Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                      Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                      Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


Strange, camp director/AMGA certified rock guide charged with endangering children, on climbing trip

Obviously, there are some facts missing, this is really dumb, there is an overzealous prosecutor; someone in the family knows someone in county office or the plaintiff’s attorney pushed to have the county sheriff make their case for them.

It’s really sad to see an 11-year-old girl injured. It’s said to have a group of kids scared by the experience. However, there are some things about this that are confusing.

Here are the facts from the article. The defendant & defendant, first in a criminal case and second in a civil case was the camp director of a church summer camp; Camp Otterbein (an affiliate of West Ohio Conference of the United Methodist Church). The defendant took the kids to Hocking Hills Rock Climbing Rappelling to do something.

During the day either a female camper was lowered or rappelled into a hole. (I’m guessing it was a formation, why would you lower someone into a hole?) The rock formations are small and composed of long ago eroded water features. (I grew up in the area and have been there several times.) The article describes her as rappelling, however, when questioned the article states she said she was lowered in when she became stuck.

It is not clear what time she started her descent; however, she was not rescued until 1:30 AM. The girl suffers from compartment syndrome, which allegedly started to occur after she was discharged from the hospital.

The defendant allegedly created a substantial risk to the health or safety of a child, by violating a duty of care, protection, or support, which is the definition of child endangerment. (It’s a 10 page statute, so I’ll not post it. It is a good statute; however, it is also the statute used to hold adults criminally liable when a kid gets in trouble because the adult allowed or left the child in a position to get in trouble.)

The child suffered:

…she suffered injuries including redness and bruising around her thighs due to the harness; bruising and abrasions on the right side of her stomach; abrasions on her back from her neck to her buttocks; abrasions on her right shoulder; bruising in her armpits; and lacerations between her legs where the harness was holding her.

I highlighted the injuries that would come whether you were trapped or not wearing a harness. The severity of those types of injuries might be increased based upon the length of time in the harness. However, if she was wedged, then she might not have had any weight on the harness. Also the injuries under her armpits suggest she was wearing a full body harness, but that is only speculation.

There were two things that did get my attention in the article. The girl admitted to investigators that she had volunteered to go down the hole, and no one had forced her to do so.

The second was that the mother told park rangers that she was going to find an attorney. (My kids stuck in a hole, but I’m going to find an attorney…..)

The defendant camp director was a certified “instructor” through the AMGA.

I’m trying to get more information about this accident/incident. Not much will be forth coming until after a plea bargain or criminal trial and then only what is in the criminal files. The civil case will take longer.

What a mess.

The article is: Camp director charged with endangering children

Please read the article, you might see things differently. Thanks to D. Twilley for sending me the link.

What do you think? Leave a comment.

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Email: Rec-law@recreation-law.com

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Death of young climber leads to criminal charges in Italy

Lawsuit versus criminal charges; US v. Europe

Tito Traversa died in July of this year. He was a very talented promising climber who had already lead 5.14’s. His death allegedly occurred because instead of his quick draws being correctly attached to carabiners, the webbing was attached to the rubber “bands” used to keep the slings from moving on the carabiner. Those bands have a low breaking strength, if any at all. When Tito fell he fell 40 meters (120 feet) to his death.

To read an article on how the quickdraws were incorrectly set up see The Quickdraws that Led to the Death of Tito Traversa.

Here in the US there might be a lawsuit over the issue; however, criminal charges would not be filed unless there was criminal scienter. Scienter is a criminal intent to do something or known as the “criminal mind.”

Just another example of the different ways legally the US and Europe, as well as most other countries are different.

See Manslaughter Charges Filed after Tito’s Accident

For articles about his death see: 12-Year-Old Tito Traversa Dies From Climbing Fall or Superstar Preteen Climber Dies After Fall

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

 

 

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Help End the Hit and Run Loophole in Colorado. Support Bicycle Colorado!

Bicycle Colorado is working hard to make Cycling Safer in Colorado

Denver Capital building

Image via Wikipedia

Bicycle Colorado announces support for the “End the Hit and Run Loophole” Act (HB12-1084) introduced in the Colorado House by Representatives Kathleen Conti (R) and Rhonda Fields (D). The act will increase the penalty for a hit-and-run crash causing serious bodily injury from a Class 5 felony to a more serious Class 4, removing a dangerous loophole in Colorado law by giving a hit-and-run offense the same penalty as drunk driving.

At present it is better to flee and avoid getting caught drunk than it is to stay at the scene.

Hit-and-run crashes disproportionately affect people who walk and ride bicycles. Bicycle and pedestrian fatalities are four times more likely to be the result of a hit and run than other roadway crashes. The difference between life and death may be the immediate help that is offered at the time of the crash.

The bill will soon be heard in the Judiciary Committee, and we will keep you updated on its progress. For more information, go to the legislative page on our website.

Do Something

To receive all the latest news from Bicycle Colorado, sign up for the free eNews or read archived eNews publications.

English: Denver B-cycle Station, Denver, Colorado

Image via Wikipedia

What do you think? Leave a comment.

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Her life is permanently changed, but she really wants an apology

Justice will be served when defendant admits guilt

The first sentence in the article tells a lot:

Laura Fralin might have recently received a large insurance settlement, but the University of Georgia graduate won’t be satisfied until the man who nearly killed her two years ago owns up.

The injured lady in this case was crossing the street when she was hit by a driver who fled the scene. Witnesses boxed the driver in and he was caught. He was not charged with felony hit and run, but misdemeanor traffic violations. He claimed his medication affected him at the time of the article and is trying to enter a “no-contest” plea on the charges.

A no contest plea neither admits nor denies guilt, but accepts the charges.

Although the injured lady does not want the defendant to be able to plead no contest and she is not advocating for jail time, she really wants an apology. “I will feel like justice has been served is if Mr. Hale owns up to what he did wrong.”

See UGA grad wants apology in collision that left her disabled

Additional Articles on Why People Sue:

It’s Not Money

Why do people sue? Not for the money.

Money is important in some lawsuits, but the emotions that starts a lawsuit.

