Bonnen v. Pocono Whitewater, Ltd., Civil Action 3:20-cv-01532 (M.D. Pa. Sep 17, 2021)
Posted: February 15, 2024 Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Paddlesports, Pennsylvania, Release (pre-injury contract not to sue), Rivers and Waterways, Whitewater Rafting | Tags: fatality, Foot Entrapment, Forum selection clause, Lehigh River, Ltd., Pennsylvania, Pocono Whitewater, Release, Unguided Raft, Whitewater Rafting Leave a commentBonnen v. Pocono Whitewater, Ltd., Civil Action 3:20-cv-01532 (M.D. Pa. Sep 17, 2021)
CAROLINE BONNEN, et al., Plaintiffs,
v.
POCONO WHITEWATER, LTD., Defendant.
Civil Action No. 3:20-cv-01532
United States District Court, M.D. Pennsylvania
September 17, 2021
MEMORANDUM
JOSEPH F. SAPORITO, JR., U.S. Magistrate Judge.
This diversity action is before the court on the defendant’s motion to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) based on enforcement of a forum selection provision. (Doc. 15). The action arises out of an incident where the plaintiffs decedent died as a result of being thrown from a raft while Whitewater rafting on the Lehigh River in Carbon County, Pennsylvania. For the reasons set forth herein, we will deny the motion.
I. Statement of Facts
On September 1, 2019, Christopher Santana was one of nine occupants in an eight-person raft, none of whom were guides, who were Whitewater rafting on the Lehigh River in Jim Thorpe, Carbon County, Pennsylvania. After the raft hit a rock, Santana was thrown from the raft into turbulent and rocky waters. His foot became lodged between rocks causing him to become submerged underwater, which resulted in his death by drowning. The plaintiff, Caroline Bonnen, individually and as Administratrix of the Estate of Christopher Santana, brings this wrongful death and survival action against the defendant, Pocono Whitewater, Ltd.
The defendant has filed a motion to dismiss (Doc. 15), seeking dismissal on the ground that a forum selection provision contained in a release of liability purportedly signed by the decedent sets the Court of Common Pleas of Carbon County as the appropriate and agreed-upon venue for any dispute “aris[ing] out of th[e] agreement or otherwise between the parties.” (Doc. 14-5).
A review of the amended complaint reflects that the plaintiff did not plead whether the release of liability has any relevance to the incident. Rather, the plaintiff has pled that the defendant was negligent, grossly negligent, and reckless in its conduct in a variety of several itemized instances. (Doc. 9 ΒΆ 31). In her opposition papers, the plaintiff contends that the release of liability, which includes the forum selection clause contained therein, is invalid because the decedent did not execute the release. (Doc. 20 passim; Doc. 21, at 3-5). The plaintiff maintains that it was she who signed the decedent’s name, without authority to contract on behalf of the decedent. (Id.).
The motion has been fully briefed by the parties and is ripe for disposition. (Doc. 16; Doc. 21).
II. Legal Standard
Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief is granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiffs claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegations.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevy, 481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.Appx. 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
III. Discussion
Turning to the motion to dismiss based on enforcement of a forum selection provision under Fed.R.Civ.P. 12(b)(6), when the parties’ agreement contains a valid forum selection clause designating a particular forum for settling disputes arising out of their contract, a Rule 12(b)(6) dismissal is a permissible means of enforcing that forum selection clause. Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001). Podesta v. Hanzel, 684 Fed.Appx. 213, 216 (3d Cir. 2017); see also Eureka Res., LLC v. Hoden Roots LLC, ___F.Supp.3d.___, 2021 WL 3545068, at * 1 & n.5 (M.D. Pa. Aug. 11, 2021).
Here, the plaintiff disputes the validity of the release containing a forum selection clause because it was allegedly signed in the decedent’s name by his mother, the plaintiff, without authorization or consent by the decedent. Based on the factual allegations by the parties, we are unable to conclude that the decedent unambiguously manifested his assent to the forum selection clause, and thus we are unable to find that the forum selection clause is valid. See Oak Street Printery LLC v. Fujifilm N. Am. Corp., 895 F.Supp.2d 613, 619 (M.D. Pa. 2012). Because the validity of the form selection clause remains in doubt, the defendant’s preferred forum-the Carbon County state courts-is not controlling. See Id. Moreover, Pennsylvania law holds that such a release agreement cannot bind non-signatories. See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 497 (Pa. Super. Ct. 2016) (noting that a statutory “wrongful death claimant possesses an independent, non-derivative right of action” that cannot be subjected to a forum selection clause, signed by the decedent, without the claimant’s consent); cf. Buttermore v. Aliquippa Hospital, 561 A.2d 733, 736 (Pa. l989)(holding that a wife’s consortium claim was an independent cause of action, and thus not barred by a settlement agreement to which she was not a signatory). Therefore, construing all well-pleaded facts as true, as we must, we are constrained to deny the motion to dismiss.
An appropriate order follows.
Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: May 18, 2021 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.
Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.
This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.
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.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β $130.00 plus shipping
Artwork by Don Long donaldoelong@earthlink.net
New Book Aids Both CEOs and Students
Posted: August 1, 2019 Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line Leave a comment“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry
Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.
Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.
“There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”
The Reference book is sold via the Summit Magic Publishing, LLC.
While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.
The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.
PURCHASE
TABLE OF CONTENTS
Table of Cases
Introduction
Outdoor Recreation Law and Insurance: Overview
Risk
Β Β Β Β Risk
Β Β Β Β Β Β Β Β Perception versus Actual Risk
Β Β Β Β Β Β Β Β Risk v. Reward
Β Β Β Β Β Β Β Β Risk Evaluation
Β Β Β Β Risk Management Strategies
Β Β Β Β Β Β Β Β Humans & Risk
Β Β Β Β Β Β Β Β Risk = Accidents
Β Β Β Β Β Β Β Β Accidents may/may not lead to litigation
Β Β Β Β How Do You Deal with Risk?
Β Β Β Β How Does Acceptance of Risk Convert to Litigation?
Β Β Β Β Negative Feelings against the Business
Risk, Accidents & Litigation
Β Β Β Β Β Β Β Β No Real Acceptance of the Risk
Β Β Β Β Β Β Β Β No Money to Pay Injury Bills
Β Β Β Β Β Β Β Β No Health Insurance
Β Β Β Β Β Β Β Β Insurance Company Subrogation
Β Β Β Β Β Β Β Β Negative Feelings
Litigation
Β Β Β Β Dealing with Different People
Β Β Β Β Dealing with Victims
Β Β Β Β Β Β Β Β Develop a Friend & Eliminate a Lawsuit
Β Β Β Β Β Β Β Β Don’t Compound Minor Problems into Major Lawsuits
Β Β Β Β Emergency Medical Services
Β Β Β Β Additional Causes of Lawsuits in Outdoor Recreation
Β Β Β Β Β Β Β Β Employees
Β Β Β Β Β Β Β Β How Do You Handle A Victim?
Β Β Β Β Β Β Β Β Dealing with Different People
Β Β Β Β Β Β Β Β Dealing with Victims
Legal System in the United States
Β Β Β Β Courts
Β Β Β Β Β Β Β Β State Court System
Β Β Β Β Β Β Β Β Federal Court System
Β Β Β Β Β Β Β Β Other Court Systems
Β Β Β Β Laws
Β Β Β Β Statutes
Β Β Β Β Parties to a Lawsuit
Β Β Β Β Attorneys
Β Β Β Β Trials
Law
Β Β Β Β Torts
Β Β Β Β Β Β Β Β Negligence
Β Β Β Β Β Β Β Β Β Β Β Β Duty
Β Β Β Β Β Β Β Β Β Β Β Β Breach of the Duty
Β Β Β Β Β Β Β Β Β Β Β Β Injury
Β Β Β Β Β Β Β Β Β Β Β Β Proximate Causation
Β Β Β Β Β Β Β Β Β Β Β Β Damages
Β Β Β Β Β Β Β Β Determination of Duty Owed
Β Β Β Β Β Β Β Β Duty of an Outfitter
Β Β Β Β Β Β Β Β Duty of a Guide
Β Β Β Β Β Β Β Β Duty of Livery Owner
Β Β Β Β Β Β Β Β Duty of Rental Agent
Β Β Β Β Β Β Β Β Duty of Volunteer Youth Leader
Β Β Β Β Β Β Β Β In Loco Parentis
Β Β Β Β Intentional Torts
Β Β Β Β Gross Negligence
Β Β Β Β Willful & Wanton Negligence
Β Β Β Β Intentional Negligence
Β Β Β Β Negligence Per Se
Β Β Β Β Strict Liability
Β Β Β Β Attractive Nuisance
Β Β Β Β Results of Acts That Are More than Ordinary Negligence
Β Β Β Β Product Liability
Β Β Β Β Contracts
Β Β Β Β Β Β Β Β Breach of Contract
Β Β Β Β Β Β Β Β Breach of Warranty
Β Β Β Β Β Β Β Β Express Warranty
Β Β Β Β Β Β Β Β Implied Warranty
Β Β Β Β Β Β Β Β Β Β Β Β Warranty of Fitness for a Particular Purpose
Β Β Β Β Β Β Β Β Β Β Β Β Warranty of Merchantability
Β Β Β Β Β Β Β Β Β Β Β Β Warranty of Statute
Β Β Β Β Detrimental Reliance
Β Β Β Β Unjust Enrichment
Β Β Β Β Liquor Liability
Β Β Β Β Food Service Liability
Β Β Β Β Damages
Β Β Β Β Β Β Β Β Compensatory Damages
Β Β Β Β Β Β Β Β Special Damages
Β Β Β Β Β Β Β Β Punitive Damages
Statutory Defenses
Β Β Β Β Skier Safety Acts
Β Β Β Β Whitewater Guides & Outfitters
Β Β Β Β Equine Liability Acts
Β
Legal Defenses
Β Β Β Β Assumption of Risk
Β Β Β Β Β Β Β Β Express Assumption of Risk
Β Β Β Β Β Β Β Β Implied Assumption of Risk
Β Β Β Β Β Β Β Β Primary Assumption of Risk
Β Β Β Β Β Β Β Β Secondary Assumption of Risk
Β Β Β Β Contributory Negligence
Β Β Β Β Assumption of Risk & Minors
Β Β Β Β Inherent Dangers
Β Β Β Β Assumption of Risk Documents.
Β Β Β Β Β Β Β Β Assumption of Risk as a Defense.
Β Β Β Β Β Β Β Β Statutory Assumption of Risk
Β Β Β Β Β Β Β Β Express Assumption of Risk
Β Β Β Β Contributory Negligence
Β Β Β Β Joint and Several Liability
Release, Waivers & Contracts Not to Sue
Β Β Β Β Why do you need them
Β Β Β Β Exculpatory Agreements
Β Β Β Β Β Β Β Β Releases
Β Β Β Β Β Β Β Β Waivers
Β Β Β Β Β Β Β Β Covenants Not to sue
Β Β Β Β Who should be covered
Β Β Β Β What should be included
Β Β Β Β Β Β Β Β Negligence Clause
Β Β Β Β Β Β Β Β Jurisdiction & Venue Clause
Β Β Β Β Β Β Β Β Assumption of Risk
Β Β Β Β Β Β Β Β Other Clauses
Β Β Β Β Β Β Β Β Indemnification
Β Β Β Β Β Β Β Β Β Β Β Β Hold Harmless Agreement
Β Β Β Β Β Β Β Β Liquidated Damages
Β Β Β Β Β Β Β Β Previous Experience
Β Β Β Β Β Β Β Β Misc
Β Β Β Β Β Β Β Β Β Β Β Β Photography release
Β Β Β Β Β Β Β Β Β Β Β Β Video Disclaimer
Β Β Β Β Β Β Β Β Β Β Β Β Drug and/or Alcohol clause
Β Β Β Β Β Β Β Β Β Β Β Β Medical Transportation & Release
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β HIPAA
Β Β Β Β Β Β Β Β Problem Areas
Β Β Β Β What the Courts do not want to see
Statute of Limitations
Β Β Β Β Β Β Β Β Minors
Β Β Β Β Β Β Β Β Adults
Defenses Myths
Β Β Β Β Agreements to Participate
Β Β Β Β Parental Consent Agreements
Β Β Β Β Informed Consent Agreements
Β Β Β Β Certification
Β Β Β Β Accreditation
Β Β Β Β Standards, Guidelines & Protocols
Β Β Β Β License
Specific Occupational Risks
Β Β Β Β Personal Liability of Instructors, Teachers & Educators
Β Β Β Β Β Β Β Β College & University Issues
Β Β Β Β Animal Operations, Packers
Β Β Β Β Β Β Β Β Equine Activities
Β Β Β Β Canoe Livery Operations
Β Β Β Β Β Β Β Β Tube rentals
Downhill Skiing
Ski Rental Programs
Indoor Climbing Walls
Instructional Programs
Mountaineering
Retail Rental Programs
Rock Climbing
Tubing Hills
Whitewater Rafting
Risk Management Plan
Β Β Β Β Introduction for Risk Management Plans
Β Β Β Β What Is A Risk Management Plan?
