. Hawkins concludes that “[t]he safety knot Ms. Phillips reportedly tied directly against the skin of her wrist would not have slipped off her arm had it been tied properly.” (Doc. # 56-2 at 11 of 11).

This evidence and these conclusions by the [*43] expert witnesses could demonstrate reckless, grossly negligent, and willful and wanton acts and omissions. A jury could conclude there was purposeful conduct committed recklessly with conscious disregard for the rights and safety of Ms. Squires. The evidence, viewed in a light most favorable to Ms. Squires, might lead a reasonable jury to conclude that BOEC was conscious of its conduct and the existing conditions and knew there was a strong probability that injury to Ms. Squires would result. The court concludes that Ms. Squires is properly afforded an opportunity to present to a jury evidence of the alleged willful and wanton, reckless, or grossly negligent acts or omissions. It will best be determined at trial, after the submission of Ms. Squires’ case in chief, whether BOEC acted recklessly.

The court addresses separately Ms. Squires’ argument that BOEC volunteer, Mr. Trisler’s, “acts and omissions” were “more than mere recklessness.” (See Doc. # 56 at 14 of 19). Mr. Gale concludes that

[t]he conduct of BOEC trained Jim Trisler fell below the duty of a blocker. He did absolutely nothing to prevent the collision or intervene prior to the collision between Jennifer Phillips and Michael [*44] Goodwin. He failed in his essential duties which were to prevent the collision, or at the very least, to reduce the severity of the consequences.

(See Doc. # 56-5 at 2 of 8, ¶ 5.4). See also Doc. # 56-4 at 10 of 11 (“he did not do his job as a blocker, look-out, or make his presence known to Michael Goodwin. Apparently, he did not hear or see Michael Goodwin coming down out of control before the powerful impact. He was not vigilant nor did he fulfill his duty and responsibility to protect and warn. It seems that he was not on the look-out as he should have been or he would have likely seen Michael Goodwin skiing too close, out of control, and headed for Jennifer Philips and Miss Squires[‘] bi-ski device.”). Ms. Squires argues that ‘[a]lthough Mr. Gale does not specifically use the word reckless in describing Mr. Trisler’s acts and omissions, his analysis and description describe more than mere recklessness.” (Response (Doc. # 56) at 14 of 19). The court disagrees. Colorado law defines negligence as “a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect [*45] . . . others from bodily injury, . . .” CJI-Civ. 9:6 (2011). The evidence in the record, including Mr. Gale’s opinion, amounts to no more than negligence by Mr. Trisler. As to Mr. Trisler, there is insufficient evidence to create a genuine issue of material fact that he acted willfully and wantonly, that is, that he consciously chose a dangerous course of action with knowledge of facts that, to a reasonable mind, created a strong probability that injury to Ms. Squires would result. The Release thus bars Ms. Squires’ claim based on Mr. Trisler’s conduct.

Accordingly, IT IS ORDERED that:

1. Defendant BOEC’s Motion for Summary Judgment (filed December 3, 2010) (Doc. # 52) is GRANTED IN PART AND DENIED IN PART.

2. The Fifth Claim for Relief in the Second Amended Complaint (Doc. # 13) shall proceed against Defendant Breckenridge Outdoor Education Center only on the alleged willful and wanton, reckless, or grossly negligent acts or omissions.

3. The court will hold a Telephonic Status Conference on Thursday December 8, 2011 at 8:30 a.m. Counsel for the parties shall create a conference call and then telephone the court at 303-844-2117 at the scheduled time.

DATED at Denver, Colorado, this 8th [*46] day of November, 2011.

BY THE COURT:

/s/ Craig B. Shaffer

United States Magistrate Judge

Leitner-Poma will be building the new WiFi enabled Gondola at Vail

Posted: February 2, 2012 | Author: Recreation Law | Filed under: Ski Area | Tags: Colorado, Gondola, Grand Junction, Leitner-Poma, Outdoor recreation, ski area, skiing, Vail, Vail Colorado, Wi-Fi | Leave a comment

Image via Wikipedia

Good job Tom!

Leitner-Poma just announced it got the contract to build the new gondola at the Vail Ski area. See Leitner-Poma to build the state-of-the-art gondola in Vail to read the announcement. See Vail installing new Gondolas for the 50th Anniversary with WiFi for more information about the Gondola and Vail’s decision to put the new lift in.

Heated seats, Kenwood radio and Wi-Fi will be in each gondola cabin. Where else but Vail would this even be considered! “Like nothing on earth” will take on a new meaning.

The gondola will be ready for the 2012-2013 ski season which will also be Vail’s 50^th anniversary.

What do you think? Leave a comment.

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WordPress Tags: Leitner,Poma,WiFi,Gondola,Vail,area,announcement,Gondolas,Anniversary,information,decision,Kenwood,radio,cabin,Where,earth,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Chair,Lift,Grand,Junction

Skier/Boarder Fatalities 2011-2012 Ski Season

Posted: February 1, 2012 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: California, Ski, Ski Resort, Sports, Winter sport | Leave a comment

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

If this information is incorrect or incomplete please let me know. This is up to date as of January 15, 2012. Thanks.

