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Montreat College Virtuoso Series 2 Day Outdoor Recreation Management, Insurance & Law Program

2 packed Days with information you can put to use immediately. Information compiled from 30 years in court and 45 years in the field.get_outside_12066-2

Whatever type of Program you have, you’ll find information and answers to your risk management, insurance and legal questions.

CoverYou’ll also receive a copy of my new book Outdoor Recreation Insurance, Risk Management, and Law

Get these Questions Answered

What has changed in the law Concerning Releases? What states still allow releases and which ones do not. What changes have been made in how releases are written? How can you make sure your release is not as affected by these changes?

Everyone is excited about Certificates of Insurance. Why this excitement is not valid and why most of them don’t work. What must you do to make a certificate of insurance work for your program?

What is an assumption of risk document and why are they important. How can your website be used to prove assumption of the risk.

How should you write a risk management plan that does not end up being used against you in court?

How do you handle an accident so it does not become a claim or a lawsuit.

Put February 24 & 25th on your Calendar Now.

Course Curriculum

1.    Assumption of the Risk

1.1. Still a valid defense in all states

1.2. Defense for claims by minors in all states

1.3. Proof of your guests assuming the risk is the tough part.

1.3.1.   Paperwork proves what they know

1.3.1.1.       Applications

1.3.1.2.       Releases

1.3.1.3.       Brochures

1.3.2.   The best education is from your website

1.3.2.1.       Words

1.3.2.2.       Pictures

1.3.2.3.       Videos

2.    Releases

2.1. Where they work

2.1.1.   Where they work for kids

2.2. Why they work

2.2.1.   Contract

2.2.2.   Exculpatory Clause

2.2.3.   Necessary Language

2.2.4.   What kills Releases

2.2.4.1.       Jurisdiction & Venue

2.2.4.2.       Assumption of the Risk

2.2.4.3.       Negligence Per Se

2.2.4.4.        

3.    Risk Management Plans

3.1. Why yours won’t work

3.2. Why they come back and prove your negligence in court

3.2.1.   Or at least make you look incompetent

3.3. What is needed in a risk management plan

3.3.1.   How do you structure and create a plan

3.3.2.   Top down writing or bottom up.

3.3.2.1.       Goal is what the front line employee knows and can do

4.    Dealing with an Incident

4.1. Why people sue

4.2. What you can do to control this

4.2.1.   Integration of pre-trip education

4.2.2.   Post Incident help

4.2.3.   Post Incident communication

You can decided how your program is going to run!blind_leading_blind_pc_1600_clr

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Put the date on your calendar now: February 24 and 25th 2017 at Montreat College, Montreat, NC 28757

$399 for both days and the book!

For more information contact Jim Moss rec.law@recreation.law.com

To register contact John Rogers , Montreat College Team and Leadership Center Director, jrogers@montreat.edu (828) 669- 8012 ext. 2761

 

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Plaintiff failed to prove her injuries were due to the construction of the water park slide, and she also assumed the risk.

An injury is not enough; you must be able to relate your injury to the exact cause, and that cause must be based on a failure to do or not do a duty by the defendant.

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

State: Maryland, United States District Court for the District of Maryland

Plaintiff: Beth Stolting, et al.

Defendant: Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: Defendant

Year: 2001

The plaintiff and a boyfriend, who eventually became her husband, went to the defendant’s water park. She had been to water parks 15-20 times over the years, and ridden water slides hundreds of times. However, she had never visited this park.

At the entrance of the park was a sign which warned of the risks of the park.

The attractions contained within the Splash Mountain Waterpark are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.

The plaintiff admitted that she read the sign when she entered the park. After entering the park the plaintiff went on several water slides before going down the slide that injured her. Before riding that slide, she watched others go down the slide.

There were no warning signs posted at the slide. Nor were there instructions on how to ride the slide. As the plaintiff prepared to go down the slide, she placed herself in the positions; she had seen other riders with her knees bent about 40 degrees.

After exiting the slide, she hit the bottom of the pool. The plaintiff was assisted out of the pool by a lifeguard who suggested she go to a hospital. The plaintiff transported herself to the hospital. Eventually, she was diagnosed with several broke vertebrae, which required several months of recovery.