Β Β Β Β What should be in a Risk Management Plan
Β Β Β Β Risk Management Plan Template
Β Β Β Β Ideas on Developing a Risk Management Plan
Β Β Β Β Preparing your Business for Unknown Disasters
Β Β Β Β Building Fire & Evacuation
Dealing with an Emergency
Β
Insurance
Β Β Β Β Theory of Insurance
Β Β Β Β Insurance Companies
Β Β Β Β Deductibles
Β Β Β Β Self-Insured Retention
Β Β Β Β Personal v. Commercial Policies
Β Β Β Β Types of Policies
Β Β Β Β Β Β Β Β Automobile
Β Β Β Β Β Β Β Β Β Β Β Β Comprehension
Β Β Β Β Β Β Β Β Β Β Β Β Collision
Β Β Β Β Β Β Β Β Β Β Β Β Bodily Injury
Β Β Β Β Β Β Β Β Β Β Β Β Property Damage
Β Β Β Β Β Β Β Β Β Β Β Β Uninsured Motorist
Β Β Β Β Β Β Β Β Β Β Β Β Personal Injury Protection
Β Β Β Β Β Β Β Β Β Β Β Β Non-Owned Automobile
Β Β Β Β Β Β Β Β Β Β Β Β Hired Car
Β Β Β Β Fire Policy
Β Β Β Β Β Β Β Β Coverage
Β Β Β Β Β Β Β Β Liability
Β Β Β Β Β Β Β Β Named Peril v. All Risk
Β Β Β Β Commercial Policies
Β Β Β Β Underwriting
Β Β Β Β Exclusions
Β Β Β Β Special Endorsements
Β Β Β Β Rescue Reimbursement
Β Β Β Β Policy Procedures
Β Β Β Β Coverage’s
Β Β Β Β Agents
Β Β Β Β Brokers
Β Β Β Β Β Β Β Β General Agents
Β Β Β Β Β Β Β Β Captive Agents
Β Β Β Β Types of Policies
Β Β Β Β Β Β Β Β Claims Made
Β Β Β Β Β Β Β Β Occurrence
Β Β Β Β Claims
Β Β Β Β Federal and State Government Insurance Requirements
Bibliography
Index
The 427-page volume is sold via Summit Magic Publishing, LLC.
Β
What is a Risk Management Plan and What do You Need in Yours?
Posted: July 25, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line Leave a commentEveryone has told you, that you need a risk management plan. A plan to follow if you have
a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?
This book can help you understand and write your plan. 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 your plan is a workable plan, not one that will create liability for you.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β PreInjury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β Β Β Β Β Β Β $130.00 plus shipping
Canβt Sleep? Guest was injured, and you donβt know what to do? This book can answer those questions for you.
Posted: July 23, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentAn 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.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β Β Β Β Β $130.00 plus shipping
Need a Handy Reference Guide to Understand your Insurance Policy?
Posted: July 18, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line Leave a commentThis book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.
Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β PreInjury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β Β Β Β Β $99.00 plus shipping
Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: April 30, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.
Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.
This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.
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.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β $99.00 plus shipping
Artwork by Don Long donaldoelong@earthlink.net
Canβt Sleep? Guest was injured, and you donβt know what to do? This book can answer those questions for you.
Posted: April 16, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentAn 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.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β Β Β Β Β $130.00 plus shipping
What is a Risk Management Plan and What do You Need in Yours?
Posted: April 11, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line Leave a commentEveryone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?
This book can help you understand and write your plan. 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 plan is a workable plan, not one that will create liability for you.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β PreInjury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β Β Β Β Β Β Β $99.00 plus shipping
Need a Handy Reference Guide to Understand your Insurance Policy?
Posted: April 2, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line Leave a commentThis book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.
Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β PreInjury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
Β Β Β Β Β Β Β Β Β Β Β Β $99.00 plus shipping
Paperwork, the death of trees and in this case the only defense the defendant had at this stage of the trial because the paperwork was not taken care of properly.
Posted: March 11, 2019 Filed under: Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Pennsylvania, Summer Camp | Tags: 1.I.L., applies, conspicuous, enforceability, factors, Forum selection clause, improper venue, Inc., Independent Lake Camp, invalid, legible, Motion to Dismiss, Notice, parties, print, terms, Venue Leave a commentThe youth camp failed to keep a good copy of the registration paperwork. What was presented to the court as a forum selection clause was illegible so the court held it was not valid.
State: Pennsylvania, United States District Court, Eastern District of Pennsylvania
Plaintiff: Ben Epps, et al.
Defendant: 1.I.L., INC., d/b/a Independent Lake Camp
Plaintiff Claims: Negligence
Defendant Defenses: Motion to Dismiss because of improper venue
Holding: For the Plaintiff
Year: 2007
Summary
Lawsuits are not games; they are not invitations to parties, there is a lot of money riding on the outcome in most cases. Documents needed for the case must be given to the attorneys defending the case in the condition in which they are maintained. In this case, a document was faxed to the defense attorneys and in such a bad way the court could not read the document. Since the court could not read the document, the court assumed the original was the same, and therefore, the document was not valid.
At the same time, if you are collecting and keeping documents that may end up in court, you need to create a system that preserves these documents in perfect condition so if they do get to court the judge can read them.
Finally, you must get the documents from the people you need a signature from in a condition the court will accept.
Facts
Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independent Lake Camp located in Orson, Wayne County, Pennsylvania. Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions.
Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.
Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania.
In Plaintiffs’ response to Defendant’s motion to dismiss, Plaintiffs argued that the blank Registration Agreement was unsigned and thus that Defendant failed to show that Plaintiffs had agreed to the terms in the document, including the forum selection clause. Plaintiffs averred by affidavit that they did not agree and would not have agreed to such a forum selection clause.
Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin.
In the copy of the signed Registration Agreement submitted by Defendant, the small print containing the terms of the agreement is blurry and barely legible. As Defendant concedes, the right-side margin, toward the bottom, is cut off, truncating the forum selection clause.
Analysis: making sense of the law based on these facts.
The defendants filed a motion to dismiss because the plaintiffs had filed the case in the wrong court according to the agreement, the registration form signed by the parents of the injured youth. The forum selection clause as defined by the courts or agreement to hold the trial at a specific court, allegedly stated the trial was to be held in Wayne County Court, Pennsylvania. The plaintiffs filed the case in the federal district our in Pennsylvania. The defendants filed a motion to dismiss from federal court and force the case to the state court.
The jurisdiction in the case was going to be Pennsylvania law no matter what; however, the trial would not be held in the back yard of the defendant, which is normally a good thing for the defendant.
When in the federal district court system, if a forum selection clause is upheld the case is simply transferred to the proper court. However, in this case because the selection clause stated a state court the case could not be transferred. The case would be dismissed at the federal court. The case could be refiled in the state court at that time if the statute of limitations had not run.
However, here, the document that was presented to the court that was the alleged agreement by the parents to only sue in state court was not legible.
The court agrees that the small print of the forum selection clause in the photocopied and faxed signed Registration Agreement is blurry and illegible, and does not provide reasonable notice of its terms. The court cannot assume that Mr. Epps signed a clear version of the agreement that became blurry and illegible upon subsequently being photocopied and faxed, because such evidence is not before the court. There is no evidence that Plaintiff Ben Epps signed any version of the Registration Agreement other than the document provided to the court.
Further, even if the forum selection clause were legible, it’s essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.
The court concludes that the forum selection clause is inconspicuous and does not give notice of its terms to a reasonable person in violation of strong Pennsylvania public policy. The forum selection clause therefore is unreasonable, invalid, and unenforceable. Because the court finds that the forum selection clause is unreasonable and invalid, it does not address the private and public factors as transfer considerations under Β§ 1404(a).
The agreement was a copy that had been faxed, was illegible and could not be read by the court.
Since the court could not read the document, the legal wording was incomplete and the entire document had sections missing the court could not find there was an agreement. The motion to change venue was dismissed.
So Now What?
I would guess the camp had received the faxed copy from the parents. There would be no need to fax the documents around the camp. The camp probably had sent the documents to the parents for their signature, and they had faxed them back. This was mistake one, because the camp accepted a badly faxed copy of the document.
- When you receive an email, fax, or original where you cannot make out what is going on, signature seems off, the document is unreadable, you must get a good copy. Tell the signor to do it again and make the copy legible.
- Set up a system to check documents when they come in.
- Set the system up with enough time so that is time to correct problems. Don’t place yourself in a position where you are balancing the money coming in versus proper paperwork you need.
Second, the camp seemed to not locate the original fax, but only had a copy of the faxed document.
- Develop a system to store and maintain the documents. Now day’s scanners are so efficient all the documents can be scanned and maintained in seconds. The original paper documents can be preserved and kept for the statue of limitations for the state, and a good electronic copy is also available.
Don’t allow a kid or adult to come to camp, attend the program, participate in the activity unless you have all the paperwork you need, signed and in a good legible condition. Then and only then cash the check and open the gates.
What do you think? Leave a comment.
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
To see Jimβs complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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By Recreation LawΒ Β Rec-law@recreation-law.comΒ Β Β Β Β Β James H. Moss
@2019-2023 Summit Magic Publishing, LLC
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forum selection clause, venue, parties, improper venue, enforceability, terms, legible, notice, motion to dismiss, conspicuous, applies, factors, invalid, print, 1.I.L., INC., Independent Lake Camp, forum selection clause,
Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588
Posted: March 10, 2019 Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Minors, Youth, Children, Pennsylvania, Summer Camp | Tags: 1.I.L., applies, conspicuous, enforceability, factors, Forum selection clause, improper venue, Inc., Independent Lake Camp, invalid, legible, Motion to Dismiss, Notice, parties, print, terms, Venue Leave a commentTo Read an Analysis of this decision see
Paperwork, the death of trees and in this case the only defense the defendant had at this stage of the trial because the paperwork was not taken care of properly.
Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588
Ben Epps, et al., Plaintiffs, v. 1.I.L., INC., d/b/a Independent Lake Camp, Defendant.
Civil Action No. 07-02314
United States District Court, Eastern District of Pennsylvania
December 19, 2007
ORDER
MEMORANDUM
James T. Giles J.
I. Introduction
Before the court is Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Plaintiffs, Bens Epps and Amy Monroe, as parents and natural guardians of Axel Epps and in their own right, bring suit based in diversity jurisdiction, 28 U.S.C. Β§ 1332, against Defendant 1.I.L. Inc. for personal injuries allegedly sustained by their son, Axel, while attending Defendant’s camp.
The primary issue raised by Defendant’s motion and determined by the court is whether the forum selection clause in the Registration Agreement at issue is valid and enforceable. The court finds that the forum selection clause contained in the signed Registration Agreement is not enforceable because it does not provide reasonable notice of its terms. The court concludes that Plaintiffs have brought suit in a proper venue and denies Defendant’s motion to dismiss for the reasons that follow.
II. Factual Background
Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independant Lake Camp located in Orson, Wayne County, Pennsylvania. (Pls.’ Compl. ΒΆ 6.) Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. (Pls.’ Compl. ΒΆ 7.) Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions. (Pls.’ Compl. ΒΆ 8.)
Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. (Pls.’ Compl. ΒΆ 9.) Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.
Plaintiffs, citizens of New York, brought suit in the Eastern District of Pennsylvania because Defendant is a citizen of Pennsylvania with offices in both Montgomery County and Wayne County. (Pls.’ Compl. ΒΆ 1-4; Pls.’ Br. in Supp. of Ans. to Mot. of Def. to Dismiss for Improper Venue (“Pls.’ Supp. Ans.”) 1; Def.’s Br. in Supp. of Mot. to Dismiss for Improper Venue (“Def.’s Supp.”) 1, 5.) Plaintiffs demand damages in excess of $150,000 for each of the two counts in the complaint as well as interest and costs of the suit.
III. Procedural History
Plaintiffs filed their Complaint on June 7, 2007. Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. (Def.’s Mot. to Dismiss 2.) Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. (Def.’s Mot. to Dismiss, Ex. A.) Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania. (Def.’s Mot. to Dismiss, Ex. A.) The blank Registration Agreement, in which the print is small but clear and legible, provides in part:
It is agreed that any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.
(Def.’s Mot. to Dismiss, Ex. A.)
In Plaintiffs’ response to Defendant’s motion to dismiss, Plaintiffs argued that the blank Registration Agreement was unsigned and thus that Defendant failed to show that Plaintiffs had agreed to the terms in the document, including the forum selection clause. Plaintiffs averred by affidavit that they did not agree and would not have agreed to such a forum selection clause. (Pls.’ Supp. Ans. 2, Ex. B ΒΆΒΆ 2-3 (Ben Epps Aff.), Ex. C ΒΆΒΆ 2-3 (Amy Monroe Aff.).)
Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. (Gould Aff. ΒΆΒΆ 5, 7-10.) He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. (Gould Aff. ΒΆ 10.) The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin. (Gould Aff. Ex. A (Signed Registration Agreement).)
In the copy of the signed Registration Agreement submitted by Defendant, the small print containing the terms of the agreement is blurry and barely legible. As Defendant concedes, the right-side margin, toward the bottom, is cut off, truncating the forum selection clause. (Gould Aff. ΒΆ 6, Ex. A.) Consequently, if the print were clearly legible, when compared with the clear, blank version of the agreement, the forum selection clause would read:
It is agree [sic] any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in V [or three-quarters of a W] County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.