Date

Resort

State

Run

Run Difficulty

Doing What

Age

Skier Ability

Ski/ Tele /Boarder

Cause of Death

Helmet

Reference

11/18/2011

Vail

Gitalong Road

Beginner

Skier

Yes

http://rec-law.us/rBcn7A

11/18/2011

Breckenridge

Northstar

Intermediate

hitting a tree while snowboarding

Expert

Boarder

suffered massive internal injuries

Yes

http://rec-law.us/rBcn7A

11/27/2011

Mountain High ski resor

Chisolm trail

Beginner

boarding

Beginner

Boarder

internal injuries

Yes

http://rec-law.us/uGuW17

12/18/11

Sugar Bowl

Mt Lincoln Lift

fell off lift

Expert

Skier

http://rec-law.us/viAqCR

1/4/12

Ski Ward

Chair Lift

Fell off lift

Expert

Skier

http://rec-law.us/y3sOtx

1/11/12

Ski Apache

CapitanSlope

Intermediate

fell

http://rec-law.us/zdfQ4k

1/12/12

Sugarloaf

Lower Timber

Beginner

hit tree

Yes

http://rec-law.us/yNHkuc

1/14/12

Silverton

Riff Run

Expert

fell and slid 1500′

Expert

Skier

http://rec-law.us/zcw6MB

What do you think? Leave a comment.

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New EcoGroomer is going into production

Posted: January 31, 2012 | Author: Recreation Law | Filed under: Ski Area | Tags: Groomer, snow grooming, Snowcat | Leave a comment

Snow groomer claims increase in coverage and a 35% reduction in fuel costs.

The groomer will be built by several different companies and the components will be put together someplace in the Midwest. The Ecogroomer company is based in Denver and expects to deliver the first Ecogroomer in the Rocky Mountains.

Basically the difference is not he groomer by the grooming device. The Ecogroomer has outlying grooming implements on either side of the normal one towed behind the snowcat giving it is greater terrain coverage.

See Ecogroomer goes into production. To see the company website go to Ecogroomer.

What do you think? Leave a comment.

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

WordPress Tags: EcoGroomer,production,coverage,reduction,components,Midwest,Denver,Rocky,Mountains,difference,device,terrain,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Snowcat,groomer

It's not what I write, It's what you Learn

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Colorado Sees Skier Visits Recede for 2011/12 Season

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This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Several Corrections have been made to items reported earlier.

If this information is incorrect or incomplete please let me know. This is up to date as of April 15, 2012. Thanks.

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This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

If this information is incorrect or incomplete please let me know. This is up to date as of March 15, 2012. Thanks.

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Releases work for future injuries and for injuries that may have all ready occurred.

Summary of the case

So Now What?

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Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Superior Court of New Jersey, Appellate Division

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Ten minute survival in western wet snow is shown by the study.

This study says that avalanche survival time is probably only Ten (10) minutes.

So?

For other articles on Avalanches see:

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Costs do not include attorney fees

Summary of the case

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Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275

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This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

If this information is incorrect or incomplete please let me know. This is up to date as of February 15, 2012. Thanks.

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Nearly Half of Winter Sports Participants Recommend

Products or Brands to Peers

The research also indicated that among those who ever participate in winter sports, 74 percent use social media sites. Interestingly enough, of that 74 percent, 84 percent utilize the platform to follow brands.

Harris Interactive conducted this survey online among 2,292 adult Americans ages 18 and older between December 19 and 21, 2011. The research was spearheaded by the Maryland-based sports marketing agency, IMRE Sports.

Coupons and Giveaways atop the type of information Americans prefer from brands via social media channels

Among those who use social media sites and who ever participate in winter sports, coupons (49 percent) and giveaways (41 percent) are the most popular types of information users would prefer to receive from the brands they follow or connect with via social media sites.

The research revealed the following statistics among adult Americans who used social media sites, as well as those who used social media sites and ever participated in winter sports:

Types of Information / Use social media sites / Use social media sites and participate in winter sports

One-on-one conversations and social networking are the most prominent ways in which winter sports participants recommend their favorite winter sports products/brands to their peers

Of the 21 percent of adult Americans who ever participate in winter sports, the research study revealed that 47 percent recommend any of their favorite winter sport products/brands to their peers. Specifically:

· 33 percent use one-on-one conversation (e.g., in person, phone, email, online chat)

· 11 percent use social networking sites (e.g., Facebook, Twitter, Google+)

· 7 percent add their opinion to a review site

· 5 percent blog their recommendations

· 5 percent post a recommendation to an online forum

· 5 percent use video or photo sharing websites (e.g., YouTube, Flickr) to share their recommendation

· 2 percent use some other method to make a recommendation to their peers

Teams and athletes lead winter sports related groups that Americans follow via social media channels

The types of winter sports related groups adult Americans specifically follow using social media channels (e.g., Facebook, Twitter) reveal a range of important trends that brands can leverage via advertising.

The study revealed that 62 percent of adult Americans use social media sites. Among that 62 percent, the research showcased which winter sports-related groups Americans follow or connect with via social channels:

· Teams and athletes led the category (each at 7 percent)

· 5 percent follow news media outlets

· 4 percent follow winter sports events (e.g., Winter X Games, Winter Olympics)

· 4 percent follow apparel manufacturers