Serious Disconnect: Why people sue.

Great article on why some corporate apologies fall short and they are not sincere

A Church wants to apologize and the insurance company for the church panics. What else would you expect a church to do?

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Cyclists! We need to change this. It is legal to change it, it is right to change it.

Organization of the New York City Police Depar...

Image via Wikipedia

We have to get/force/educate law enforcement that cyclists are not just future road kill!

If you ride regularly, other than on a trainer, you’ve probably been scared, brushed or hit on a bike by a vehicle. If you are injured or your bike or other property is damaged, a

nd you call the police/state patrol/sheriff, you are probably ignored, or if they respond, still ignored.

People are starting to take action about the issue of motorists killing or almost killing cyclists. See Tell Maui and HI that you’re not coming until they prove the place is safe and the news article Family Of Killed Cyclist Mathieu Lefevre Sues NYPD For Withholding Information. The horses are hitched; it’s time to get on the band wagon!

This has to stop!

There are several things you must do (yes I’m not suggesting I’m telling you).

Before an incident.

1.     Get a law passed that gives cyclists the right to call law enforcement that makes law enforcement respond.

        The law should say the cops have to show up.

        The law should say the cops have to take a report.

2.     If you are politically active, ask politicians if they support the right of cyclists to be on the road. The law has already allowed it, so this is to find out any bias.

        Once you get an answer if is one you like to tell them you are going to support them and tell everyone.

        If it is an answer, you do not like, get it confirmed somehow. Record the response or get a written response, some way to hold the person accountable later. Usually when a politician finds out, they’re commented was stupid, they correct it.

        If they still stand by a negative answer, let the world know. If proof of the claim I’ll post it, and I know of a lot of other cycling blogs that will post it. Let your local bicycle advocacy groups know. (You are a member right!).

After an Incident

English: A commuter cyclist in the London morn...

Image via Wikipedia

For what to do before an incident and what to do after an incident see: How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?

If you follow the advice in How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?You should get a response. If not, then proceed to step 3.

After an Incident and you do not get a response!

1.     Make noise. Make lots of noise. To borrow an old slogan, be loud and proud.

        Contact the head of the law enforcement agency and get a reason why you have not had a response. Furthermore, ask for a copy of the file on the incident. In most states, you have the right and can get this file.

        Contact the District Attorney’s office and find out why charges have not been pressed against the driver. Ask for a copy of the file.

        Contact the chief political politician, mayor, commissioner, governor and ask them why nothing has happened. Ask them to investigate. A month later asks for a copy of their file on the incident.

        Contact the local Visitors Bureau and let them know that you have that their city/county/state is dangerous, and you will let other cyclists know. Those cyclists’ make up a big part of the economy and cyclists visit the area to ride.

The more the merrier!

Ask your friends and other cyclists to help. They can also contact law enforcement, the District Attorney, the visitor’s bureau and the media to add weight and support to what you are doing.

In all communications, it is important for both you, and others that are assisting, to copy people on the communications. In many cases the people you copy are the most important part of the letter. CC everyone above on each other’s letters. Always include any bicycle groups or clubs with a copy. Include bike shops as a cc in your communication so the people you are contacting understand that you are getting the word out.

In your communications be polite and be persistent. Set up a schedule. Give the prosecutor and law enforcement a month at first. No response gives them another month, then 2 weeks then every week. I would suggest you do this in such a way you can keep records of your communications. What you said and when you said it. Email or in writing is best.

In your communications be polite and be persistent. Do not threaten anything except your vote and your obligation to communicate. You do not want to put yourself in any box except as an aggrieved citizen or worse charged with harassing a government official.

If you have not heard anything after the first week, get on the publicity horn. Prepare a written statement of what occurred. Include any witness names and contact information. Include any photographs, GPS files, etc. and send it to every media outlet in your community and every cycling media outlet. Most will ignore it, but on a slow news day, you may get lucky.

You want your initial contact to be valid enough so that you are not considered a whack job by the media. You want to come across as a member of the community hat was almost killed, and you want to know why the police have not done anything.

If you want to invest a ton of time, you can go to the courts in many jurisdictions and request a special prosecutor. A special prosecutor is one from another county whom the court orders to investigate the case and see if charges should be brought. This is rarely granted, however, it will show that you are serous, and it will help get more media interest in your case.

You may never get a ticket issued against the driver. However, you will let the community know that cycling is dangerous in your community and what politicians and other elected officials think about the issue.

If enough people do something, something will happen. Eventually, law enforcement will track down and start issuing tickets to.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2012 Recreation Law (720) Edit Law

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Tell Maui and HI that you’re not coming until they prove the place is safe.

Cyclists assaulted by driver and cops do nothing in Maui.

A friend of mine was almost killed by a truck while riding his bike in Maui. To read his article see Maui Road Rage: A Local Tried to Kill Us. It is amazing that he did not suffer greater injuries or be killed.

Simply put while riding his bike a truck driver cuts him off knocking him to the ground with his truck door. While on the ground the truck driver gets out of this truck and starts to threaten the cyclists. DL, the cyclists responded with a well place kick to the thinking part of the truck driver.

What is a greater in amazement is the fact that locals stopped to help him after the truck driver tried to kill him and got the driver’s license number and the police of Maui did nothing.

DL’s injuries were a skinned knee. He got lucky. However, we have to put a stop to this. This is assault, plain and simple. The act was a felonious assault because of the deadly weapon, the truck.

Do Something

Contact the Maui Tourists bureau and let them know about the article. Email address is: info@hvcb.org. Website contact address.

Have you read this article Maui Road Rage: A Local Tried to Kill Us? Is it a common practice for the Maui police to ignore assaults on tourists by locals? The police had everything they needed to prosecute the idiot: Witness statements and the vehicle license plate number and they did nothing.

Why would I come to Maui when it is a dangerous place?

Contact the Maui Tourists bureau and tell them you are not coming to Maui until it is a safe place to ride.