(Gould Aff. Ex. A.) Thus, if legible, most or all of the letters in the word “Wayne,” as in “Wayne County Pennsylvania,” are missing. (Gould Aff. ΒΆ 6, Ex. A.)
In Plaintiffs’ reply to Defendant’s affidavit, Plaintiffs do not dispute that Plaintiff Ben Epps’ signature appears on the copy of the Registration Agreement. Nor do Plaintiffs argue that the entire agreement itself is invalid. (Compare Pls.’ Supp. Ans. 2-3 (arguing, before Defendant’s production of a signed agreement, that the Registration Agreement was not enforceable because there was no objective manifestation of the parties’ intention to be contractually bound), with Pls.’ Reply to Def.’s Aff. 1 (arguing, after Defendant’s production of a signed Registration Agreement, that there was no meeting of the minds as to the forum selection clause because the wording of the clause was truncated and indiscernible).) Thus, the issue determined by the court is the enforceability of the forum selection clause.
III. Discussion
Federal law applies in the determination of the effect given to a forum selection clause in diversity cases. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995) (quoting Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir. 1990)). To evaluate the enforceability of the forum selection clause here, the court determines if the standard for dismissal or transfer is proper.[1] See id. at 877-78. If the standard for transfer applies, the court then determines if the forum selection clause is reasonable. See id. at 880 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972)).
A. Dismissal or Transfer under 28 U.S.C. Β§ 1404(a) or 1406.
Although dismissal is a “permissible means of enforcing a forum selection clause that allows suit to be filed in another federal forum,” the Third Circuit cautions that “as a general matter, it makes better sense, when venue is proper but the parties have agreed upon a not- unreasonable forum selection clause that points to another federal venue, to transfer rather than dismiss.” Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298-99 (3d Cir. 2001); see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 28-29, 32 (1988) (holding that a federal court sitting in diversity jurisdiction should treat a request to enforce a forum selection clause in a contract as a motion to transfer venue under applicable federal law, 28 U.S.C. Β§ 1404(a)); 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure Β§ 3803.1 (2d ed. 1986 & Supp. 2006).
Transfer, however, is not available when a forum selection clause specifies a non-federal forum. Salovaara, 246 F.3d at 298. The forum selection clause in the Registration Agreement, if valid and untruncated, would provide that “any dispute . . . can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania” and does not limit jurisdiction to state court. The provision’s plain language is construed to permit the action in any court of the county, including the federal court in the federal judicial district encompassing Wayne County, Pennsylvania, regardless of whether the federal court is physically located in the county. See Jumara, 55 F.3d at 881 (construing an arbitration provision requiring the action to transpire within a particular county to mean that the action would be permitted in any court, state or federal, with jurisdiction encompassing that county). Transfer is an available remedy because the forum selection clause, if valid and untruncated, includes a federal forum. See id. at 881-83 (applying the Β§ 1404(a) analysis for transfer where a forum selection clause permitted any state or federal forum within a particular county).
Because transfer is the appropriate remedy, the court must then consider whether 28 U.S.C. Β§ 1404(a) or Β§ 1406 applies. “Section 1404(a) provides for the transfer of a case where both the original venue and the requested venue are proper. Section 1406, on the other hand, applies where the original venue is improper and provides for either transfer or dismissal of the case.” Id. at 878. Whether venue is proper in this district is governed by the federal venue statute, 28 U.S.C. Β§ 1391. Id.
Without considering the forum selection clause, venue is proper in the Eastern District of Pennsylvania. Neither party disputes that Defendant is subject to personal jurisdiction in this district because Defendant transacts business here. See 28 U.S.C. Β§ 1391(c); Jumara, 55 F.3d at 878-79; Stewart, 487 U.S. at 29 n.8 (“The parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U.S.C. Β§ 1406(a) because respondent apparently does business [there].”); see also (Pls.’ Supp. Ans. 1; Def.’s Supp. 3). This court therefore concludes that the appropriate analysis is whether the case should be transferred under Β§ 1404(a). See Salovaara, 246 F.3d at 298-99.
B. Transfer under 1404(a) Is Improper Because the Forum Selection Clause Is Unreasonable and Unenforceable.
Section 1404(a) controls the inquiry of whether to give effect to a forum selection clause and to transfer a case.[2] Stewart, 487 U.S. at 29, 32. Before considering the factors under Section 1404(a), the court first examines the validity or reasonableness of the forum selection clause through application of the test in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972). “Where the forum selection clause is valid, which requires that there have been no ‘fraud, influence, or overweening bargaining power,’ the plaintiffs bear the burden of demonstrating why they should not be bound by their contractual choice of forum.” Jumara, 55 F.3d at 879-80 (quoting Bremen, 407 U.S. at 12-13).
A forum selection clause is unreasonable and invalid if the objecting party demonstrates that (1) the forum selection clause is the result of fraud or overreaching, (2) its enforcement would violate a strong public policy of the forum, or (3) its enforcement would result in litigation so seriously inconvenient and unreasonable that it would deprive a litigant of his or her day in court. Bremen, 407 U.S. at 15-17; In re Diaz Contracting, Inc., 817 F.2d 1047, 1051-52 (3d Cir. 1987).
To dispose of this issue, the court need only address whether the enforcement of the forum selection clause violates a strong public policy of the forum. Under Pennsylvania law, a clause in a contract must be conspicuous, so as to provide notice of its terms to a reasonable person. See, e.g., 13 Pa.C.S. Β§ 2316 (requiring that limitation of warranties terms be conspicuous); 13 Pa.C.S. Β§ 1201 (defining “conspicuous”); Beck-Hummel v. Ski Shawnee, Inc., 2006 Pa. Super 159, P23-24 & n.12-13 (Pa. Super. Ct. 2006) (relying on the requirement for conspicuous terms in the sale of goods context in a case involving the sale of services, and finding that disclaimer language on a ski ticket was not sufficiently conspicuous to put a purchaser on notice of its contents). Plaintiffs argue that the forum selection clause contained in the signed Registration Agreement is invalid because the wording of the clause is “truncated and indiscernible.” (Pls.’ Reply 1.)
The court agrees that the small print of the forum selection clause in the photocopied and faxed signed Registration Agreement is blurry and illegible, and does not provide reasonable notice of its terms. The court cannot assume that Mr. Epps signed a clear version of the agreement that became blurry and illegible upon subsequently being photocopied and faxed, because such evidence is not before the court. There is no evidence that Plaintiff Ben Epps signed any version of the Registration Agreement other than the document provided to the court.
Further, even if the forum selection clause were legible, its essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.
The court concludes that the forum selection clause is inconspicuous and does not give notice of its terms to a reasonable person in violation of strong Pennsylvania public policy. The forum selection clause therefore is unreasonable, invalid, and unenforceable. Because the court finds that the forum selection clause is unreasonable and invalid, it does not address the private and public factors as transfer considerations under Β§ 1404(a).
V. Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss for Improper Venue is denied. An appropriate order follows.
ORDER
AND NOW, this 19th day of December, 2007, upon consideration of Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue (Doc. No. 4), Plaintiffs’ Response in opposition thereto, Defendant’s Affidavit of Daniel Gould and Exhibits (Doc. Nos. 8 & 9), and Plaintiffs’ Reply, it is hereby ORDERED that said motion is DENIED for the reasons set forth in the attached memorandum.
Notes:
[1] Prior to Defendant’s production of a signed Registration Agreement, Plaintiffs argued that the forum selection clause should not be enforced because it did not meet the standard of reasonable communicativeness, as set forth in Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir. 1987), due to the agreement’s small print. Marek applies primarily in cases involving maritime law. See, e.g., Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 130 (3d Cir. 2002); Hodes v. S. N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 906, 909-12 (3d Cir. 1988). As discussed below, the court follows more recent Third Circuit precedent on the enforceability of forum selection clauses.
[2] Section 1404(a) provides that “a district court may transfer any civil action to any other district or division where it might have been brought” for “the convenience of parties and witnesses” and “in the interest of justice.” 28 U.S.C. Β§ 1404(a); see Stewart, 487 U.S. at 29. Courts must adjudicate motions to transfer based on an “individualized, case-by-case consideration of convenience and fairness,” weighing a number of factors. Id. (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). A court’s review is not limited to the three enumerated factors in Β§ 1404(a) β convenience of the parties, convenience of witnesses, or interests of justice β and courts may consider various private and public interests. Jumara, 55 F.3d at 879-80.
The parties’ agreement as to the proper forum, although not dispositive, receives “substantial consideration” in the weighing of relevant factors. Id. at 880; see Stewart, 487 U.S. at 29-30 (“The presence of a forum selection clause . . . will be a significant factor that figures centrally in the district court’s calculus. . . . The flexible and individualized analysis Congress prescribed in Β§ 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.”). The deference generally given to a plaintiff’s choice of forum is “inappropriate where the plaintiff has already freely chosen an appropriate venue.” Jumara, 55 F.3d at 880.
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Posted: May 28, 2018 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, and Law, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Risk Management Leave a commentThis book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.
Table of Contents
Chapter 1Β Β Β Β Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2Β Β Β Β U.S. Legal System and Legal Research
Chapter 3Β Β Β Β Risk 25
Chapter 4Β Β Β Β Risk, Accidents, and Litigation: Why People Sue
Chapter 5Β Β Β Β Law 57
Chapter 6Β Β Β Β Statutes that Affect Outdoor Recreation
Chapter 7Β Β Β Β PreInjury Contracts to Prevent Litigation: Releases
Chapter 8Β Β Β Β Defenses to Claims
Chapter 9Β Β Β Β Minors
Chapter 10Β Β Β Β Skiing and Ski Areas
Chapter 11Β Β Β Β Other Commercial Recreational Activities
Chapter 12Β Β Β Β Water Sports, Paddlesports, and water-based activities
Chapter 13Β Β Β Β Rental Programs
Chapter 14Β Β Β Β Insurance
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I see franchises or businesses with multiple locations using the same release at all locations. You may be losing out on an opportunity, worse setting yourself up to lose 90% of the time.
Posted: January 31, 2018 Filed under: Jurisdiction and Venue (Forum Selection), Release (pre-injury contract not to sue) | Tags: Jurisdiction, Jurisdiction and Venue (Forum Selection), Jurisdiction and Venue Clause, Release, Venue, Waiver Leave a commentIf one of the states you have a location has better laws supporting the use of a release than your home state, change the jurisdiction and venture clause to that state. On top of getting better release law you’ll be less likely to have a jurisdiction and venue fight. If your jurisdiction and venue clause have no relationship to the defendant, the accident or location, you are probably going to have one anyway.
Summary
Jurisdiction and venue clauses are important in a release. Plaintiff’s are working harder at voiding the jurisdiction and venue clause in releases when they have little or no real relationship with where the accident happened.
If you are writing releases for a business with multiple locations, you might look at the jurisdiction and venue clause in each location in relation to the law of the location and the chances the plaintiff will be successful in his or her attempt to void the jurisdiction and venue clause.
Do Something
I argue, plead and write a lot about jurisdiction and venue clauses. They are the second most important clause in a release after the negligence clause. (See Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases.) A venue clause states where any lawsuit is going to be held, and the jurisdiction identifies the law to be applied. These sections or clauses have to have a relation to the location of the accident. (See Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.)
At the same time, not all states support releases the same way. Several states do not allow the use of releases. (See States that do not Support the Use of a Release.) Some states allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) And every state treats releases differently. Some making it much harder to write a release correctly then others.
On top of that you want to create a barrier, if possible, to a lot of litigation by making a lawsuit difficult for the plaintiff. Making the plaintiff find an attorney and litigate in a state where they do not live makes filing a lawsuit much more difficult. Many plaintiffs will spend years trying to sue in their own state. In Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569; 2007 Tex. LEXIS 188; 50 Tex. Sup. J. 498, the plaintiff’s filed a lawsuit in Texas in 2001 and six years later the Texas Supreme Court dismissed it and sent it to Arizona where the trip occurred, and the accident happened.
Jurisdiction and venture clauses are critically important in a good release.
At the same time, cookie-cutter law is not good, even in some releases. In reviewing the reports of a fatality, the other day, I found the business release on line. The release had a jurisdiction and venue clause which sent the lawsuit back to California where the company office was. The fatality occurred in Colorado. Colorado and California law on releases is similar, both are supportive of releases and both allow a parent to sign away a minor’s right to sue.
The company had more than seventy facilities in North America, including several in states where releases are void. The home office is based in California, although that took some work to find, with a Utah area code for a phone number. On a hunch, I checked with the Utah Secretary of State and found several companies and corporations with the same name. Guessing, either the business started in Utah and moved to California or the business is based in Utah and using an office in California for the basis for jurisdiction and venue in its release.
If the latter is the case, the lawsuit, even with the release, it would be easy to bring suit in Utah and argue the lawsuit should be there.
Worse, the operations are franchised from a Utah or California home office, and the business is owned by a different group of entities or people within each state. Colorado has several companies with the name. Alternatively, every time the company opens a location it creates an LLC for each location.
Each of these creates the possibility of a good argument for voiding the jurisdiction and venue clause in the agreement. There is a better relationship between the parties, plaintiff and defendant, and more reasons to sue where the accident happened.
Either way, as you can see there are numerous ways to argue, successfully or not that the jurisdiction and venue clause should be ignored in a specific case.