The plaintiff sued for her injuries.

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

Under Maryland law, to prove negligence the plaintiff must prove:

Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty and the harm suffered; and 4) that damages were sustained.

The plaintiff argued that the defendant had notice of the dangerous condition because two prior claims had been filed for similar injuries on the same water slide. The plaintiff then claimed that notice of those injuries created a duty on the part of the defendant to post warning signs.

The next issue was the standard of care owed by the defendant to the plaintiff. The rule in Maryland is a water park owes business invitees a duty to use ordinary care.

The general rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.”

The plaintiff then argued the defendant breached its duty to provide ordinary and diligent care by not posting warning signs informing patrons of the danger of the slide.

The plaintiff failed on this claim because she presented no admissible evidence that the angle of the slide was too steep. The plaintiff relied upon the opinion of the other injured patrons on the same slide. “The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.”

The park had the slide evaluated after the prior injuries by a licensed professional from the state. Since the plaintiff could not present any evidence of the dangerousness of the slide, the review by the professional was sufficient to defeat this claim. “There is no evidence adequate to establish that a pertinent standard of care required additional warnings.”

On top of that, the plaintiff had read the warnings at the entrance of the park which placed the plaintiff on notice of the dangerous condition, required by the duty owed to business-invitees.

The plaintiff hired an expert witness to assist in her case; however, the expert’s opinion was ruled inadmissible in a prior motion. Consequently, she could not provide any evidence to support here claim that the defendant breached its duty by not posting instructions on how to ride the slide.

Even if her expert’s opinion had been admissible, there was no evidence posted that the way the plaintiff rode the slide was the cause of her injury. There was no connection between riding the slide and riding the slide a specific way that might have caused or would not have caused her injuries.

The final issue was the depth of the pool at the bottom of the slide. Again, she could offer not expert testimony to support that claim. The engineer from the state had inspected the pool and found that its depth was adequate. “There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently pro-vided too shallow an exit pool.”

The court then found the plaintiff assumed the risk of her injuries. In Maryland, assumption of the risk is a complete bar to a negligence claim. To prove assumption of the risk the defendant must prove:

To establish an assumption of risk defense, the Defendants have the burden of demonstrating that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger.

To determine if the plaintiff knew, appreciated and voluntarily confronted the risk, the court used an objective standard.

An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.”

The defendant met this standard based on the plaintiff’s experience in riding other water slides and watching people ride this slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .

Additionally, the plaintiff’s a person of normal intelligence would have understood the risks of this slide. “In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.”

Finally, the plaintiff voluntarily confronted the risk.

After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”

The court found that any reasonable jury would find the plaintiff assumed the risk.

The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.

In a rare issue in a decision, the court found two complete and valid defenses to the plaintiff’s claims. Normally, courts only find one reason to support or over throw a decision and stop there.

So Now What?

A lot of this win for the defendant was based on three things. The plaintiff admitted having gone to water parks and down water slides before, she admitted reading the warning sign at the entrance, and she watched other riders before going down the slide herself. That proved she has knowledge and appreciation of the risk and voluntarily assumed the risk.

The second issue was the defendant hired an expert after just a few incidents to check out its slide. Again, acting prior to the lawsuit was better and probably a lot cheaper in the long run to see if the problem was real or isolated incidents.

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Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

Beth Stolting, et al., Plaintiffs vs. Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al, Defendants

CIVIL ACTION NO. MJG-00-299

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2001 U.S. Dist. LEXIS 26572

August 24, 2001, Decided

August 24, 2001, Filed

SUBSEQUENT HISTORY: Motion granted by Stolting v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26573 (D. Md., Aug. 24, 2001)

Affirmed by Stolting v. Jolly Roger Amusement Park, Inc., 37 Fed. Appx. 80, 2002 U.S. App. LEXIS 11925 (4th Cir. Md., 2002)

CORE TERMS: slide, pool, exit, patrons, ride, riding, water slides, warning, bottom, summary judgment, amusement park, feet, legs, intelligence, splash, depth, posted, notice, bent, risk of injury, moving party, reasonable jury, appreciated, disclaimer, non-moving, shallow, warned, owed, dangerousness, negligently

COUNSEL: [*1] For Beth Stolting, Plaintiff: Paul D Bekman, LEAD ATTORNEY, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD; Andrew M. Moskowitz, William D. Sanders, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Rohan Cassells, Plaintiff: Andrew M. Moskowitz, LEAD ATTORNEY, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Jollyroger Amusement Park, Inc., doing business as Splash Mountain Water Park, Defendant: J Paul Mullen, LEAD ATTORNEY, Phoenix, MD; Kathleen M Bustraan, Ward and Bustraan LLC, Towson, MD.