Contact the Hawaiian tourist bureau and tell them you want a response and want to know if Hawaii is a safe place to ride a bike. Email address is: info@hvcb.org

Have you read this article Maui Road Rage: A Local Tried to Kill Us? Is it a common practice for the Maui or other Hawaiian police to ignore assaults on tourists by locals? The police had everything they needed to prosecute the idiot. Witness statements and the vehicle license plate number and they did nothing.

Why would I come to Hawaii when it is a dangerous place?

Contact the Maui police department and tell them their actions were disgusting, and you are not coming to Maui until they have gotten rid of the corruption in their department. The Police Chief’s contact information is: Gary Yabuta crs@mpd.net

Contact the Maui prosecutor’s office and ask them if they are going to allow assaults like this to go unprosecuted. John D. Kim, Prosecuting Attorney, Prosecuting.Attorney@co.maui.hi.us

Repost D.L. article on Twitter, Facebook and your own blog. Let the world know that cyclists are not going to stand up for this and tourism includes cyclists.

To read more about how to protect yourself and push prosecution in these case read How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or Linkedin

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How do you prove to a cop that you were not at fault in an accident with a car when you were on a bike?

Crumple zones and skid marks don’t work in cycling.

When two cars collide there are several things besides the statements of the drivers that a cop (police officer when they do things correctly and cop when they don’t) can use to determine who was a fault. When a car hits cyclists, there are one set of skid marks, the cars, but rarely any on the pavement from the bike. Consequently it will be your statement against the drivers and cops have an affinity to believe the driver.
What do you do and in what order to make sure the correct person is handed a ticket and you are your bike are taken care of.

Before you take off on a ride:

  1. Get a smartphone and/or
  2. Get a GPS unit that records your travels in detail
  3. Download to your smartphone an app that tracks your location and time in as small of increments as possible.

When you go on your ride:

  1. Start the GPS unit or your smart phone program
  2. Tell someone where you are going and when you should be expected back
  3. Make sure you can dial 911 easily and quickly from your phone
  4. Make sure you can call friends if need help.
  5. Make sure you know how to use your phone’s camera
  6. a. Make sure you know how to upload photos to some site when you take them at the same time leaving a copy on your phone

  • F. Put an app on your phone that allows you to record conversations and upload or email those files to a third party or upload them

If you are in an accident:

  1. Call 911
  2. Tell them you have been involved in an accident, there are injuries (if there are) and damages and request the police

    Do not state that one of the vehicles is a bike if you can because that may slow response in some jurisdictions.

  3. Photograph everything, the car, the bike, the scene and any witnesses, especially reluctant ones.
  4. Get names and addresses of any witnesses and ask them to stick around until the cops arrive
  5.           Take a picture of the witnesses so you can match the information to each witness
  6.           Better photograph their driver’s license
  7.          Upload your photographs to a safe site, keeping copies on your phone to show the cop
  8. Get the driver’s information and while you’re doing that
  9. Record the driver’s conversation. Initially most people tell the truth, only when the cops arrive do they start to change stories.

However, do not give all of this to the police officer unless you have backed it up or have copies; it may disappear. If the conversation is backed up by the evidence or telling, let the officer hear it and tell the officer as soon as you can get it downloaded you can provide a copy. However you cannot give him the smartphone as it is your only phone. Ask the officer if you can email the recording to him from your phone and do so along with any photographs.

If your GPS allows you, do the same with your track on the GPS. Tell the officer it requires special software that you have to download and print the track and you will deliver it to him ASAP, but be hesitant about giving him the GPS.

Always set your GPS to record as much information as possible for each of your rides. A report that only provides data every several minutes may not sure you stopped at the stop sign before proceeding into the intersection. However multiple GPS hits at one spot with the time stamp will show you obeyed the law.
At the same time, always ride as the law requires. If you do not you will provide the police with the information needed to ignore your story or even write you’re a ticket

Get the case number from the officer and his information. Many officers carry business cards now days. Get the officers business card, and take a photograph of it with your phone and upload it. (In case you lose it or it gets sweaty and can’t be used.) Find out how you can supplement the report with a transcript or a copy of the recording, photographs and a download of the GPS report showing your mode of travel.

If you have the GPS track on your phone make sure you email a copy of the track, photographs and recording to yourself ASAP to have a back copy of everything.

You may not be able to win the argument at the scene; cops are tuned to disregard cyclists. Put together a package of the information you have and deliver it to the police officer. Get a receipt when you do. If you do not hear from the officer within 7 days, find out the officers supervisor and give a copy of your information to him, with a cover letter. Also at that time, give a copy of the report to your county commissioner or city council person anyone who was elected to their position and has responsibility for the police.

If that does not work, go to the press and/or a police overview group. The squeaky wheel gets greased and until you make enough noise that someone cares, you may not get satisfaction.

The whole key is to get enough information to be able to prove your point from anyone or anything other than you. Photographs, recordings, notes and other people are more credible than cyclists in many cases when pleading a case. If nothing else, those third parties and things will support your claims.

For examples of how this has worked see: Why Every Cyclist Should Ride With GPS and Why Every Cyclist Should Think About A GPS

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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You never know what really happened or what was really said, but still……

Letter to the editor about a boarder v. skier collision at Copper Mountain Ski area creates more questions than answers.. 

Al Thomas wrote a letter to the editor of the Summit Daily. The Summit Daily is the local newspaper for Summit County where Copper Mountain, Keystone, Breckenridge and Arapahoe Basin are located. Skiing/boarding is big in that county. Al wrote about the issues and injuries he received when he was hit by a snowboarder while skiing at Copper Mountain. He appears to be as mad at Copper Mountain as the Snowboarder.

Mr. Thomas had stopped at a slow sign to wait on a friend when he was hit by a snowboarder. He says 10 people witnessed the accident. This paragraph is the confusing part of the letter.

A requested ski incident report was furnished to me by Copper Mountain. I met with Charles Payne “Risk and Safety.” I asked if the other party had been cited. Mr. Payne explained that unless a Copper employee was an actual eye witness to an event, it was Copper’s policy not to issue any citations. In my case the other party admitted to skiing in excess of 10 mph in a slow-ski zone and to having at least one alcoholic beverage before the incident. I wonder if this person was impaired.