What does this lead too? If the plaintiff’s attorney does a little investigation, they can start and make a good argument that the jurisdiction and venue clause should be in a different location, then where it says. Those arguments would be:
- The location of the jurisdiction and venue clause has nothing to do with the location of the accident or the defendant’s location. (See Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.)
- The location of the defendant is not where the jurisdiction and venue clause states the defendant is located. The defendant is the company created in and located in the state where the accident happened. (The franchise or each operation is a separate LLC argument.)
- The defendant is using this state for its jurisdiction and venue clause to take advantage of good state law on jurisdiction and venue or to avoid bad law on releases. (The common argument that is made.)
Whatever reason you need to write the jurisdiction and venue clause in a release, now days it has to have a greater relationship with the accident location because it will come under greater scrutiny that it did a few years ago.
Blanket cookie cutter releases will not work in the future. Plaintiffs have determined new ways to force possible defendants to come to their location to defend a lawsuit.
Make sure you understand the law of the state where you think you want the lawsuit or the law of the state where the lawsuit could be and pick the one with the greatest chance of success based on the law concerning releases and the issues of jurisdiction and venue.
What do you think? Leave a comment.
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Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.
Posted: April 3, 2017 Filed under: Jurisdiction and Venue (Forum Selection), Release (pre-injury contract not to sue), Skiing / Snow Boarding, Vermont | Tags: Amateur Racing, Choice of Law, Click Wrap Agreements. Nexus, Electronic Click Wrap Agreements, Jurisdiction, Jurisdiction and Venue (Forum Selection), Legal Relationship, Okemo, Ski Racing, United States Ski Association, USSA, Venue, Vermont Leave a commentThis is not the first decision Iβve read where the United States Ski Association (USSA) had its release laughed out of court. The court found ZERO legal arguments for the jurisdiction and venue clause in the release used.
Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011
State: Vermont, United States District Court for the District of Vermont
Plaintiff: Brian J Tierney
Defendant: Okemo Limited Liability Company, d/b/a Okemo Mountain Resort, and The United States Ski and Snowboard Association,
Plaintiff Claims: alleging negligent installation of safety netting during a downhill alpine ski race
Defendant Defenses: Release
Holding: for the plaintiff
Year: 2016
The United States Ski Association (USSA) has members sign a release online before they can participate in any USSA as a ski race. Ski areas rely on this release when holding USSA sanctioned races. The USSA release, however, is a poorly written document and time after time the ski areas, and the USSA lose a lawsuit by a plaintiff because they relied on the USSA release.
The number-oneΒ reason why the USSA as a release is thrown out by the courts is the jurisdiction and venue clause. Jurisdiction is the law that will be applied case and venue is the actual location of where the trial will be held. The USSA release says the jurisdiction for any case is Colorado. The problem is unless the accident occurred in Colorado; no other relationship exists between Colorado and the parties to the lawsuit.
The USSA is based, located, in Utah. In this case, the defendant ski area was located in Vermont. There were zero relationships between the USSA in Utah the ski area in Vermont and the injured plaintiff who was from New York, and the state of Colorado.
Consequently, the court throughout the jurisdiction and venue clause and found as 99% of most courts would that the location of the lawsuit should be Vermont, the place where the accident happened.
Vermont, however, does not recognize releases. (See States that do not Support the Use of a Release.).
The plaintiff argued the release was invalid because a copy with his signature could not be produced. The plaintiff signed and agreed to the documentation, including the release when he became a member of the USSA. The plaintiff argued in court that he did not remember signing or agreeing to the release. However, the USSA couldΒ show through their IT expert the only way that the plaintiff could have become a member of the USSA was by signing the release. You either had to click on and accept the release, or you could go no further in signing up to be a member of the USSA.
The plaintiff was injured while competing in amateur downhill ski race at the defendant ski area at Okemo Mountain resort. The USSA sanctioned the race. To be eligible to participate in the race a person had to be a USSA member, had to have conducted a visual inspection of course, and had to have taken at least two official training runs prior to the race.
The defendant filed a motion for summary judgment based on the release. This ruling denied the motion for summary judgment.
Analysis: making sense of the law based on these facts.
The court first commented on the jurisdiction and venue issue.
The release also contained a choice-of-law provision, which stated that it would be “construed in accordance with, and governed by the substantive laws of the State of Colorado, without reference to principles governing choice or conflict of laws.”
The court then went through the various arguments of the plaintiff and defendant concerning the motion to dismiss, first off, with the plaintiffβs argument that he never remembered signing the release could not have signed release. The court termed the online release as a clip wrap release. This means that the release could not have been rejected by the plaintiff because the website only allows you to go forward after clicking yes to the release.
Because the click-wrap technology does not permit the customer to continue to use the website, unless he or she clicks on the required box on the screen, courts have accepted proof of use at the site as evidence of the customer’s agreement.
The court stated that generally clip wrap releases are upheld. The court went through several different decisions where clip-wrap releases had been decided. The court concluded that the plaintiff had to have signed the release because the plaintiff admitted that he had been charged for his USSA membership on his credit card and received an email about his membership from the USSA. βPlaintiff admits that he received a confirmation email from USSA and that his credit card statement reflects a payment for his USSA membership.β
The court then went into the choice of law clause. That means the jurisdiction and venue clause. A choice of law clause is not a clause that is controlled strictly by the contract.
Whenever there is a decision based on what law shall apply the law where the accident happened or where the court is sitting is the law that is applied to determine what law will apply. In many cases, such as this one, the choice of law decision leans toward granting the choice of law to the place where the test is being determined.
“The validity of a contractual choice-of-law clause is a threshold question that must be decided not under the law specified in the clause, but under the relevant forum’s choice-of-law rules governing the effectiveness of such clauses.” As this is a diversity action, the court looks to Vermont’s choice-of-law rules to determine which law applies.
A jurisdiction and venue clause is also not solely determined based on the four corners of the document. Meaning, just because you have a jurisdiction and venue clause in the document does not mean that is what is going to be upheld by the court. Here the court applied the choice of laws test as set forth in Vermont to determine what law should apply in governing where the suit in the law to be applied is suit to take place.
Simply put the court found there was no relationship between the choice of law clause in the release and the parties or where the accident occurred. The test for what choice of law applies a substantial relationship test. That means that the law that should be applied should be the one that has the greatest relationship to the parties and or the location of the incident giving rise to the lawsuit. In this case the court found, there was no relationship to the parties of the transaction. Plaintiff was a resident of New York the USSA was a Utah corporation, and the defendant ski area was a defendant was a Vermont location.
The arguments made by the USSA as an aid to justify Coloradoβs choice of law clause were just plain weak. They argued that the majority of their races occurred in Colorado and that there was a good chance that the plaintiff would race in Colorado. The court found neither of those arguments to be persuasive.
The chosen state of Colorado has no “substantial relationship” to the parties or the transaction. Plaintiff is a resident of New York. USSA is a Utah corporation and Okemo is a Vermont entity. The incident in question did not occur in Colorado. The only facts Defendants have offered in sup-port of applying Colorado law to this case are: (1) Colorado is home to more USSA member clubs than any other state and hosts the majority of USSA’s major events, and (2) there was a possibility that Plaintiff could have competed in Colorado at some point during the relevant ski season. The court finds that such a tenuous and hypothetical connection does not vest in the state of Colorado a substantial relationship to the parties or specific transaction at issue in this case.
The court did find that Vermont had a substantial and significant interest in the transaction. The defendant was based in Vermont. The accident occurred in Vermont. The plaintiff was issued a lift ticket by the defendant ski area that required all disputes to be litigated in Vermont. The plaintiff participated in the inspection and training runs as well as the race in Vermont.
In contrast, Vermont’s relationship to the parties and transaction is significant. Okemo is a Vermont corporation, the competition was held in Vermont, Plaintiff was issued a lift ticket by Okemo requiring all disputes to be litigated in Vermont, Plaintiff participated in inspection and training runs in Vermont, and Plaintiff’s injury occurred in Vermont.
(Of note is the fact the court looked at the writing on the lift ticket as a quasi-contract. Rarely are lift tickets anything more than simple βsignsβ providing warnings rather than contracts or quasi contracts. See Lift tickets are not contracts and rarely work as a release in most states.)
The court then took apart the choice of law provision in the USSA release. It found no substantial relationship of the parties to the transaction in Colorado. The minimal facts offered by the USSA to support Colorado did not establish a reasonable basis for choosing Colorado.
The court also reasoned that finding Colorado as the applicable choice of law would violate a fundamental policy of Vermont law, which is releases for skiing or void under Vermont law.
First, applying Colorado law would undoubtedly produce a result contrary to a fundamental policy of Vermont. Whereas exculpatory clauses in ski contracts have been held to be enforceable under Colorado law, courts applying Vermont law consistently hold such re-leases to be void as contrary to important public policies of the state.
The court also found the Vermont had a materially greater interest in case then Colorado. Coloradoβs interest in the case is minimal. Vermont had a great interest in applying Vermont law to issues, transactions and accidents that occur in Vermont. Skiing is a significant and important recreational activity in Vermont, and the Vermont Supreme Court has repeatedly stated that they have a significant interest in holding ski resorts responsible for skier safety in Vermont.
Second, Vermont has a “materially greater interest” than Colorado in the determination of this issue.4 Colorado’s interest in this case is minimal. The fact that Plaintiff may have competed there in the course of the relevant ski season and that USSA hosts many events in that state does not create a significant interest in a case concerning a Vermont ski race. Conversely, Vermont’s interest is plain. Vermont has a general interest in having its laws apply to contracts governing transactions taking place within the state. Vermont also has a significant interest in the conduct at issue here. Skiing is an important recreational activity for Vermonters and those visiting the state, and the Vermont Supreme Court has repeatedly noted its interest in holding ski resorts responsible for skier safety.
The court then held the choice of law provision in the USSA release did not control, and the Vermont law would apply to this case.
Under Vermont law releases for skiing activities are unenforceable. (See Federal court voids release in Vermont based on Vermontβs unique view of release law). The Vermont Supreme Court had determined that it was a violation of public policy under Vermont law to allow ski area to use a release to avoid liability for its own negligence. The court used a totality of the circumstances test to make the determination that the ski areas had the greater responsibility and the greater ability to keep its patrons out of harmβs way.
The Court concluded that “ultimately the determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” It then went on to make its public policy determination largely on the basis of two factors derived from the seminal case of Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963): (1) ski areas are open to the general public without regard to special training or ability, and (2) the longstanding rule that premises owners are in the best position to assure for the safety of their visitors.
(Using Tunkl to void a release seems to be an extremely odd reading of Tunkl. The Tunkl decision is a California case setting forth requirements for Assumption of the Risk.)
The court also looked at the difference between skiing in Vermont participating in a ski race. Here too though, the Vermont Supreme Court already ruled. The Vermont Supreme Court found that there was really no difference between ski racing and skiing in Vermont, and the releases would be void in both cases.
There had been Vermont decisions upholding release law based on restricted access to the race or because total control for the majority the control for the welfare of the racers was in the racer’s hands. These decisions concerned motorcycle racing.
The defendant argued that ski racing was much like motorcycle racing in Vermont. However, the court found that although membership in the motorcycle racing was restricted, it was not restricted in the ski racing case. Any person could become a member of the USSA, and any person could race, as long as they inspected the course and made two runs and. That effectively was not a bar to anyone participating in the race.
The Court saw “no salient distinctions between [its case] and making clear that, under Vermont law, ski areas and sport event organizers will not be absolved from liability by virtue of an exculpatory clause even in the context of amateur racing.
The court in evaluating the release law and ski areas in Vermont determined that the cases were based on a premise’s liability argument. Premise’s liability says that the owner of the land has a duty to inform guests of the risks on the land. This responsibility included eliminating any known risks or risk the by the landowner should discover. It did not find in the motorcycle cases that a premise’s liability relationship existed because the risk was largely in control of the racer on the motorcycle.
Consequently, the court ruled that the release was invalid under Vermont law, and dismissed the defendantβs motion for summary judgment.
So Now What?
I suspect that USSA wanted to take advantage of the Colorado Statute that allows a parent to sign away a minorβs right to sue: Colorado Revised Statutes 13-22-107. Coloradoβs release law is clearer and there is no issue with a release stopping suits by ski areas. Utah has mixed issues with releases and ski areas. However, to use Colorado as the site of the lawsuit, there must be a nexus to the state of Colorado, not just one created on paper.
Not only must the language stating the jurisdiction and venue be correct; the clause must also contain the reasoning why the jurisdiction and venue should be in a location other than location where the accident happened. In this case that would mean that there was an agreement between the parties that outlined all the reasons why the lawsuit should be brought back to Utah would be the only state, based on the contractual law of Utah.
I doubt there is any way that you could really write a release based on the law of a state that had no relationship, no nexus, to the accident or the parties in the case.
Vermont was the obvious answer, and that is what the court found. They mightβve been able also argued New York law, which wouldβve been better than Vermont law. However, that would require them to litigate a case wherever the people who are racing in their events are located.
To be effective the jurisdiction and venue claw must have a nexus to either the parties in the case of the place of the accident occurred. USSA could move to Colorado, and that would provide a much better argument that Colorado law could apply. The USSA could argue that since they’re facing litigation from across the United States that they need to have one law apply to their releases and lawsuits, and that law should be the law where the located.