JUDGES: Marvin J. Garbis, United States District Judge.

OPINION BY: Marvin J. Garbis

OPINION

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

The Court has before it Defendants’ Motion for Summary Judgment and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary.

I. BACKGROUND

A. Plaintiff’s Injury on the Shotgun Slide

On June 2, 1999, Plaintiffs Beth Stolting (hereinafter “Stolting”) and Rohan Cassells 1 (hereinafter “Cassells”), went to the Jolly Roger Amusement Park/Splash Mountain Park (hereinafter the “Park”) in Ocean City, Maryland. Stolting had been to water parks on “fifteen to twenty ” separate occasions and had been on water slides “hundreds of times,” [*2] but had never visited the Park. Stolting Dep. 29.

1 Now her husband and a plaintiff in the case.

At the entrance of the amusement park, a prominent disclaimer was posted. The sign read as follows:

The attractions contained within the Splash Mountain Water[]park are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.

Stolting read the sign upon entering the amusement park. She went on several water slides before arriving at the “Shotgun” 2 water slide (hereinafter “slide” or “ride”), which is the slide at issue in the instant case. Stolting Dep. 37. There were no posted instructions on how to ride the slide or any signs warning of the possible dangers posed by the slide. However, there were signs containing height restrictions, signs banning the use of inner tubes, and depth markers displaying the depth of the entry pool 3. Prior to riding the slide, Stolting watched others go down it. As Stolting prepared to go down the slide, she imitated the body positioning of those people who had previously been on the slide. With her knees bent at a “forty degree angle,” Stolting [*3] descended down the slide, hitting the bottom of the exit pool with her feet. Stolting Dep. 39- 40. Stolting does not remember how she landed or the positioning of her legs as she hit the water. Stolting Dep. 40- 41. However, she does allege that she felt her feet “hit the bottom of the pool . . . immediately” upon entering the exit pool. Stolting Dep. 44.

2 Also known as “the Cannonball Slide.”

3 The pool of water at the bottom of the slide is also referred to as the “entry” or “splash” pool.

At that point, Stolting lost her breath. She went to the side of the exit pool and was helped out of the pool and into a chair by lifeguards. At that time, Stolting complained of pain in her back, feet, and legs. The lifeguards gave Stolting ice and suggested that she should go to a hospital.

After resting for ten minutes, Stolting asked Cassells to take her to the Atlantic General Hospital in Ocean City, Maryland. 4 Stolting told the attending physician at the hospital that she was experiencing back and heal pain. The doctor took x-rays of Stolting’s heals, and then “told [her that] if [she] could walk out on crutches that [she] could leave.” 5 [*4] Stolting Dep. 50. Stolting was not given any medication.

4 Stolting never requested an ambulance.

5 No diagnosis was given.

During the next few days, she continued to rest and take Advil. Approximately one week later, Stolting was still experiencing pain and so, she decided to see Dr. Fischer (hereinafter “Fischer”). Fischer diagnosed Stolting with three fractured vertebrae. Stolting was told to remain on Advil and to continue bed rest. Fischer stated that it would take at least six months for her back to heal.

B. Prior Injuries on the Shotgun Slide

In recent years, several other patrons have complained of injuries allegedly sustained while riding the Shotgun slide. In 1997, Myron Custer (hereinafter “Custer”) reported a bruised heel from contacting the bottom of the exit pool of the Shotgun slide. Custer accused the Park of maintaining an unsafe ride.

In 1998, Michael Agnello Jr.(hereinafter “Agnello”), reported receiving injuries from riding the slide. Agnello Affi. After contacting the bottom of the exit pool, Michael complained of bruised legs and walking with a limp for a few days. The Park responded to complaints by stating that a licensed inspector from the Department of Labor Safety [*5] Inspection had investigated the slide and concluded that the slide met all of Maryland’s standards of safety.