First of all, Copper Mountain cannot issue a citation, ticket to anyone. Only law enforcement, in this case the Summit County Sheriff can do that. However, Copper Mountain can turn the information over to law enforcement for them to make the decision if the events rise to the level of a criminal act. If ten people watched the accident, that is a lot of witness statements. Additionally, the snowboarder admitted skiing too fast.

The statement “unless a Copper employee was an actual eye witness to an event”, if true is confusing. It is not Copper’s responsibility, and I seriously doubt Copper is only going to do something if an employee witnesses an event.

The Colorado Skier Safety Act specifically allows lawsuits between people who have collided on the slopes. (Contrary to California which says collisions are a risk of skiing.)

C.R.S. 33-44-109(1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability. Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.

The statute specifically protects the ski area and places any liability on other people on the slope.

A ski area may revoke a skier’s skiing (and boarding) privileges in a careless and reckless manner.

C.R.S. 33-44-108(5) The ski area operator, upon finding a person skiing in a careless and reckless manner, may revoke that person’s skiing privileges. This subsection (5) shall not be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or from another skier’s carelessness or recklessness. 

In this case Copper Mountain could have removed the boarder who caused the collision from the slopes and taken any ski pass, daily or seasonal from him or her. That is the extent of what a Ski Area in Colorado may do. That usually can be done by any employee, definitely by the ski patrol and management and easy to do with the severity of the injuries and ten witnesses.

Whether or not criminal charges should have been pressed against the snowboarder is totally out of the control of the ski area. Copper Mountain’s ability to do anything ends with the confiscation of the ski pass.
See Al Thomas: Ski area need better safety enforcement.

What do you think? Leave a comment.

 
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Washington bill to halt out of bounds skiers is just a way to promote more lawsuits

Out of bounds skiers will be easier to arrest, but lawsuits for skier collisions will be easier to sue over. 

Washington Senate Bill 5186 sponsored by Senators Kastama, Delvin, and Eide would allow ski patrollers to collect information to be given to the sheriff to arrest out of bounds skiers. Besides the obvious evidentiary issues with the bill, the bill also has several deceptive parts.

Excerpts from the bill concerning the out of bounds issues are:

(7)(a) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.

(b) A person shall not ski on a ski slope, trail, or area that is designated by a ski area operator as closed to the public and that has signs posted indicating the closure. Any person who violates the provisions of this subsection commits a civil infraction and is subject to a monetary penalty of up to one thousand dollars.

(i) A member of the national ski patrol who witnesses a violator present in a closed area may conduct an investigation that includes preparation of an incident report form and collection of evidence or witness statements. Information pertaining to the violation may be remitted within seven days to the sheriff of the county

Don’t get me wrong, idiots who ski into closed areas of ski areas should go to jail. However, most ski resorts on US Forest Service land is required to have a gate so skiers can ski on the Forest Service land. The first issue is the closed area inside the ski area boundary our out? If out, there could be a problem with the sheriff making an arrest on federal land.

However, the deceptive part of the bill is very interesting. Those excerpts are:

(1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.

(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.

These paragraphs would increase litigation significantly in the state. No other state skier statute places such a great burden on skiers, nor does any other statute reference so many ways to create liability for a skier or boarder who collides with another.

The language of the bill will make it easier to start lawsuits over ski injuries.

Ski areas will probably like the bill because it may stop people from ducking rope closures. However, they will soon come to hate the bill when their costs of sending patrollers to testify at trial for the criminal defendants and the skier v. skier collisions goes through the roof. Add to that the lost time and it can be expensive for the resort to be involved in any litigation, even if the resort is not a defendant.

For an article about the bill see Out-of-bounds skiing bill wouldn’t affect backcountry.

To see the bill:

S-0070.1
SENATE BILL 5186
State of Washington 62nd Legislature 2011 Regular Session
By Senators Kastama, Delvin, and Eide
Read first time 01/17/11. Referred to Committee on Natural Resources & Marine Waters.
AN ACT Relating to skiing in areas closed to skiing; amending RCW 79A.45.030; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 79A.45.030 and 1989 c 81 s 3 are each amended to read as follows:
(1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
(2) No person shall:
(a) Embark or disembark upon a ski lift except at a designated area;
(b) Throw or expel any object from any tramway, ski lift, commercial skimobile, or other similar device while riding on the device;
(c) Act in any manner while riding on a rope tow, wire rope tow, j- bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;
(d) Willfully engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift; or
(e) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.
(3) Every person shall maintain control of his or her speed and course at all times, and shall stay clear of any snowgrooming equipment, any vehicle, any lift tower, and any other equipment on the mountain.
(4) A person shall be the sole judge of his or her ability to negotiate any trail, run, or uphill track and no action shall be maintained against any operator by reason of the condition of the track, trail, or run unless the condition results from the negligence of the operator.
(5) Any person who boards a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device shall be presumed to have sufficient abilities to use the device. No liability shall attach to any operator or attendant for failure to instruct the person on the use of the device, but a person shall follow any written or verbal instructions that are given regarding the use.
(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.
(7)(a) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.
(b) A person shall not ski on a ski slope, trail, or area that is designated by a ski area operator as closed to the public and that has signs posted indicating the closure. Any person who violates the provisions of this subsection commits a civil infraction and is subject to a monetary penalty of up to one thousand dollars.
(i) A member of the national ski patrol who witnesses a violator present in a closed area may conduct an investigation that includes preparation of an incident report form and collection of evidence or witness statements. Information pertaining to the violation may be remitted within seven days to the sheriff of the county in which the violation occurred or to the director of fish and wildlife.
(ii) The sheriff of the county in which the violation occurred or a fish and wildlife officer as defined in RCW 77.08.010 may issue a citation to a person who violates this subsection (7)(b).
(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.
(9) A person embarking on a lift or tow without authority shall be considered to be a trespasser.