Whenever youβre stretching the jurisdiction and venue clause, you need to make sure that you incorporate in the clause all the legal reasons for picking the venue where the clause says the accident or location will occur. You just canβt state venue, and jurisdiction will be here.
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βMarketing makes promises Risk Management has to pay forβ in this case, the marketing eliminated the protection afforded by the warning labels
Posted: March 20, 2017 Filed under: Assumption of the Risk, Health Club, Jurisdiction and Venue (Forum Selection), New York, Pennsylvania | Tags: assumption of the risk, Causation, Cornell, Cornell University, Failure to Warn, Gym, Gymnastic, Open and Obvious, Punitive damages, Summary judgment, Tumbl Trak Leave a commentCornell and a manufacturer of a piece of equipment used in a gym at Cornell were being sued by an injured student who used the equipment. The court definitely was leaning towards the student; however, the student had come to court prepared, (and backed by a lot of money Iβm guessing.)
Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412
State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania
Plaintiff: Randall Duchesneau
Defendant: Cornell University and Tumbltrak
Plaintiff Claims: Product Liability, Failure to Warn, requesting punitive damages
Defendant Defenses:
Holding: No duty, Failure to state a claim, Assumption of Risk & Release?
Year: 2012
This case spent four years getting to this point, and it is obvious the court is a little tired of the litigation. Consequently, the facts are difficult to determine.
It seems the plaintiff was a beginning gymnast and injured himself on a piece of equipment at the Cornell University gym called the Tumbletrak. The extents of his injuries are never clear, but based on the number of experts the plaintiff hired and the lengthy fight; I guess his injuries were extensive.
This case was being heard in a Pennsylvania Federal Court with a Michigan and a New York Defendant. That fact alone is confusing.
The decision is based on motions for summary judgment filed by both Cornell and the manufacturer Tumbletrak.
Analysis: making sense of the law based on these facts.
The court first examines the manufactureβs motion for summary judgment. The first issue the manufacturer claimed the plaintiff failed to establish the minimum facts necessary to go to trial; the plaintiff is not entitled to punitive damages, and the plaintiff assumed the risk. The court first looked at what was required to establish a failure to warn case. Meaning a manufacturer has a duty to warn users of the product of the risks and failed to do so.
Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause of the injury to plaintiff; and (4) the plaintiff suffered loss or damage.
The burden is on the plaintiff to prove the failure to warn of the risk by the manufacturer was the cause of the plaintiffβs injury.
This burden includes adducing proof that a user of the product at issue would have read and heeded a warning had one been given. Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.”
Failure to warn can be denied both by proving the plaintiff read and heeded the risk or knew of the risk prior to using the equipment. The manufacturer argued the risk was open and obvious, which does not require proof because the plaintiff should have seen the risk.
T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding
In a footnote at this point, the court states the plaintiff signed a release stating he understood the risks; however, nothing else is mentioned about the release in the rest of the decision.
One way to defend against a motion for summary judgment is to argue there are enough facts or issues that make the facts relied upon by the defendant an issue.Β Meaning if enough facts are in dispute, the motion for summary judgement cannot be granted. This is what the plaintiff did through his experts.
Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. [Emphasize added]
Here the manufacturer shot his defense down before the product left the assembly plant by confusing risk management and marketing. Teddy bears doing the activities unspotted that the warning allegedly warns against eliminated the warning in the court’s eyes. (And rightfully so!) If the manufacturer shows cartoons doing the act without regard for safety, then the act must be safe, no matter what the warning says. If the warning can be located.
In a scary statement, the court held that failure to read the warnings on the product is not an issue in a failure to warn case.
However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”
The court based this analysis on the many different statements by witnesses who seemed to go in every direction, but all stated they never saw the warning.
Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter.
A warning does not exist unless the consumer canβt miss it. Meaning the warning must be in the consumerβs face every time they go to use a product. On top of that the warning must be in the manual, in some states on the packaging and maybe on a hangtag with the product.
The failure to warn claim was sustained and would be decided at trial.
The court then looked at the assumption of the risk defense brought by the defendant manufacturer. The court started this analysis looking at the requirements to prove a negligence claim in a product case.
To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff.
However, assumption of the risk in a product’s case is a little more stringent then in a recreation case. βAssumption of risk is frequently applied to claims arising out of participation in sporting events.β In sporting or recreation cases, the risk is clear and understood by all involved and to be effective the risk was not altered or enhanced by the defendant. In a product’s case the requirements are slightly different.
Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. To establish assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” This determination depends in part on the openness and obviousness of the risk.
Again, the case goes back to did the plaintiff know of the risks. Where the risks open and obvious or can you prove under the law the plaintiff knew of the risk. Because no one ever saw the warning, the warning had no value. That left it up to a jury to decide if the plaintiff knew the risk of the sport or activity.
The next argument was a motion to eliminate a punitive damages claim by the manufacturer arguing the case should be tried under Michigan’s law because the manufacturer was based in Michigan. Michigan does not allow punitive damages, unless they are expressly authorized by statute.
There has been a prior argument about the jurisdiction and venue of the case decided by a prior judge. (Which is alone confusing since none of the defendants are located in Pennsylvania where the court sits, however, the court is applying New York law?) Because of the prior decision, this court followed it and ruled that New York law would be applied to the facts of the case, and punitive damages were going to be at issue.
Cornell University was then giving a shot at its motions starting with the punitive damages issue. Cornell claimed the plaintiff had not presented any evidence that could support a punitive damages claim. The plaintiff responded arguing facts that could prove a punitive damages claim against the university.
(1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.”
The court defined the requirements to prove a punitive damages claim.
As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”
The court found there was sufficient evidence to support a possible punitive damages claim.
There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.
Cornell next argued that the plaintiff assumed the risk and there was no evidence proving causation. Cornell was arguing a breach of a duty was not related to the injury. There was no causation between the two which is required to prove negligence.
The court found that Cornellβs case law did not apply correctly to the facts of this case. That means the case law facts were sufficiently different from the facts of this case, that the law could not be interpreted the same way. βCornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here.β
On the causation issues the judge found the plaintiff had presented enough evidence that there could be an issue leading to punitive damages against the college.
Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.
Both defendants failed in their motion for summary judgment, and the decision was to allow the case to proceed to trial.
So Now What?
I have not been able to find the outcome of this case. Meaning it probably settled. The entire issue was the warning on the product; it was not clear; it was not visible, and it could not be seen in normal use.
If you manufacture products and your product poses a risk to the user, then you need to notify the consumer as often and as many were possible that you can. User manuals, hangtags, the container or bag the product is shipped in and on the product itself. It is also not enough that you can say the label or warning is there; the user must be able to see the warningβ¦β¦every time.
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By Recreation LawΒ Β Β Β Β Β Β Β Β Β Rec-law@recreation-law.comΒ Β Β Β James H. Moss
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Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412
Posted: March 19, 2017 Filed under: Assumption of the Risk, Health Club, Jurisdiction and Venue (Forum Selection), Legal Case, New York | Tags: assumption of the risk, Causation, Cornell, Cornell University, Failure to Warn, Gym, Gymnastic, Open and Obvious, Punitive damages, Summary judgment, Tumbl Trak Leave a commentDuchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412
Randall Duchesneau, Plaintiff, v. Cornell University, et al., Defendants.
CIVIL ACTION NO. 08-4856
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2012 U.S. Dist. LEXIS 106412
July 31, 2012, Decided
July 31, 2012, Filed
PRIOR HISTORY: Duchesneau v. Cornell Univ., 2011 U.S. Dist. LEXIS 135211 (E.D. Pa., Nov. 22, 2011)
CORE TERMS: warning, summary judgment, trampoline’s, assumption of risk, punitive damages, unaware, gymnasium, warn, partial, failure to warn, novice, user, assumed risk, inappropriate, punitive, flip, matter of law, warning label, recklessness, supervision, performing, gymnastic, enhanced, hazard, adduce, facie, causation, choice of law, applicable law, case of failure
COUNSEL: Β [*1] For RANDALL DUCHESNEAU, Plaintiff: STEWART J. EISENBERG, LEAD ATTORNEY, DANIEL JECK, DANIEL JOSEPH SHERRY, JR., DINO PRIVITERA, KENNETH MICHAEL ROTHWEILER, EISENBERG, ROTHWEILER, WINKLER, EISENBERG & JECK, P.C., PHILADELPHIA, PA; MICHAEL CHOI, CHOI & ASSOCIATES, ELKINS PARK, PA.
For CORNELL UNIVERSITY, Defendant, Cross Claimant: RICHARD B. WICKERSHAM, JR., LEAD ATTORNEY, POST & SCHELL, P.C., PHILADELPHIA, PA; JOE H. TUCKER, JR., THE TUCKER LAW GROUP, ONE PENN CENTER AT SUBURBAN STATION, PHILADELPHIA, PA.
For TUMBLTRAK, Defendant, Cross Defendant: DANIEL J. MCCARTHY, SUSAN R. ENGLE, LEAD ATTORNEYS, MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS LLP, PHILADELPHIA, PA.
JUDGES: C. DARNELL JONES, II, UNITED STATES DISTRICT JUDGE.
OPINION BY: C. DARNELL JONES, II
OPINION
Jones, II, U.S.D.J.
MEMORANDUM
Before the Court is Defendant Tumbl Trak’s (“T-Trak”) Motion for Partial Summary Judgment (Docket No. 169); Cornell University’s Motion for Summary Judgment (Docket No. 171); Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172); and extensive briefing related thereto. 1
1 This matter has been crawling along, with a stunning amount of motion practice and briefing, for years now. The parties andΒ [*2] this Court are well aware of the tortured factual and procedural background of this case, and setting it forth at length again here would be a waste of judicial resources. Rather, I limit the discussion herein to specific facts as may be relevant to resolution of the Motion.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on whichΒ [*3] that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and “must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
T-Trak’s Motion for Partial Summary Judgment
T-Trak seeks partial summary judgment on three bases: (1) Plaintiff cannot establish a prima facie case of failure to warn; (2) Plaintiff is not entitled to punitive damages; and (3) Plaintiff assumed the risk of serious injury when using the Tumbl Trak apparatus (“TTA”). I address these seriatim.
Failure to Warn
Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate causeΒ [*4] of the injury to plaintiff; and (4) the plaintiff suffered loss or damage. Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 179 (E.D.N.Y. 2008); McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997). The duty to warn can be breached by either “the complete absence of warnings as to a particular hazard,” or “the inclusion of warnings which are insufficient.” Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 610 (N.Y. App. Div. 1992). The adequacy of a warning is normally a question of fact to be determined at trial. Nagel v. Bros. Int’l Foods, Inc., 34 A.D.3d 545, 825 N.Y.S.2d 93, 95 (N.Y. App. Div. 2006).
2 On November 23, 2011, U.S. Magistrate Judge Lynne A. Sitarski analyzed choice of law inquiries in this case and determined New York law applies throughout. Additionally, no party disputes the application of New York law to the failure to warn and assumption of risk claims here. Accordingly, I apply New York law to those claims.
Plaintiff has the burden of proving that T-Trak’s failure to warn was a proximate cause of his injury. See Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282, 285 (N.Y. App. Div. 2007). This burden includes adducing proof that a user of the product at issue would have read and heededΒ [*5] a warning had one been given. Sosna v. Am. Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (N.Y. App. Div. 2002). Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.” Humphrey, 556 F. Supp. 2d at 179-80 (citing Liriano v. Hobart Corp. (Liriano I), 92 N.Y.2d 232, 700 N.E.2d 303, 308, 677 N.Y.S.2d 764 (1998)).
T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” Def.’s Mot. Part. Summ. J. (hereinafter “Def.’s Br.”) 21. More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding [TTA].” Id. T-Trak relies on, inter alia, the following record evidence:
o “Plaintiff, educated in physics, knew that what goes up will come down.” Id. 22; see id. Ex. H, at 380-81.
o PlaintiffΒ [*6] signed a waiver that stated he understood the risks and dangers associated with gymnastics. Id. Ex. F.
o There was a small warning label on the TTA which stated that any activity “creates the possibility of catastrophic injury, including paralysis or even death from falling on the head or neck. Id. Ex. G.
o Plaintiff “was aware of the safety concept of spotting and had done it in high school as a member of the cheerleading squad.” Id. 23; see id. Ex. H, at 432.
Based on these facts, T-Trak contends that “common sense” would have informed an individual that he or she was risking landing on their head by using the TTA, and, as such, T-Trak had no legal duty to warn Plaintiff. Id. 24.
However, there are significant disputes of material fact as to which, if any, hazards associated with the TTA were open and obvious (i.e., could be objectively ascertained) by a similarly-situated novice gymnast. Notably, Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA,Β [*7] not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. Pl.’s Resp. Def. T-Trak’s Mot. Part. Summ. J. (hereinafter “Pl.’s Resp. Br.”) Ex. D, at 8-9. Dr. Vigilante’s report clearly suggests there were conflicting messages as to (1) the dangers associated with particular uses of the TTA; (2) how novices should perform backflips off the TTA; and (3) what is the appropriate level of supervision for safety purposes while using the TTA. Dr. Vigilante’s view of the facts is obviously in conflict with that of T-Trak. Cf. Repka v. Arctic Cat, Inc., 20 A.D.3d 916, 798 N.Y.S.2d 629, 631 (N.Y. App. Div. 2005) (triable issue of fact concerning sufficiency of warnings raised through expert).