C. Procedural Posture

In the Amended Complaint, Plaintiffs sue Defendants, Jolly Roger Amusement Park, Inc., Splash Mountain Water Park, and Bayshore Development Corporation. Plaintiffs allege that the Defendants’ negligence caused Stolting’s injuries. The Defendants deny negligence and assert an affirmative defense of the assumption of risk doctrine. By the instant motion, Defendants seek summary judgment on all claims.

II LEGAL STANDARD

In order for the Court to grant a motion for summary judgment, the evidence submitted to the Court must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact is one which might affect the outcome of the lawsuit under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The burden of proof weighs heavily on the moving party to establish that there is a lack of evidence in support of the non-moving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party [*6] must demonstrate to the Court that, viewing all of the evidence in the light most favorable to the non-moving party, a reasonable jury could not find in favor of the non-moving party. Anderson, 477 U.S. at 248. If the moving party has carried its burden of proof, then the non-moving party must produce more than a “mere scintilla of evidence in support of an essential element” in order to prevent the court from granting summary judgment. Id. at 251.

III DISCUSSION

A. Negligence claim

The Plaintiffs’ claim is based on three purported acts of negligence:

1) After being put on notice that patrons had been injured on the Shotgun slide, Defendants negligently failed to post signs warning of the dangerousness of the ride;

2) Defendants negligently failed to post instructions on how patrons should position their bodies when riding the slide; and,

3) Defendants negligently provided too shallow an exit pool at the bottom of the slide.

Under Maryland 6 law, Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty [*7] and the harm suffered; and 4) that damages were sustained. Yousef v. Trustbank Sav., F.S.B., 81 Md.App. 527, 536-36, 568 A.2d 1134 (1990).

6 This case is a diversity action. Since Stolting’s cause of action took place in Maryland, that state’s substantive law applies. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

1) Failure to Warn of Dangerousness

The Plaintiffs contend that the Park was on notice of the dangerousness of the Shotgun slide and should have posted signs warning of the dangers because other patrons had been injured on the slide. In support of their claim, Plaintiffs rely on prior injuries received by Custer and Agnello while they were on the Shotgun slide. The Plaintiffs maintain that notice of such injuries imposed a duty on the Park to post warning signs next to the ride.

The Plaintiffs argue that, as patrons of the Park, they were owed the highest standard of care. Tennant v. Shoppers Food Warehouse MD Corp., 115 Md.App. 381, 388, 693 A.2d 370 (1997), (citing Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 457, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989)). According to Casper, however, reasonable or ordinary care is the highest standard of care owed to a business invitee. 71 Md. App. at 457. “The general [*8] rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” Hawkins v. Southern Maryland Agricultural Fair Ass’n, 237 Md. 90, 94 (1964), 205 A.2d 286. An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. See Carlin v. Krout, 142 Md. 140, 147, 120 A. 232 (1923). Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.” Id. at 146.

At issue is whether the Park breached this duty to provide “ordinary and diligent care” by not posting signs warning of the dangerousness of the Shotgun slide. The Plaintiffs contend that reports of injuries sustained from former patrons who used the ride put the Park on notice that the slide was dangerous. The Plaintiffs base their claim particularly on the testimony of Custer, who was allegedly injured from riding the Shotgun slide in 1997.

When Custer reported his injuries to the Park, he insisted that the slide [*9] was dangerous because the angle of slope was too steep. Custer’s claim is unsubstantiated. Indeed, a licensed inspector from Maryland investigated the ride and found that the Shotgun slide met the safety standards set out by Maryland law. In any event, Custer is by no means qualified to provide admissible opinion testimony that the angle of the slide was “too steep.” Moreover, his opinion is not based on any scientific principles and is no more than his grossly unqualified ipse dixit.

Although the Plaintiffs correctly state that “Maryland has gone almost as far as any state in holding that meager evidence of negligence is sufficient to submit the case to a jury,” the opinion offered by Custer is not enough to take the issue to a jury. State v. Thurston, 128 Md. App. 656, 662, 739 A.2d 940 (1999). The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.