What do you think? Leave a comment.

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Scary trend in climbing

Second time this year a climber has been criminally charged for their partner’s injuries. 

I wrote about the first case in Australian Climbing Accident investigated by police for criminal charges. This second case is for manslaughter. Allegedly, the belayer had a momentary lapse of consciousness while belaying on a climbing wall. The climber fell suffering a skull fracture and died.

There is another situation in Colorado where a minor has been charged with manslaughter when a rock fell and killed a girl below him. However, in this case, it appears the sixteen year old kicked the rock that killed the girl. See Boy charged in rock-kicking death pleads not guilty.

I have mixed emotions about these criminal complaints invading the outdoor recreation word. Most criminal complaints have prosecuted commercial operators who have done a bad job and lost clients or had numerous client complaints. See Criminal Charges For Rafting Problems and Rough way to deal with fatalities: Police Raid. There is a higher expectation when you hire a commercial guide. When two people engage in recreational activities I think there is some assumption of the risk that your partner may screw up, and you may be hurt.

This is what climbing is all about. The climber trusting his placements, the pro manufacture and his partner; all of whom can fail resulting in injury or death.

To read the article see Manslaughter charges over climber’s death
 
To see other articles about criminal charges in outdoor recreation see Criminal Charges For Rafting Problems and Rough way to deal with fatalities: Police Raid.

What do you think? Leave a comment.

 
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
 

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Bob Roll is Boycotting Vail Colorado

Maybe you should too? 

Hit and run misdemeanor charge in Vail Colorado means Vail does not want cyclists. Push the Quiznos Pro Challenge to move the race out of Vail! 

Bob Roll in his Bob’s Beef said he was not going to report on the Quiznos Pro Challenge from Vail Colorado until the situation in Vail is rectified. To see Bob’s video see Bob’s Beef: Cyclists Being Killed Must Stop.

Bob’s right (and I rarely say that… J).
 
We cyclists need to boycott Vail. Of all the towns in Colorado, Vail is the most tourists centric. A boycott of Vail during its tourist season will have an impact. To have a greater impact let the Vail community know you are boycotting the town. Contact all of the following people.

The Town Manager of Vail is Stan Zemler, Phone: 970-479-2106, E-mail: szemler@vailgov.com.
Vail Chamber and Business Association works on bringing tourists to Vail and Eagle County. You can leave a message for them at their contact page or 970.477.0075, info@vailchamber.org.
 
Let the Vail media know also. Contact RealVail.com at its contact page and the Vail Daily Newspaper through the editor Don Rogers: (970) 748-2920, drogers@vaildaily.com.

We need to let the Quiznos Pro Challenge know. Joe Moller is the President of Quiznos Pro Challenge. He can be reached at: Joe@QuiznosProChallonge.com or (303) 592-3811.

Tell Quiznos the main sponsor of the race. Quiznos can be reached at its contact page here. Select the category other and let them know you won’t be attending the Vail portion of the race.

If you are from out of state, let the state of Colorado know about your boycott. You can contact the Colorado State Tourism Office at its contact page.

Tell each of them the following:

1. You are boycotting the Town of Vail and Eagle County.
2. You are boycotting the Quiznos Pro Challenge if it is in Vail.
3. You are boycotting the Vail and Eagle County because motorists that hit and run cyclists are only charged with misdemeanors.
4. When this is rectified, you will come back to Vail and Eagle County.
5. You are not coming to Vail to Ski, Ride or Cycle.
6. Tell them the reason is the Vail Community obviously encourages an indifferent attitude against drivers who hit and run cyclists.

We need to put press and pressure on Vail to get them to understand why people are mad. For a city like Vail, pressure means dollars. Granted most cyclists don’t have a lot of money to spend at a place where the beers are $7.00 during happy hour, but one beer not being bought by enough people makes an impact.
Any complaint letter requires three things. (1.) A good statement of the issues. (2.) A demand, what do you want. (3.) the most important thing is who you copy on the letter. In this case, you need to let everyone know that things need to change, copy everyone. Contact everyone on that list and tell them you are upset and why.
Even if you had no plans to go to Vail, let people know. Tell them you won’t watch the Vail portion of the race on TV or the web.

Believe me; once district attorney’s figure out those not charging motorists that hit cyclists may cost their communities money, things might start to change.

For more information on the accident see Hit-and-Run in Vail, Colorado Incites Outrage.

What do you think? Leave a comment.
 
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Criminal charges for rafting problems.

Angry and Upset customers from some trips lead to an investigation which resulted in charges from other trips.

Patrick Cunningham, the owner of Hudson River Rafting Co and an employee Heath Bromley were charged with second-degree misdemeanor reckless endangerment for allegedly endangering rafters and a kayaker this summer.

The specific allegations leading to the charges are sending customers out without a licensed guide and deceiving customers about the need for licensed guides.

The allegation of sending a customer out without a licensed guide stems from having a customer paddle an inflatable kayak. Pretty hard to stick a guide in most inflatable kayaks……

The second charge was based on a trip that went out with a guide.

However, the article is full complaints and problems the company had this summer.

The investigation came after three people were injured this year on Hudson River Rafting Co. rafting trips, Curry said, and at least one group that included children was stranded on the Hudson River and had to hike several miles out of the woods to find help.
That stranding occurred when the rafters did not time the water release correctly, and wound up stuck in low water conditions, officials said.
….
Cunningham was charged for an Aug. 12 incident in which he allegedly failed to provide a guide and sent a man down the river in an inflatable kayak despite the fact the man told him he did not have any experience rafting or kayaking, Ovitt wrote in court records.
Cunningham, though, said the man “insisted” on trying to get through difficult rapids on his own despite his lack of experience. He was unable to make it through mid-level “Class 3” rapids, Cunningham said.

If every allegation is true and if this is worst raft company in the history of mankind, why are there criminal charges in this case? Just yank the permits so the 32 year old company can no longer operate. No one was hurt. What is the criminal part of this that warrants the filing of criminal charges?