Apparently as a fallback position, T-Trak also asserts that because Plaintiff never sought to view the warnings prior to his accident, he cannot advance a failure to warn claim. However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.” Johnson, 588 N.Y.S.2d at 611.Β [*8] This fact alone is insufficient to secure summary judgment. See Humphrey, 556 F. Supp. 2d at 180-81 (holding plaintiff’s admission that he did not read the warning label or operating instructions on equipment not dispositive under New York law in connection with failure to warn claim). Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. 3 Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter. 4 See Pl.’s Resp. Br. Ex. T.
3 This evidence is buttressed by the fact that T-Trak’s own warnings expert testified at his deposition that the warnings on the TTA were deficient, illegible, and violative of relevant industry standards pertaining to size. Pl.’s Resp. Br. Ex. S.
4 I do not find T-Trak’s argument that Plaintiff submitted a “sham affidavit” to be convincing.
In sum, this evidence of record establishesΒ [*9] sufficient material disputes of fact as to the level of awareness Plaintiff or any other objective, novice gymnast would have had concerning the danger of specific injuries while performing specific maneuvers on the TTA. Moreover, T-Trak has been unable to adduce undisputed evidence that Plaintiff would have disregarded a proper warning. Accordingly, summary judgment on the failure to warn claim is inappropriate.
Assumption of Risk
T-Trak contends it is entitled to summary judgment on Plaintiff’s negligence claim based on the principle of assumption of risk. 5 To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff. Martinez v Capital One, N.A.,Β Β Β Β F. Supp. 2dΒ Β Β , 2012 U.S. Dist. LEXIS 42214, No. 10 Civ. 8028(RJS), 2012 WL 1027571, at *10 (S.D.N.Y. Mar. 27, 2012). Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 431 (S.D.N.Y. 1999); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 967-68, 510 N.Y.S.2d 49 (1986). To establishΒ [*10] assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” Hedstrom, 76 F. Supp. 2d at 432 (citing Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490, 495 (N.Y. App. Div. 1993)). This determination depends in part on the openness and obviousness of the risk. Id.
5 This argument applies only to Plaintiff’s negligence claim, as New York law does not favor an assumption of risk defense to strict liability claims. Auto. Ins. Co. of Hartford v. Electrolux Home Prods., Inc., 2011 U.S. Dist. LEXIS 12652, 2011 WL 1434672, at *2 (W.D.N.Y. 2011).
Assumption of risk is frequently applied to claims arising out of participation in sporting events. See, e.g., Goodlett v. Kalishek, 223 F.3d 32, 34 (2d Cir. 2000) (airplane racing); Rochford v. Woodloch Pines, Inc., 824 F. Supp. 2d 343, 349-51 (E.D.N.Y. 2011) (golf); Ducrepin v. United States, 964 F. Supp. 659, 664-65 (E.D.N.Y. 1997) (basketball); Mc Duffie v. Watkins Glen Int’l, Inc., 833 F. Supp. 197, 201-02 (W.D.N.Y. 1993) (auto racing); Morgan v. State, 90 N.Y.2d 471, 481-82, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997) (bobsledding and karate, but not tennis where facility’s negligence in failing to repair torn net unduly increasedΒ [*11] the risk); Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650, 541 N.E.2d 29, 33-34, 543 N.Y.S.2d 29 (1989) (football); Joseph v. N.Y. Racing Ass’n, 28 A.D.3d 105, 809 N.Y.S.2d 526, 529 (N.Y. App. Div. 2006) (horseback riding); Hawley v. Binghamton Mets Baseball Club Inc., 262 A.D.2d 729, 691 N.Y.S.2d 626, 627-28 (N.Y. App. Div. 1999) (baseball). It has even been applied in some (but not all) cases involving jumping on a trampoline. 6 However these cases have a unifying theme — clear risks that were known yet disregarded by the plaintiff, with no negligence by the defendant that enhanced the risk. In cases where the plaintiff was unaware of the risk, or where the defendant’s negligence amplified the risk, summary judgment has not been granted. See, e.g., Clarke v. Peek ‘N Peak Recreation, Inc., 551 F. Supp. 2d 159, 163 (W.D.N.Y. 2008) (ski resort owner’s alleged negligence may have enhanced assumed risk); Hedstrom, 76 F. Supp. 2d at 435-36 (beginning trampoline user unaware and not sufficiently warned of risks); Repka, 798 N.Y.S.2d at 632-33 (assumed risk unduly increased by use of defective snowmobile without adequate warnings); Kroll, 764 N.Y.S.2d at 731 (plaintiff unaware of risk of trampoline’s defect). T-Trak argues vociferously that “PlaintiffΒ [*12] should have been aware of the risk of injury.” Def.’s Br. 31 (emphasis added). While it is true that Plaintiff had some experience with cheerleading and gymnastics, there is evidence he was a novice nonetheless. Additionally, as discussed supra, there is direct testimony that Plaintiff did not view any warnings and thus was not made explicitly aware of the contents thereof. There is further, disputed testimony as to the reasons why Plaintiff was unaware of the warnings, including evidence that the warnings were patently insufficient and no participant saw or became aware of their contents that day. The survey of trampoline cases herein makes it clear that the use of a trampoline has not been deemed inherently risky as a matter of New York law. All of these relevant disputes — namely, as to Plaintiff’s expertise, knowledge, the sufficiency and quality of the warnings, and the obvious nature of the risk to a casual user of the TTA — preclude this Court from absolving T-Trak on the grounds of assumption of risk. T-Trak’s duty to Plaintiff, if any, is properly an issue for trial.
6 Application of assumption of risk is a fact-specific endeavor, including in trampoline cases, which tend toΒ [*13] be decided depending on whether the plaintiff was aware of and appreciated the risk in using the trampoline. A plaintiff may prevail where he adduces evidence that he was unaware of the risk of using a trampoline and that he used the trampoline in an ordinary fashion. See, e.g., Hedstrom, 76 F. Supp. 2d at 427, 435 (finding no assumption of risk where plaintiff was a total beginner who did not see warning label and who used trampoline in a “fairly typical manner”); Kroll v. Watt, 309 A.D.2d 1265, 764 N.Y.S.2d 731, 731 (N.Y. App. Div. 2000) (affirming denial of summary judgment on assumption of risk where plaintiff’s awareness of risk of trampoline tipping over and thus causing plaintiff’s injury was a triable issue of fact). On the other hand, assumption of risk applies where the risk of the activity is inherent or where the injured party fully understands, appreciates, and voluntarily assumes the risk through participation. Goodlett, 223 F.3d at 36-37. New York courts have barred the recovery of plaintiffs injured while jumping on a trampoline where the plaintiff was aware of the risk or performed a particularly risky maneuver. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006)Β [*14] (affirming application of assumption of risk where plaintiff failed to provide evidence that he was unaware of risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (2005) (finding assumption of risk where plaintiff was aware and appreciative of risk of using trampoline and used it nonetheless); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 728 (N.Y. App. Div. 1998) (holding assumption of risk applicable where plaintiff ignored sign warning against use of trampoline by two or more participants at the same time and then engaged in such activity).
Punitive Damages
U.S. Magistrate Judge Lynne A. Sitarski thoroughly and cogently examined choice of law issues in this case in deciding Defendant Cornell University’s Motion to Establish Applicable Law. See Duchesneau v. Cornell Univ., No. 08-4856, 2011, 2011 U.S. Dist. LEXIS 135211, WL 5902155, at *1 (E.D. Pa. Nov. 23, 2011) (order granting applicable law). T-Trak did not participate in the Motion to Establish Applicable Law. Rather, T-Trak asserts in the instant Motion that, while New York law is almost universally applicable in this case, Michigan law operates to bar recovery of punitive damages. In short, T-Trak contends that because it is domiciledΒ [*15] in Michigan and the alleged punitive conduct (design and labeling of the product) occurred in Michigan, Michigan law should apply to Plaintiff’s claim for punitive damages. Unsurprisingly, Michigan law bars punitive damage awards unless expressly authorized by statute, which is not the case here. See Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391, 400 (2004). Plaintiff maintains that New York law properly governs all aspects of this matter, including his punitive damages claim. New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton v. Brown & Williamson Holdings, Inc., 498 F. Supp. 2d 639, 653 (S.D.N.Y. 2007).
Judge Sitarski aptly laid out the applicable conflicts of law framework and conducted a thorough analysis of asserted interests, and this Court need not repeat the legal discussion at length here. Judge Sitarski concluded that New York law applied to Plaintiff’s claims against Cornell, including with regard to punitive damages and contributory negligence. I reach the same conclusion as to T-Trak for substantially the same reasons. Here, T-Trak knew the TTA was to be delivered and used in New York, and, indeed,Β [*16] the TTA was used continuously in New York for many years prior to the accident. Generally speaking, courts applying the Pennsylvania choice of law contacts analysis to product liability matters have applied the law of the state where the product was used and where the accident occurred. Shields v. Consol. Rail Corp., 810 F.2d 397, 399-400 (3d Cir. 1987); U.S. Airways, Inc. v. Elliott Equip. Co., Inc., 2008 U.S. Dist. LEXIS 76043, 2008 WL 4461847 (E.D. Pa. Sept. 29, 2008). Plaintiff’s accident was non-fortuitous, and therefore great deference is given to New York as to the law which should apply. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069 (3d Cir. 1996).
Under the contacts analysis, New York has many compelling interests here: (1) the TTA is located in New York; (2) the accident occurred in New York; (3) Cornell contracted to purchase the TTA in New York; (4) Plaintiff was a student in New York; (5) Plaintiff, although a Pennsylvania resident, received treatment for his injuries in New York; and (6) the key Waiver Agreement in this case governs activities in New York and has its validity determined by New York law. The contacts with Michigan are markedly less. T-Trak’s headquarters is in Michigan. Some design andΒ [*17] testing of the TTA took place in Michigan. However, the TTA and its warnings were designed by a Washington resident, and the component parts of the TTA were manufactured in multiple states other than Michigan (including the pads which containing the warnings). The actual T-Trak dealer who negotiated the New York contract of sale for the TTA with Cornell was based in Georgia. Finally, the TTA was assembled in New York by Cornell from constituent pieces delivered from various locations. 7
7 These circumstances are readily distinguishable from those in Kelly v. Ford Motor Co., 933 F. Supp. 465 (E.D. Pa. 1996), upon which T-Trak heavily relies. In Kelly, much of the design, testing, assembly, and warning label placement occurred in various Michigan locales under the close coordination of Ford. As mentioned above, T-Trak did not even manufacture or assembly any parts of the TTA in Michigan. Kelly is not persuasive.
Accordingly, I conclude New York law applies to the question of punitive damages against T-Trak. Upon review of the record, I find Plaintiff has adduced sufficient evidence to allow the claim for punitive damages to proceed.
Cornell’s Motion for Partial Summary Judgment on Punitive [*18] Damages
Cornell claims that Plaintiff has failed to adduce any evidence that could justify punitive damages under New York law. Plaintiff responds that “Cornell’s relevant conduct is textbook-appropriate” in terms of punitive damages for multiple reasons: (1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.” See Pl.’s Resp. Opp’n Def. Cornell’s Mot. Summ. J. Punit. Damages 2-3.
As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. Clinton, 498 F. Supp. 2d at 653. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conductΒ [*19] constitutes willful or wanton negligence or recklessness.” Buckholz v. Maple Garden Apts., LLC, 38 A.D.3d 584, 832 N.Y.S.2d 255, 256 (N.Y. App. Div. 2007); see also Mahar v. U.S. Xpress Enters., 688 F. Supp. 2d 95, 110 (N.D.N.Y. 2010) (allowing punitive damages in rare cases of egregious and willful conduct that is morally culpable); Black v. George Weston Bakeries, Inc., No. 07-CV-853S, 2008, 2008 U.S. Dist. LEXIS 92031, WL 4911791, at *7 (W.D.N.Y. Nov. 13, 2008) (permitting punitive damages where conduct constitutes conscious disregard of others); Bohannon (ex rel. Estate of Dolik) v. Action Carting Envtl. Servs., Inc., No. 06-CV-5689 (JG), 2008 U.S. Dist. LEXIS 40516, 2008 WL 2106143, at *3 (E.D.N.Y. May 20, 2008) (recognizing utter indifference to the safety of others warrants granting punitive damages).
Upon review of the record, I concur with Plaintiff that there is more than enough evidence to allow Plaintiff’s punitive damages claim to proceed. There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as wouldΒ [*20] amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.
III. Cornell’s Motion for Summary Judgment
Cornell moves for summary judgment on two bases: (1) Plaintiff assumed the risk of using the TTA and Cornell had no duty to supervise the use of gymnastic equipment by novices, and (2) there is no evidence as to causation concerning Cornell. There are so many material disputes of fact between Plaintiff and Cornell that a lengthy explication of them would be a waste of resources. Suffice it to say that, despite occasional rhetoric to the contrary, Plaintiff and Cornell disagree about nearly every major fact or opinion of record that relates to the issues raised in the Motion. 8 Specific to assumption of risk (discussed supra), there are considerable disputes over whether Plaintiff knew or appreciated the risks of the TTA. Cornell’sΒ [*21] assertions to the contrary appear to be mostly self-serving statements. Because Plaintiff has adduced plentiful evidence (testimony, admissions, experts) in support of the position that he was not aware of the relevant risk and could not be expected to be aware of that risk, summary judgment is obviously inappropriate. 9
8 These two parties have repeatedly filed briefs of excessive length (50-100 pages each), including unnecessary bolded or italicized text for emphasis, in which they highlight disputes of fact ad infinitum.