The Park did all it need have done by having the slide evaluated and vouched for by a licensed professional. Moreover, even if the Park were on notice of a dangerous condition posed by the Shotgun slide, the Park adequately warned [*10] patrons of the dangers of water slides by posting a disclaimer at the entrance of the amusement park. Stolting admitted in her deposition that she saw the disclaimer and that although she did not remember what it said, she read it. Stolting Dep. 90. The sign posted at the entrance of the Park expressly warned patrons that all rides within the Water park “carr[ied] with them an inherent risk of injury.” There is no evidence adequate to establish that a pertinent standard of care required additional warnings. Defs.’ Reply to Pls.’ Mot. for Summ. J. at 4.

2) No Posted Instructions

The Plaintiffs argue that the Park had an obligation to post instructions on how to ride the Shotgun slide. They offered Hanst’s purported “expert” opinion in support of this contention that patrons should have been told to keep their knees bent when riding down the slide 7. For the reasons stated in its Memorandum and Order re: Motion In Limine, issued this date, Hanst’s “expert” opinion has been held inadmissible.

7 Plaintiffs claim that riding with straight legs as opposed to bent knees caused the accident.

Moreover, even if Hanst’s opinion were considered, and there has been a duty to warn Plaintiff to keep her [*11] legs bent, the “negligent” failure to give the advice would be irrelevant. Stolting cannot establish causation. Stolting testified that her legs were bent at a “forty-degree angle” as she slid down the slide. Stolting Dep. 39-40. Thus, even if Plaintiffs had established a duty to instruct a breach of that duty, Plaintiffs cannot establish that the failure to instruct was a proximate cause of her injuries.

3) Depth of the Exit Pool

The Plaintiffs argue that the Defendants were negligent because the exit pool at the bottom of the Shotgun slide was too shallow. Plaintiffs base this claim on the opinion of Hanst who asserted that the exit pool should have been eight to ten feet. 8 As held in the Memorandum and Order re: Motion in Limine issued this date, Hanst’s expert opinion is inadmissible.

8 The exit pool is four to five feet deep. Hanst opined that it should have been four to five feet deeper than it was.

Additionally, both Olsen, the engineer, and the inspector from the Department of Inspection and Safety verified that the slide met the safety standards enforced by the state of Maryland. Even Hanst verified in his deposition that there was nothing in the inspector’s or the engineer’s [*12] reports with which he disagreed. In fact, Hanst’s own investigation of the slide, which consisted of riding the slide himself and watching others on the slide, did not produce any findings contradictory to those of the Defendants. Neither Hanst nor any of the people he watched on the slide were injured after making contact with the bottom of the exit pool.

There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently provided too shallow an exit pool. No reasonable jury could find that the Park was negligent by virtue of having an exit pool with a depth of “only” between four and five feet. 9

9 Indeed, a reasonable jury might even find that an eight to ten foot deep exit pool, as suggested by Hanst, could create a danger of drowning.

B, Assumption of Risk

The Court notes that even if Plaintiffs were able to establish that some negligence by Defendants caused the accident at issue, Defendants would still be entitled to summary judgment.

In Maryland, assumption of risk is an affirmative defense to a claim of negligence. ADM P’ship v. Martin, 348 Md. 84, 91, 702 A.2d 730 (1997). To establish an assumption of risk defense, the Defendants have the burden of demonstrating [*13] that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger. Id. at 90-91. An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Id. (quoting Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273 (1967)). Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Schroyer v. McNeal, 323 Md. 275, 283-84, 592 A.2d 1119 (1991).

1) Knowledge of the Risk of Danger

Stolting’s experience riding water slides establishes that Stolting had knowledge of the risks she faced when she chose to ride the Shotgun slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .” Prosser and Keeton on the Law of Torts, § 68, at 485-86 (5th ed. 1984). [*14] Moreover, Stolting in fact read the sign warning of the danger.