I believe the relevant statute is:

ARTICLE 11. FISH AND WILDLIFE
TITLE 5. FISH AND WILDLIFE MANAGEMENT PRACTICES COOPERATIVE PROGRAM; PROHIBITIONS; TAKING OF FISH, WILDLIFE, SHELLFISH AND CRUSTACEA FOR SCIENTIFIC OR PROPAGATION PURPOSES; DESTRUCTIVE WILDLIFE; RABIES CONTROL; GUIDES; ENDANGERED SPECIES
Go to the New York Code Archive Directory
NY CLS ECL § 11-0533 (2010)
§ 11-0533. Licensing of guides
1. As used in this section, the term “guide” shall mean a person who offers services for hire part or all of which includes directing, instructing, or aiding another in fishing, hunting, camping, hiking, white water canoeing, rafting or rock and ice climbing.
2. All guides engaging in the business of guiding on all lands and waters of the state shall possess a license issued by the department, except for any persons operating or assisting upon a public vessel for hire (passenger carrying vessels), licensed by the United States Coast Guard or New York state, upon the Atlantic Ocean and all other marine and coastal waters, tidal waters including the Hudson river up to the Troy barrier dam, St. Lawrence river, Great Lakes and the navigable portion of their tributaries, and other navigable waters, as determined by the department.
3. Except while guiding for the purposes of hunting and/or fishing, no license as defined in section 11-0701 is required for such acts.
4. Employees of children’s camps as defined in subdivision one of section one thousand four hundred of the public health law shall be exempt from the provisions of subdivisions one and two of this section, provided such activities are carried out within the scope of said employment.
5. A license as required under subdivision two of this section shall be issued for a period of five calendar years and the fee therefor shall be established by the department, not to exceed two hundred dollars.
6. Every licensed guide while engaged in guiding shall wear in plain sight identification furnished by the department. Licensed guides shall be at least eighteen years of age. They shall be skilled in the use of boats and canoes whenever use of these craft is required and shall be persons competent to guide one or more of the following: camping, hunting, fishing, hiking, white water canoeing/rafting, rock or ice climbing or other similar activities. The department shall by regulation establish standards and procedures for testing and licensing of guides.
7. Any licensed guide who violates any provision of this chapter or who makes any false statement in his application for a license shall in addition to any other penalties, immediately surrender his license to the department, which may be revoked by the department for up to one year following the date of such surrender.
8. The department shall publish a list of guides annually.
 
The statute does not define a guide as someone who guides on rafts or kayaks in its definition, in section 1. However, the statute requires knowledge about whitewater rafting and canoeing in section 6.

The lessons to be learned here are simple.

  1. Take care of all of your customers. Any angry customer may come back to haunt you.
  2. Know the laws affecting your business or operation.
  3. Be very wary when the district attorney is running for office and trying to get more time in the media.

See Rafting company owner charged with endangering customers
 

What do you think? Leave a comment.

 
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
 
© 2010 James H. Moss

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Rough way to deal with fatalities: Police Raid

You may hate lawsuits, but I believe they are better than jail time.

A Japanese tour organizer had eight tourists die on a mountain climb last year. To investigate what happened, he was raided by the Japanese police to look into possible charges of negligence.

Negligence in Japan is a criminal act. Here it is a civil lawsuit. A criminal act means you pay a fine to the government and/or go to jail. A civil suit, if you lose means you pay money to the injured parties or their heirs.
The deceased, all in their 60’s died of hypothermia. The negligence charges stem from the fact that they were found at different locations on the mountain.

See Authorities raid tour agent in mountain deaths.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

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First Aid has its Limits. By law!

However, you need to understand the law as well as first aid. Especially if what you are being taught is an illegal act.

A question posted on Facebook by a first aid training organization asked the question of its face book fans. The responses were all along the lines of a not been trained to perform the illegal act. Most of the answers were correct. However, what has me concerned is the issue that is an issue floating around in the wilderness first aid world.

The question asked about doing an illegal act. The question was, would you stitch a wound if you were in the wilderness? The vast majority of the answers was no. There were a few yes’s, most of them qualified.

There the correct answer is no it is an invasive act. Therefore, it is illegal for anyone other than a physician, or dependent upon the state, someone under a physician’s direct supervision and control. There seems to be a real issue on what someone can do in a first aid situation. Most people who received wilderness first aid training believe they can do anything if they have a doctor or physician advisor or who has taught them how to do it. There are many physicians who have the same belief.

(Remember this is a legal blog: no morals, no ethics just law.)

This blog is not the place to do a complete legal analysis of this issue. However, a short synopsis is appropriate. All first aid training divides the first aid provider into two groups: those who are licensed to provide first aid care and those who are not. A licensed first aid provider is an EMT, paramedic, nurse, nurse practitioner, physician assistant, or physician, etc. A person who has taken a test administered by the state and required by the state to take the test before practicing is a licensed health care provider. Non-licensed first aid providers are everyone else. The non licensed category includes Boy Scouts, wilderness first aiders, Wilderness First Responders, any person happening by the accident. Dependent upon the state where you are operating, a licensed first aid provider may be allowed to do invasive acts. No state allows a non-licensed first aid provider no matter what the training, to do any invasive act.

An invasive act is one where the first aid provider does anything more to an open wound other than clean and bandage the wound. It does not matter what they had been trained to do, or what they think they can do.

If it is a criminal act the person receiving the treatment, the injured person, cannot waive their right and allow the person to do it. It is still a criminal act the matter. The next legal issue is, no criminal act is protected any state Good Samaritan act.

I guess what I find disturbing is the idea that if the person has been trained to do this it would be okay for them to do it. That is not the case. You can be trained to perform heart surgery, but if you do not have a license to practice medicine it does not matter if you are the best heart surgeon in the world it is still a criminal act. If a physician will be standing in the room next to you and has agreed to abide by the state laws you may or may not be able to do something under that physician’s supervision and control. Supervision and control is defined differently in each state. In most states, it means the physician is in the same room where you are performing the procedure you have been trained in.