9 This conclusion is buttressed by the fact that, as discussed supra, there are even disputes of material fact as to whether (1) the risk of harm was obvious, open, or hidden, and (2) the risk of harm was enhanced by Cornell’s own actions.
Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here. See, e.g., Yedid v. Gymnastic Ctr., 33 A.D.3d 911, 824 N.Y.S.2d 299, 300 (N.Y. App. Div. 2006) (finding experienced gymnast with six years of instruction assumed known risk of performing front flip on trampoline); Koubek v. Denis, 21 A.D.3d 453, 799 N.Y.S.2d 746, 747 (N.Y. App. Div. 2005) (holding plaintiff assumed risk of using trampoline where she failed toΒ [*22] adduce evidence that she was unaware of the potential for injury); Palozzi v. Priest, 280 A.D.2d 986, 720 N.Y.S.2d 676, 676 (N.Y. App. Div. 2001) (affirming application of assumption of risk to teenager injured while “fake wrestling” on trampoline); Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728, 729 (N.Y. App. Div. 1998) (noting plaintiff assumed risk of “double jumping” despite warnings on trampoline that were deemed adequate as a matter of law); Williams v. Lombardini, 38 Misc. 2d 146, 238 N.Y.S.2d 63, 64-65 (N.Y. Sup. Ct. 1963) (determining plaintiff assumed risk where he admitted seeing rule that prohibited “difficult tricks” but attempted front flip on trampoline anyway). As discussed supra, summary judgment based on assumption of risk is inappropriate where there is a question as to appreciation or understanding of risk. 10 See Hedstrom, 76 F. Supp. 2d at 435-36 (recognizing no assumption of risk by beginning trampoline user who was unaware and not sufficiently warned of risks); Kroll, 764 N.Y.S.2d at 731 (deciding plaintiff did not assume risk because she was unaware of trampoline’s defect). Application of assumption of risk at summary judgment is especially inappropriate here because New York law disfavors using theΒ [*23] doctrine in cases where there are allegations of reckless or intentional conduct, or concealed or unreasonably increased risks. 11 Morgan, 90 N.Y.2d at 485; see, e.g., Charles v. Uniondale Sch. Dist. Bd. of Educ., 91 A.D.3d 805, 937 N.Y.S.2d 275, 276-77 (N.Y. App. Div. 2012) (denying summary judgment where issues of fact existed as to whether defendant unreasonably increased risk by failing to provide head and face protection to plaintiff lacrosse player); Miller v. Holiday Valley, Inc., 85 A.D.3d 1706, 925 N.Y.S.2d 785, 788 (N.Y. App. Div. 2011) (rejecting summary judgment because plaintiff submitted evidence that defendant’s negligent failure to stop ski lift caused plaintiff’s injuries); Repka, 798 N.Y.S.2d at 632-33 (dismissing summary judgment motion because lack of adequate warnings may have unduly enhanced snowmobile’s concealed defect). In short, I do not find that Cornell is entitled to judgment as a matter of law based on the assumption of risk doctrine.
10 Cornell argues that the warning notice on the TTA itself establishes total assumption of risk. However, a vast portion of the evidence in this case (almost all of it disputed) is about whether the TTA’s warnings were seen, sufficient, or effective. InΒ [*24] other words, Cornell relies on a highly disputed factual conclusion concerning the adequacy of the warning to justify summary judgment on assumption of risk grounds. This Court cannot follow.
11 I am completely unpersuaded by Cornell’s argument concerning its total lack of a duty of care to a novice student using equipment in the Teagle Gymnasium. N.Y. Gen. Oblig. Law Β§ 5-326 (McKinney 1976) (voiding gymnasium waivers); Eddy v. Syracuse Univ., 78 A.D.2d 989, 433 N.Y.S.2d 923 (App. Div. 1980) (concluding questions of negligence, foreseeability of injury, and duty to protect gym users are all proper issues for a jury); Lorenzo v. Monroe Comm. Coll., 72 A.D.2d 945, 422 N.Y.S.2d 230 (1979) (finding questions of fact existed as to whether defendant provided adequate supervision in gymnasium). Much of Cornell’s arguments are bootstrapped onto a conclusion of assumption of risk — i.e., because a student assumed the risk, the defendant college owes no duty with respect to the dangers inherent in the activity. As discussed, this Court cannot conclude at this stage that there was any assumption of risk. In addition, this Court will not revisit its previous rulings as to the issue of the prior academic year waiver despite Cornell’sΒ [*25] apparent invitation.
Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). 12 Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.
12 Cornell spends considerable time “debunking” these experts in briefs, often by reference to the testimony of others. By doing so, Cornell highlights some of the very disputes that preclude summary judgment.
Conclusion
Tumbl Trak maintains that Plaintiff cannot prove it inadequately warned him against use of its product.Β [*26] Cornell suggests that this case involves nothing more than a “luckless accident” that resulted from Plaintiff’s voluntary participation in vigorous athletic activity. Plaintiff disagrees. He believes that he was harmed by (1) a device with grossly inadequate warnings, and (2) an institution which engaged in a course of conduct of gymnasium operation and supervision which was reprehensible and reckless. Based on the record before me, Plaintiff is entitled to put these questions to a jury.
An appropriate Order follows.
ORDER
AND NOW, this 31st day of July, 2012, it is hereby ORDERED that:
- Defendant Tumbl Trak’s Motion for Partial Summary Judgment (Docket No. 169) is DENIED.
- Cornell University’s Motion for Summary Judgment (Docket No. 171) is DENIED.
- Cornell University’s Motion for Partial Summary Judgment on Punitive Damages (Docket No. 172) is DENIED.
- The Case Management Order dated April 20, 2012 remains in force.
In addition, this Court has briefly reviewed the initial pre-trial filings in this matter and noticed that they do not conform with the Chambers Policies and Procedures, available at http://www.paed.uscourts.gov. The rules contained therein are not optional, and are to be followedΒ [*27] to the letter. No party has ever represented to this Court that they cannot work with their colleagues to fulfill their responsibilities under these procedures. Here, it appears the parties have, at least, failed to properly prepare their joint proposed jury instructions and joint proposed voir dire. Instead, three different versions of each document were separately filed by three different parties — a situation that the Chambers Policies obviously sought to preclude. The parties are specifically directed to review the Chambers Policies and Procedures, Civil Cases, Subsection E, which provide two pages of instructions as to the proper preparation and presentation of these and other pre-trial submissions. 13 It is ORDERED that the parties promptly withdraw any non-conforming filings and submit appropriately-prepared ones by August 31, 2012.
13 Parties are expected to be familiar with all Policies and Procedures by the time of the final pre-trial conference, especially the items concerning exhibits, courtroom operation, and attorney conduct during a trial.
BY THE COURT:
/s/ C. Darnell Jones, II
- DARNELL JONES, II, U.S.D.J.
Association for Challenge Course Technology (ACCT), a DE corporation is being sued in Oregon for “promulgating deficient safety standards.” Issue is where the trial should be held, in Oregon where the plaintiff lives and was injured or in DE or IL where ACCT is located and does business
Posted: August 22, 2016 Filed under: Challenge or Ropes Course, Jurisdiction and Venue (Forum Selection), Oregon | Tags: ACCT, Association of Challenge Course Technology, challenge course, Giant Swing, Jurisdiction, Jurisdiction and Venue (Forum Selection), Professional Vendor Member, PVM, Ropes course, Vendor Leave a commentThis case is still ongoing so who knows where it will go and how it will end. However, the relevant Jurisdiction and Venue issues are pretty clear. If you sell yourself or services online and deliver product or services in a state, expecting your name to be used with the services, you are probably doing enough business to be sued in that state.
Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261
State: Oregon
Plaintiff: Cassidy Almquist
Defendant: Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation; Association for Challenge Course Technology, a Delaware non-profit corporation
Plaintiff Claims: (1) in promulgating standards for its certified inspectors, that allow them to certify challenge courses as safe when the inspector knows that untrained challenge course workers will operate the course, and (2) by failing to include in the inspection standards a provision directing an inspector to recommend that a course be closed until workers receive proper training
Defendant Defenses: Jurisdiction and Venue
Holding: for the Plaintiff
Year: 2016
This is not a final decision. The basis of this analysis may change or be changed at a later time by the trial court or an appellate court. This analysis is based on the facts and appellate opinion of this intermediate motion. However, the analysis and issues are relevant and important no matter the outcome.
Remember, any case where the plaintiff is rendered a paraplegic or quadriplegic by the accident is probably going to involve litigation because of the medical bills and future medical care. On top of that, workerβs compensation insurance companies are directed both by subrogation clauses and state law sometimes to recoup money paid out for injuries. The plaintiff in this case was working at the time of her injury so the likelihood of a lawsuit was probably absolute.
The decision is based on a motion to dismiss filed by the defendant Association for Challenge Course Technology (ACCT). The motion is based on the ACCT being sued in a state where they have no business presence so it is requesting a dismissal because it is the wrong jurisdiction and venue to sue ACCT under the law.
The plaintiff was working at the Bar-M-Ranch in Oregon as a camp counselor. Who she was working for was not really identified, and the Bar-M-Ranch is not identified as a defendant. Guessing, that means she was working for the Bar-M-Ranch, and they were not sued because they had workerβs compensation insurance, which protects them; actually prohibits an injured employee from suing the employer.
The plaintiff was injured when she fell from a βgiant swingβ and was paralyzed.
The Calvary Church Tri-Cities constructedΒ the adventure course at the Bar-M-Ranch in Richmond Oregon. The camp director asked the plaintiff to demonstrate the Giant Swing. A camp employee, who was not trained to operate the Giant Swing, improperly connected the plaintiff to the swing. She fell 50β to the ground.
Synergo, a defendant was an ACCT member and professional vendor member, PVM.
Synergo is in the business of, among other things, inspecting challenge courses. Β Synergo is located in Tigard, Oregon, and is a dues-paying member of ACCT. Synergo is the only accredited Professional Vendor Member (“PVM”) of ACCT in Oregon. Synergo’s founder and manager, Erik Marter, served on the Board of Directors of ACCT, and is the only certified ACCT professional inspector in Oregon. http://www.teamsynergo.com/our-story/ ; and http://www.acctinfo.org/?PVMList%20 (lasted visited May 20, 2016). Synergo conducts inspections of challenge courses according to ACCT standards. (Am. Compl. ΒΆ 28.)
Synergo wasΒ hired by Calvary Church Tri-Cities to inspect the challenge course, described by the court as an adventure course. Approximately a month before the accident defendant Synergo had sent an employee to inspect the course and giant swing. During the inspection, Synergo had discovered the Church, and the Bar-M-Ranch employees had not been trained in how to operate the giant swing. Synergo did not act on this information.
Synergo did not direct or recommend that Calvary close the Giant Swing until the operators of the swing were trained. If recommended by Synergo, Calvary would have closed the Giant Swing.
The lawsuit was filed against Synergo and ACCT. ACCT filed a motion to dismiss based on improper jurisdiction. The District Courtβs denial of that motion is analyzed below.
Analysis: making sense of the law based on these facts.
In a jurisdiction fight, the plaintiff has to prove the court where the plaintiff chose to file the case has the legal right to hear the case. The term personal jurisdiction is used because the courts look at the defendants, even though a corporation, as an individual in who they deal with the state where the case is filed.
Jurisdiction is also a constitutional issue and controlled by US Supreme Court decisions and the States Long Arm Statute. Meaning the state passes a law, the long-armΒ statute that defines what is necessary to be bringing an out of state defendant into a local court within the state.Β The federal law is then applied to see if the state long arm statute violates federal law and as in this case.
The entire discussion is based on the constitutional right to due process. “Due process requires that defendants ‘have certain minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'”
Oregon Federal Courts are part of the 9th circuit. The ninth circuit employs a three-prong test to determine if the defendant has had the minimum contacts to be subject to the jurisdiction of the court at issue.
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.
Plaintiff bears the burden of satisfying the first two prongs. The burden then shifts to the moving defendant to present “a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.”
For tort claims the court applies a purposeful direction test when looking at the evidence.
For claims sounding in tort, courts in this circuit “instead apply a ‘purposeful direction’ test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere
To prove the purposeful direction test the plaintiff must show the defendant purposefully directed his conduct toward residents in the state at issue. In the past that has meant the defendant placed his products in the stream of commerce with the expectation they would be purchased in the state at issue. That was easier to determine when catalogs were sent out from a warehouse, and products were mailed from the business warehouse to the state.
Now with services that are delivered over the Internet or based on webpages the test is complicated.
ACCT argued it did not direct its activities to Oregon.
By Declaration, Todd Domeck, Vice Chairman of the Board of Directors with ACCT, informed the Court that ACCT is a Delaware non-profit corporation with its principal place of business in Illinois. ACCT has no office or registered agent in Oregon, and no employees who reside in Oregon. Domeck also states that “ACCT was not consulted during the construction of the ‘Giant Swing,'” nor did ACCT provide training for “any employees of the Bar-M-Ranch who were to be operators of the ‘Giant Swing.'”