2) Appreciation of the Risk

If any person of normal intelligence in [one’s same] position would have understood the danger one faced, then one has appreciated the risk. Leakas v. Columbia Country Club, 831 F.Supp. 1231, 1236 (D. Md. 1993). The Court determined in Leakas that a “twenty-six year old, experienced swimmer,” had the “knowledge and appreciation of the risk of diving into shallow water because any person of normal intelligence in Leakas’ position must have understood the danger.” Leakas, 831 F.Supp. at 1236. Moreover in Casper, the court held that a stream covered over by a sheet of ice was an “open and obvious danger,” which every child could understand and appreciate. Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 458, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989).

In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.

Plaintiffs, relying on Maryland State Fair and Agricultural Society, Inc., argue that even though Stolting might have had knowledge of a risk based on her experience, she did not appreciate the risk posed by the Shotgun [*15] slide. Md. State Fair and Agric. Soc’y, Inc. v. Lee, 29 Md.App. 374, 380-81, 348 A.2d 44 (1964) (holding that racetrack owners’ negligence in leaving track sandy created a hidden and unforeseeable danger, which caused plaintiff’s injuries). The facts of Maryland State Fair and Agricultural Society, Inc., however, are distinguishable from those in the instant case.

In Maryland State Fair and Agricultural Society, Inc., the Court held that the dangers posed by the negligent conditions (in particular a sandy track) would not necessarily have been comprehended by “any person of normal intelligence in [the plaintiff’s] position.” 29 Md.App. at 381. In the instant case, there is no danger that a person of ordinary intelligence could not have fully appreciated. There is no evidence of any hidden or unforeseeable dangerous condition that caused Stolting’s injuries. In fact, the evidence establishes that the risk posed by the water slide was an open and obvious risk of which Plaintiff (and all other park patrons) was expressly warned. The risk could be, and should have been, appreciated by Stolting and any other reasonable person.

3) Voluntarily Confronted the Risk of Danger

Finally, the Defendants argue that [*16] in addition to knowing and appreciating the risk, Stolting voluntarily confronted the risk. The Defendants rely on the decision in Leakas in which the Court determined that Leakas assumed the risk when he chose to dive into a pool “of unknown depth.” 831 F.Supp. at 1237. Like the plaintiff in Leakas, Stolting “voluntarily encounter[ed] the danger.” Id. After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”

The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.

IV. CONCLUSION

For the foregoing reasons:

1. [*17] Defendants’ Motion for Summary Judgment is GRANTED.

2. Judgment shall be entered by separate ORDER.

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge

JUDGMENT ORDER

By separate Order issued this date, the Court has granted summary judgment to the Defendants.

Accordingly:

1. Judgment shall be, and hereby is, entered in favor of Defendants JOLLY ROGER AMUSEMENT PARK, INC. d/b/a SPLASH MOUNTAIN WATER PARK and Bayshore Development Corporation against Plaintiffs Beth Stolting and Rohan Cassells dismissing all claims with prejudice with costs.

2. Any and all prior rulings disposing of any claims against any parties are incorporated by reference herein.

3. This Order shall be deemed to be a final judgment within the meaning of Rule 58 of the Federal Rules of Civil Procedure

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge


Sorry Mr. 5 year old kid you bounced 3 times on the diving board that will be $250 or three days at hard labor

Ohio city contemplating making it criminal to violate swimming pool rules. (If criminal laws work, why do we have prisons?) A swimmer education program would be too much trouble and might save lifes?

There is no way to explain this, you just have to read the article. Avon drafts new pool rules with fines, charges and jail time as punishments.

How many double jumping five year olds do you think understand the difference between a rule and a law?

Since it is a law, and you are presumed to know and understand the law, the city does not even have to post signs about the rules. They can open the pool for free and just turn it into a source of revenue for the city.

Here are some of the rules from the article.

·         No Gum

·         No Cameras

·         No Coolers

·         Only one bounce permitted on the diving board

·         Weak or non-swimmers are to remain in shallow, shoulder height water. (We will identify you when we find you at the bottom of the pool)

·         Anyone under the influence of alcohol or drugs will be refused entry or removed from the premises.

·         Horseplay (running, shoving, dunking, disobeying water feature rules, etc.) and profanity are not permitted.