Does this mean that you get arrested if you do something like this? It totally depends on the outcome. If it’s a good outcome possibly not, if it’s a bad outcome possibly.

The issue is not my paranoia, the issue is the first aid training being received based on the egos of the instructors. And I’m not saying this to condemn any first aid instructor. I’ve met dozens and they are wonderful people. What I’m saying is we all love to impress people; we all love to stand in front of a group of people and tell them how to do things, to educate them. We want them to like us. This is one of the reasons why we teach. If that goes so far as to teach people that if they knew a little more they could do a little more that is where we cross the boundary. Sometimes it’s more than what you have been trained, sometimes it’s whether not you are teaching someone to violate the law.

So am I overly paranoid about that issue? Probably. Is my concern legally correct? Yes.

For more information about these issues see Legal Issues in Wilderness First Aid: Value of various first aid certificates and training, Legal Issues in Wilderness First Aid, and Legal Issues in First Aid #3: The prescription drug conundrum

See http://www.facebook.com/wildernessmedicine?ref=nf

What do you think? Leave a comment.

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YOU HAVE GOT TO BE KIDDING

A raft guide was arrested the other day because he rescued a stranded girl.

A 13 year old girl was rafting with Arkansas Valley Adventures. She ended up stranded on a rock in the river. A raft guide from Arkansas Valley Adventures against the sheriff’s orders jumped into the river and rescued the girl.

The sheriff arrested the raft guide for obstructing government operations.
Let’s look at this without going nuts…….

Who has the most experience in whitewater?
1. The raft guide
2. Any raft guide
3. Alpine Search and Rescue
4. Clear Creek County Sheriff’s department

I’m pretty confident the correct answer is 1; however credit will be given for answer 2. I’ve done legal work for alpine Search and Rescue and know a lot of them. A great group of dedicated rescuers who do not have any whitewater experience.

Who is going to affect the rescue quickly and safely?

1. The raft guide
2. Any raft guide
3. Alpine Search and Rescue
4. Clear Creek County Sheriff’s department

Let’s see, this is a tough one. The raft guide who is right there, the sheriff who is trying to figure out what to do or Alpine SAR who are volunteers that have to be organized. Raft Guide wins again.

Are there a lot of questions that need to be answered here other than how low is the IQ of the Clear Creek County Sheriff? Or maybe it is an ego issue.

Clear Creek County just spent thousands of dollars on a kayak park. Who is going to go there if you risk being arrested if you attempt to help a friend? Hold on, I’ll get your paddle for you and a $150 ticket from the ego with the badge.

What can you do?

Support Arkansas Valley Adventures because they are standing behind their guide.

Notify the sheriff and let him know what you think: webadmin@clearcreeksheriff.us or call (303) 679-2376
Notify the Clear Creek County District Attorney and let them know what you think: 303-569-2567.

Let Clear Creek County know how you feel by posting on their Facebook page: http://www.facebook.com/pages/Georgetown-CO/Clear-Creek-County-Colorado/130701711250.

See Raft guide arrested after helping stranded rafter on Clear Creek

What do you think? Leave a comment.

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Vail and USFS hunting down pirates on the slopes – illegal guiding activities

Teaching skiing or boarding on US Forest Service land without a permit or on someone else’s permit without their permission is pirating and a violation of the law.

The Denver Post in an article Resorts run Resorts run stings to nab unauthorized instructors on their slopes brings the issue of “private” ski instructors to the front. Ski Instructors who are not wearing the ski resorts uniform or employed by the resort are pirates; people guiding on federal land without a permit.

Vail has had enough and in conjunction with the US Forest Service has started cracking down on the practice. Pirates that are caught are fined $545 (or more) and banned by Vail from all of their resorts for life.

These article follows an article on how Vail is catching people trying to sneak onto the lifts with other peoples season passes.

Copyright 2010 Recreation Law 720 Edit Law, Recreaton.Law@Gmail.com


They are getting serious: Leave the scene of a skier v. skier (or boarder) collision and go to jail

Wanted Posters and Sketch Artists used in a Bear Mountain Resort Hit and Run.

Bear Mountain Resort is looking for a mail snowboarder who struck a 9-year-old female on January 2, 2010 at approximately 1:00 PM. A sketch of the alleged snowboarder is here!

The suspect is described as a white male adult, 25-30 years of age, approximately 5’10” – 6’2″ tall, wearing a black and white jacket, black pants, and using a black snowboard.

Anyone having information regarding the collision or identity of the suspect is asked to contact the Big Bear Sheriff’s Station at (909) 866-0100. Information can also be reported anonymously by calling WE-TIP at (800) 78-CRIME.

It is unknown if this is a new attitude about collisions on the slopes or if this is a special case. The victim received a compound fracture of her femur and several facial injuries, all of which were not life threatening.

This is a real change from how hit and run boarders and skiers were treated in the past.


LA Physician who stopped in front of cyclists sentenced to Five years

Update of Criminal Trial Starts this week for MD who pulls in front of cyclists and slams on his brakes.

Christopher Thomas Thompson was sentenced to five years in jail for his conviction of five felonies and on misdemeanor. Thompson, 60, pulled in front of cyclists twice and slammed his brakes. The second time he severely injured two cyclists.

See L.A. road rage doctor gets five years

Copyright 2010 Recreation Law 720 Edit Law, Recreaton.Law@Gmail.com


Criminal Trial Starts this week for MD who pulls in front of cyclists and slams on his brakes.

VeloNews is reporting that a criminal trial is starting this week in Los Angeles Superior Court. Dr. Christopher T. Thompson is on trial for multiple felony charges. Dr. Thompson owns a medical records company Touch Medix.

A year ago Dr. Thompson got mad at two cyclists riding abreast on a dead end road. The two were behind a larger group of cyclists. They had stopped to assist an injured cyclist. Dr. Thompson exchanged words with the cyclists about riding two abreast and then pulled in front of the cyclists and slammed on his breaks.

One cyclist hit the back of the car and the other went through the rear window.

Two witnesses at the trail are two other cyclists who had a similar confrontation with an identical car with an identical license plate three months earlier. Both of those cyclists were able to miss the car when it braked.

See California road-rage case heads for court


The Japanese do not sue…..but you can go to jail for having a client die

An article Authorities raid tour agent in mountain deaths speaks to the Japanese police raided a tour operator over the death of eight senior citizens during a mountain climbing tour. The tour participants who were in their 60’s died of apparent hypothermia in cold wet weather.

As I have repeatedly argued the laws of the US are very different than the laws of other nations. In the US we have a low threshold to sue and a high threshold to go to jail. In most other countries the exact opposite is true, it is difficult to sue but easy to go to jail.

For other blogs about this issue see: Well in New Zealand…….you go to JAIL!, Another Litigation versus Criminal example and Litigation v. Jail Time


What is in a Business Name: A Robbery if you are Black Diamond

This if funny, but at the same time scary. KSL TV is reporting in Robber apparently confused over loot at ‘Black Diamond’ company that a man attempted to rob Black Diamond Equipment Company of their precious jewels. Although many of us believe that Black Diamond skis, carabiners and other climbing and mountaineering equipment are precious and sometimes as expensive (J) I don’t think there is a big black market for those stolen jewels that a stupid thief could find.

If you see a Polynesian man in his 20s or 30s about 6 feet 3 inches tall with a medium build and a shaved head with a full-sleeve tattoo on his right arm wearing a large, distinctive square-faced watch on his left wrist driving a white 1990s Ford Escape-type SUV and selling climbing equipment it might be stolen.

Stupid crook!


Death from fall from inflatable climbing wall results in Criminal Charges

I’m not sure what prompts prosecutors to charge people for what appear to be accident deaths of patrons. In this case a 24 year old woman was attending a festival, climbed on an inflatable climbing wall and fell off. She hit her head when she fell on the platform.

The company was charged with reckless and wanton negligence. The charges came after 2 years and a change in district attorneys. The family is suing the climbing wall operator with a trial started September 2, 2009.

I have lots of issues with all of this.

Reckless and wanton negligence is generally not a criminal act. Negligence is a breach of a duty to someone. A crime requires scienter, a criminal intent to do the crime to act in a criminal way. Negligence is not criminal by its definition. Granted there are crimes that do not require proof of a criminal intent, parking tickets being the best example.

Second, the issues reported, have their own criminal penalties if they occurred. The prosecutor states the company “failed to follow safety regulations. … had not been inspected as required, was poorly placed and lacked proper permits and that the operator was not properly trained or certified.” A violation of safety regulations either federal, OSHA, or state has specific penalties and in most cases administrative law procedures. You are cited and pay a fine. Failing to be inspected and not having the proper permits is similar, you are fined.

But I doubt there are safety regulations that would affect this situation. OSHA only covers employees and the state or county would have to enact regulations to cover inflatable climbing walls and I’ve not see any. Consequently this statement seems…incorrect?

However here again the prosecutor takes off in a different direction with proper placement and lack of training or certification. Proper placement from a criminal perspective occurs when you are dealing with a dangerous instrumentality. Dynamite, wild animals or guns are the examples given in legal textbooks. You are dealing with something that everyone knows will kill and has been identified as such by the community and therefore you have a requirement to handle with care or you can face criminal liability. A toy is not a dangerous instrumentality. It is not designed or known to kill if used incorrectly every time it is used.

Manslaughter is generally “homicide without malice aforethought.” Less than murder because the willful element is not present. Manslaughter lacks the intent to kill while manslaughter is an act that will result in death no matter what. A better way to look at the difference is murder you intend to kill someone, manslaughter you act in a way that someone was bound to die. Those are not the strict legal definitions but a general way of looking at the differences.

Here again the difference between a toy that someone dies using and a gun or dynamite is an easy way to see the difference. Using the Infinite Monkey’s theory (given an infinite amount of time an infinite amount of monkeys with an infinite amount of keyboards can type the works of Shakespeare), anything can kill. A gun on the other hand can kill every time.

“When a corporation offers entertainment or rides that have some risk for patrons, the company must ensure that it has taken all necessary steps to ensure the safety of those who participate,” Sutter said. “In this case, that clearly was not done.”

However that is why we have this entire separate legal system in the US. As I’ve commented on several times in the past, we have a civil system that controls society as well as a criminal system. If you act improperly the civil system is put into place; you are sued. If you act improperly with criminal intent, the criminal system is used. In other countries the government controls more of society. It does not require the high level of intent before the government steps in and civil suits are rare and difficult.

“…properly trained or certified” is another statement solely used to inflame the possible jury pool. The training would be determined by the manufacture of the inflatable wall and the certification does not exist. If you need to be certified, stand on one foot, pat your head and jump around in a circle three times saying Jim Moss is the greatest and you are certified. If you send me $20.00 I’ll send you proof of the certification. For $25 I’ll let you tell me what you have been certified to do and for $30 I’ll let you recertify people in the program.

Don’t get me wrong, I’m not saying the actions of the company are blameless. Nor am I trying in any way to discount the pain and grief this family feels. However the blurring of the lines between civil and criminal is an issue that is growing in the US.

This brings up a lot of unanswered questions. What is the relationship between the prosecutor and the family’s attorney? Criminal charges three weeks before a civil trial starts, is extremely suspect. Why when one prosecutor did not charge has the second prosecutor decided to charge the family? Finally is the prosecutor running for re-election of suffering a public relations issue? I can’t believe there is anything but a PR campaign here.

The article is: Danvers firm faces criminal charge


Two people charged with crime in fatal rafting accident.


The North Central Illinois News Tribune is reporting that two people were charged with operating a boat under the influence of alcohol. They were on the Vermilion River when their raft went over a low head dam. A third passenger in boat drowned.

They part of a group of seven people in two rafts. The first raft made it down a boat shoot on the right hand side.

The charges are a Class A Misdemeanor offense with a penalty of a $2500 fine or up to one year in jail.

See Two charged in wake of fatal rafting accident and Ex-St. Charles woman charged in fatal rafting accident.