·         Persons with infectious diseases, open sores, or recently with diarrhea are not permitted in the pool(s) or sprayground. (OK, so how are these people spotted? Besides brown stripes on their bathing suits)

·         Lifeguards are responsible for enforcing any additional rule& that, in their judgment, will help maintain a safe pool for your use and pleasure. (Even better, lifeguards are now allowed to make up rules to make your life a living hell cause you did not go out with me last week.)

·         Water is not meant for drinking (so I guess we are pushing the concession stand big time…..)

·         Take regular rest room breaks (You, yes you, you have not gone to the bathroom for 1 hour. You are in bathroom timeout!)

·         Do not engage in prolonged underwater breath holding (another group that will be identified on the bottom of the pool.  Who decides what prolonged is by the way?)

·         Enter water feet first, no diving in shallow water, (but what about deep water?)

·         No running on the diving board (makes sense I guess with only one bounce…)

·         No acrobatic dives

·         Patrons may not catch younger children who are jumping off the board. (the city prefers to let them drown?)

·         Competitive diving requires appropriate supervision. (Cause we don’t want your friends saying that was a great dive, we only want judges!)

You can find the complete list of rules here.

Are we may be giving lifeguards too much power. Will the lifeguards in addition to taking Red Cross training have to be certified law enforcement officers to issue tickets? (Where are they going to keep their ticket book in swim trunks?)

This is how stupid this gets.

“If you do have a child deliberately breaking the rules we want to have the ability to come back and say, ‘hey you’re not supposed to be doing that,'” Jensen added.

It isn’t enough to have a rule that would allow you to through someone out of the pool and keep them out.

Is there a power hungry pool supervisor behind the scenes plotting the over through of Avon Ohio?

Why is the city council making the rules for the pool? Isn’t that the job of the park manager or the pool manager? Avon city council, got nothing else to do?

Can you see someone like the soup Nazis standing next to the diving board screaming at each kid “one jump for you!”

What do you think? Leave a comment.

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Wisconsin decision has left the status of release law in Wisconsin in jeopardy. Decision also brought in new defenses to releases in the state

This decision worked hard to defeat not only this release, but all releases in Wisconsin, even though the dissent laid out great arguments why the majority’s decision was not based on any business principle. Even a concurring opinion thought the majority decision was too broad.

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Date of the Decision: January 19, 2005

Plaintiff: Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem

Defendant: Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company

Plaintiff Claims:

Defendant Defenses: Release

Holding: for the Plaintiff

In this decision, the Wisconsin Supreme Court set release law back in the state. The decision, Atkins v. Swimwest violated a release on numerous grounds that would not hold up in other states. In a decision that may invalidate all releases in Wisconsin, the Court ruled that a release used by a swim club in conjunction with the registration statement was invalid as against public policy.

The plaintiff was the only surviving heir of the deceased and a minor. Consequently, the plaintiff was represented by a guardian ad litem. This is a person appointed by the court to represent the minor. The guardian ad litem may or may not be an attorney.

The decedent went to the defendant’s swimming pool for physical therapy. She entered the pool that day and was observed swimming a sidestroke up and down the length of the pool. Soon thereafter she was observed at the bottom of the pool. She was rescued, and CPR was started. She was transported to a hospital where she died the next day.

The decedent was not a member of the swim club, so she was required to sign a guest registration/release form. The form was titled “Guest Registration.” The form was a five 1/2 inch by five 1/2 inch card with release language that the court characterized as standardized. The card also required written personal information. The waiver information was below the registration information. The waiver language was:

I agree to assume all liability for myself without regard to fault, while at Swimwest Family Fitness Center. I further agree to hold harmless Swimwest Fitness Center, or any of its employees for any conditions or injury that may result to myself while at the Swimwest Fitness Center. I have read the foregoing and understand its contents.

The trial court dismissed the case based on the release. The appellate court certified the case to the Supreme Court of Wisconsin. Certified means they passed the case on up without a decision.

Summary of the case

The court first had a problem with the term fault. The term was described as overly broad. The court explained the term was not defined enough to indicate to the parties (the deceased) the exact legal claims that would be barred by the release. The court found the term fault could also cover intentional acts which the court specifically stated would violate public policy and consequently, void the release.

The court stated, “We have consistently held that “only if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” From this, statement appears the court wants the specific possible risks to be enumerated; however, that is an impossible job for most recreational activities.

The Supreme Court then looked at the Public Policy issues. The court called the public policy test a balancing test. The court required a balancing of the needs of the parties to contract versus the needs of the community to protect its members. No other court has balanced the issue of a release for a recreational activity this way. No other decision has surmised that the needs of the community include protecting individual members from freedom to contract. The court did not even consider the issue that the purpose of swimming by the decedent was for medical care: her physical therapy which might have had some public policy basis.

The court examined the release’s language in a two-step process. “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived.  Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” The court stated the release served two purposes: (1) as a sign-in sheet for the facility and (2) as a release and therefore, did not meet the test they created.

In another statement the court stated, there was nothing conspicuous about the release language in the form. While other courts across the nation have continuously berated release writers about hiding the release language, wanting them to make sure the language was not hidden. Here the court goes one step further and wants the release language to be quite apparent and pointed out to the reader.

In one of the wildest statements in a court decision, the Supreme Court of Wisconsin stated that the decedent did not contemplate drowning.

…Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

Although you might look at slipping on the wet deck or stubbing your toe as you entered the water, what other possible risks exist in swimming other than drowning?

The next major blow to releases in general was the bargaining argument. The court stated the release was void because there was no opportunity for the decedent to bargain over the release language.

We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form.

We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain.

The term bargain means the court wants possible signors of releases to be able to negotiate the exculpatory language out of the release. As argued by the dissent, (judge who disagrees with the majority opinion) this would require every firm to hire an attorney to negotiate each release with each patron. As a condition of insurance, most providers of recreational insurance and/or health club insurances are requiring that every participant sign a release. If a participant does not sign a release and the release is a policy condition, there will be no insurance available to defend a claim.

Even if you could purchase insurance without using a release, at what cost would not having a release be worth? Based on two cases that have occurred, the person who is injured is the person who did not sign the release. So the cost of not have a patron sign a release is equal to their possible claims. If you want to join the health club and sign a release the cost is $79.00 per month with a $100 membership fee. If you want to join without signing a release, the cost is $89.00 a month with a $5 million-dollar membership fee.

The failure bargain to remove the release language was a violation of public policy. How? The court does not enumerate, nor do the concurrence and the dissent provide much additional information; however, both the concurrence and the dissent recognize the fallacy of the bargain requirement.

In the one point of illumination, court summed up their decision in the last paragraph:

In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim.  The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

The dissent is a well-thought-out argument about what is good and bad about the release and what is very bad about the majority’s opinion; however, the dissent, a minority of one, has no real value.

So Now What?

The solution to this issue is to use the word negligence. Negligence has a specific legal definition and specifically/legally defines the parameter of the release. The only specific statement from the decision that could be considered directional in writing releases was the statement that the word release should have been used in the form.

Why not? Why risk having your release thrown out because you failed to put in one additional sentence.

The next problem was the release was part of a registration form. The court included this as a reason the release did not meet its public policy test. This problem would have been resolved if the release was on a separate sheet of paper and clearly marked with a heading and/or notice above the signature line that the document was a release.

The court then went on in this vein and stated the exculpatory language in the release should have been highlighted or been more visible to someone signing the release.

From this decision, in Wisconsin you must!

1.                  Your release must be on a separate and distinct piece of paper.

2.                You release must be identified and clearly state it is a release.

3.                The release must use the magic word “negligence” to be valid.

4.                You need to list all of the possible injuries or risks that can befall the signor of the release.

5.                 Your release must be read by the parties and there should be a notice in the release that the signor read, understood and signed the release with the intention to give up their right to sue for injuries or death.

If you can, you should see if you can provide:

6.                The opportunity for your patron to buy their way out of the release.

7.                 References to other competitors where a guest may be able to go to have a similar opportunity without signing a release.

8.                8.  Make sure your insurance is up to date and adequate for the value of your business and your risk.

Always in any business.

9.                Make sure your corporate records are up to date. If you are not incorporated or an LLC get incorporated now!

10.            10.         Look into separating assets from operations in separate corporations or LLC’s and divide your business into separate, smaller entities to protect the business.

11.              11. Look into asset protection planning for your personal assets.

What do you think? Leave a comment.

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

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