Based on the ACCT affidavit, the test then looks at other actions of the ACCT.
In light of those facts, the jurisdictional analysis here turns on the extent to which ACCT, as a non-profit trade association, acted by way of its website and its certification of Synergo to create a presence in Oregon. In aid of the Court’s analysis of ACCT’s purposeful direction in Oregon, the Court relies on the uncontroverted allegations of the Amended Complaint, the Micah Henderson Declaration, and the Internet websites of ACCT and Synergo.
The court then examined the ACCT website. The analysis is based on a sliding scaleβ ββ¦likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.β
β¦that a state may assert jurisdiction over a nonresident defendant “when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable to the State’s courts”.
ACCT described itself, as any company would. However, that description the court found stated that ACCT intended to sell its services in Oregon.
On its website, ACCT describes itself as “the world’s leading and largest American National Standards Institute (ANSI) Accredited Standards Developer focused specifically and solely on the challenge course industry.” http://www.acctinfo.org (last visited May 20, 2016). Through its website, ACCT represents that it “develops, refines, and publishes standards for installing, maintaining, and managing challenge courses; provides forums for education and professional development; and advocates for the challenge course and adventure industry.” ACCT’s website is an interactive commercial website, and ACCT uses it to advertise and sell its services and merchandise. Specifically, individuals and businesses may purchase memberships and ACCT’s standards book, apply and register for inspector certification courses and exams, and access challenge course related employment listings.
The court also found that 5% of ACCT membership was located in Oregon and 2.4% of its inspectors are based in Oregon, and over the past ten months 3.5% of its standards had been sold to Oregon residents.
Although the business ACCT conducts in Oregon is not overwhelming, the Court concludes that the nature and quality of ACCT’s contacts with Oregon via its website are sufficient to satisfy the purposeful direction test.
The court summed up its analysis this way.
In any event, even if ACCT’s reach into Oregon via its website was not sufficient, standing alone, to confer personal jurisdiction, the Court finds that ACCT’s reach into Oregon went beyond mere solicitation of members and sales through its website.
The court then looked at the relationship between the two defendants Synergo and ACCT.
The Court finds that ACCT directly targeted Oregon through the following actions: ACCT’s certification of Oregon-based Synergo as a PVM, advertising Oregon-based Synergo as a PVM (including recommending that consumers hire Synergo), and setting standards for the inspection of challenge courses, to which ACCT required Synergo to adhere. Specifically, ACCT established and promoted PVM designations for companies, including Synergo, that successfully complete the application and accreditation process, which can take up to 18 months to complete, and includes a site visit of one-to-three days in duration. http://www.acctinfo.org/page/PVMApplication (last visited May 20, 2016). ACCT describes the process as “a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards.”
ACCT even had a link on its website to the Synergo website. Synergo, in turn prominently displayed its membership in the ACCT on its website. The court found this relationship and promotion of Synergo established purposeful direction into Oregon. Thus the first prong of the test was met.
The second prong, the Relating to the Forum test was scrutinized next. This test looks at βthe specific personal jurisdiction test requires a plaintiff to demonstrate that the claims arise out of, or are related to, defendant’s forum-related activities.β The courts analyze this prong with a βbutt for test.β
This was a simple analysis in this case.
Almquist has alleged that “but for” ACCT promulgating deficient safety standards, she would not have fallen and sustained injuries in Oregon. Thus, the contacts ACCT had with Oregon–i.e., certifying Synergo and allegedly setting inadequate course inspection standards to which Synergo was required to adhere–are also the conduct that give rise to Almquist’s claims. Accordingly, the second prong of the specific personal jurisdiction test is satisfied here.
Courts and many long-armΒ statures give deference to the state where the accident occurred in tort claims. Consequently, this test is superfluous if the accident occurred in the state.
The final prong is a reasonableness test. This is a simple test that balances the needs of both parties and the costs, both in terms of time and money, in having the trial in one location or another. One way of looking at this was argued by the ACCT, that other forums are just as reasonable as Oregon to conduct the trial.
The court looked at the burden of litigating in Oregon to the ACCT. This test is very difficult to overcome if the court has found that the defendant has a relationship with the forum state. ββ¦unless the inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.β Consequently, the modern conveniences that allow companies to sell to the forum state are also such that allow litigation in the forum state to be easier.
The major hurdle that the ACCT could not overcome is the accident occurred in Oregon, and the injured plaintiff lived in Oregon.
The court then looked at Oregonβs (the people of the state of Oregon) in litigating in Oregon.
To make this determination, the Court focuses on the location of the evidence and witnesses. Caruth,. The evidence and potential witnesses reside in Oregon, Washington, California, and Illinois. As such, one party must litigate in a foreign venue. While ACCT argues that its witnesses are located in “other states,” it does not contend that its burden is greater than Almquist’s were she forced to litigate elsewhere. In addition, this factor is “no longer weighed heavily given the modern advances in communication and transportation.”
The next analysis is the convenience of litigating in Oregon. The fact that the plaintiff was a paraplegic would sufficiently increase the burden and cost of litigating in a foreign state. The court also must look at whether or not an alternative forum exists that would have a fair trial. Both Delaware and Illinois would meet this requirement.
However, looking at all the tests, the stronger requirements to litigate were in Oregon and the greatest burden would be placed on the plaintiff if she wereΒ forced to litigate out of Oregon.
Applying the seven-factor test, the Court concludes that exercising personal jurisdiction over ACCT is reasonable, and comports with fair play and substantial justice. The first, fourth, fifth, and sixth factors weigh in favor of Almquist, although the sixth factor is given little weight. The second and seventh factors weigh in favor of ACCT. The third factor is neutral. Although some factors weigh in favor of ACCT, it did not present a “compelling case” that exercising jurisdiction in this Court is unreasonable.
The ACCT motion was denied.
So Now What?
This case is far from over. Discovery is just starting and many more motions will be filed, and may be appealed before a settlement or trial. When faced with a paraplegic as a plaintiff, settlement is usually the preferred result because a jury can give unlimited an almost unlimited amount of money. On top of that the settlement can be structured to provide the best benefits to the plaintiff.
However, this case is another example of the cost of creating standards rather than best practices or something other forms of help. The idea would have also been a lot easier if ACCT had not βqualifiedβ people to inspect courses. No one is βqualifiedβ by anyone to inspect highways, buildings, ball parks, except by state law.
State law means an Engineer, etc., licensed by the state to inspect. This is the second case in three years where an inspector has been sued for allegedly missing something during an inspection. See Bad luck or about time; however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry.
If you are inspecting, you better identify every issue and let the client know. You cannot say itβs not that important it because it will become important. After that it is up to the client to deal with your inspection. Which may the cost the client a lot. See Serious Disconnect: Why people sue.
This case was not an βifβ case, but a when a case. You make standards not based upon a national organization such as ANSI or ASTM; you can expect to be sued for how you created the standards and what the standards say.
What do you think? Leave a comment.
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Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261
Posted: August 20, 2016 Filed under: Challenge or Ropes Course, Jurisdiction and Venue (Forum Selection), Legal Case, Oregon | Tags: ACCT, Association for Challenge Course Technology, Giant Swing, Jurisdiction and Venue (Forum Selection), Oregon, paraplegic, Synergo Leave a commentAlmquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261
Cassidy Almquist, Plaintiff, v. Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation; Association For Challenge Course Technology, a Delaware non-profit corporation, Defendants.
Case No. 3:15-cv-01281-SB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2016 U.S. Dist. LEXIS 79261
May 20, 2016, Decided
May 20, 2016, Filed
SUBSEQUENT HISTORY: Adopted by, Motion denied by Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79002 (D. Or., June 9, 2016)
CORE TERMS: website, personal jurisdiction, swing, purposeful, forum state, weigh, http, www, inspector, jurisdictional, purposefully, inspection, acctinfo, visited, org, exercise of jurisdiction, interactive, prong, resident, direction’ test, alternative forum, quotation, consumers, litigate, comport, accreditation, adhere–, prima facie, citation omitted, general jurisdiction
COUNSEL: [*1] For Cassidy Almquist, Plaintiff: James E. Horne, LEAD ATTORNEY, Gordon Thomas Honeywell, LLP, Seattle, WA; Mario Interiano, Norma Rodriguez, Scott E. Rodgers, LEAD ATTORNEYS, PRO HAC VICE, Rodriguez Interiano Hanson Rodgers PLLC, Kennewick, WA; Reuben Schutz, Salvador A. Mungia, LEAD ATTORNEYS, PRO HAC VICE, Gordon Thomas Honeywell LLP, Tacoma, WA.
For Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation, Defendants, ThirdParty Plaintiffs: Jennifer L. Crow, LEAD ATTORNEY, Scheer & Zehnder, Portland, OR; Mark P. Scheer, Robert P. Schulhof , Jr, Scheer & Zehnder LLP, Portland, OR.
For Association for Challenge Course Technology, a Delaware non-profit corporation, Defendant: Matthew C. Casey, Bullivant Houser Bailey, PC, Portland, OR.
JUDGES: STACIE F. BECKERMAN, United States Magistrate Judge.
OPINION BY: STACIE F. BECKERMAN
OPINION
FINDINGS AND RECOMMENDATION
BECKERMAN, Magistrate Judge.
Cassidy Almquist (“Almquist”) filed an Amended Complaint against Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation (collectively “Synergo”), and the Association for Challenge Course Technology, a Delaware non-profit corporation (“ACCT”), alleging claims for negligence. Almquist’s [*2] action arises from an accident at the Bar-M-Ranch, in which she fell from a Giant Swing and was paralyzed. With respect to ACCT, Almquist alleges that ACCT was negligent (1) in promulgating standards for its certified inspectors, that allow them to certify challenge courses as safe when the inspector knows that untrained challenge course workers will operate the course, and (2) by failing to include in the inspection standards a provision directing an inspector to recommend that a course be closed until workers receive proper training. (Am. Compl. ΒΆΒΆ 16, 17 and 26.)
Synergo filed an Answer to Almquist’s Amended Complaint, and ACCT filed a Motion to Dismiss for Lack of Personal Jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. On April 5, 2016, this Court heard oral argument on ACCT’s request for dismissal. For the reasons set forth below, the district judge should deny ACCT’s Rule 12(b)(2) motion.
I. BACKGROUND
ACCT, a professional trade association for the challenge course industry, develops and publishes standards for installing, inspecting, and maintaining challenge courses. (Am. Compl. ΒΆΒΆ 24, 25.) ACCT trains and certifies professional challenge course inspectors. (Am. Compl. ΒΆ 25.) Synergo relied on ACCT’s standards [*3] in inspecting the Giant Swing at issue in this litigation. (Am. Compl. ΒΆ 28.)
Synergo is in the business of, among other things, inspecting challenge courses. (Am. Compl. ΒΆ 8.) Synergo is located in Tigard, Oregon, and is a dues-paying member of ACCT. Synergo is the only accredited Professional Vendor Member (“PVM”) of ACCT in Oregon.1 Synergo’s founder and manager, Erik Marter, served on the Board of Directors of ACCT, and is the only certified ACCT professional inspector in Oregon. http://www.teamsynergo.com/our-story/ ; and http://www.acctinfo.org/?PVMList%20 (lasted visited May 20, 2016). Synergo conducts inspections of challenge courses according to ACCT standards. (Am. Compl. ΒΆ 28.)
1 According to ACCT, “[a] PVM of ACCT is a company which has successfully completed the Professional Vendor Member Application, including the Accreditation, process. The process includes a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards. Successful completion of this process distinguishes a PVM from other vendors, identifying the PVM as having been found to be highly experienced and competent.” http://www.acctinfo.org/?PVMList (last visited May 20, 2016).
In February 2012, Cavalry Church Tri-Cities (“Cavalry”) [*4] constructed an “adventure course” on its Bar-M-Ranch property located in Richland, Oregon that included a Giant Swing. (Am. Compl. ΒΆ 6.) Calvary hired Synergo to inspect the Giant Swing after construction of the challenge course was complete. (Am. Compl. ΒΆ 11.) Synergo sent an employee to inspect the Giant Swing in June 2012. (Am. Compl.ΒΆ 12.) During the inspection, Synergo discovered that the Cavalry and Bar-M-Ranch staffs were not trained to operate the swing. (Am. Compl. ΒΆ 16.) Synergo did not direct or recommend that Calvary close the Giant Swing until the operators of the swing were trained. (Am. Compl. ΒΆ 17.) If recommended by Synergo, Calvary would have closed the Giant Swing. (Am. Compl ΒΆ 19.)
During the week of July 15, 2013, Calvary hosted a summer camp at the Bar-M-Ranch. (Am. Compl. ΒΆ 20.) Almquist was a counselor at the summer camp. (Am. Compl. ΒΆ 22.) The camp director asked Almquist to demonstrate the use of the Giant Swing for the children attending the camp. (Am. Compl. ΒΆ 22.) Almquist agreed to do so and a camp employee, who was not trained to operate the Giant Swing, improperly connected her to the Giant Swing. Almquist fell 50 feet to the ground, paralyzing her from [*5] the waist down. (Am. Compl. ΒΆ 23.)
II. LEGAL STANDARD
“In opposing a defendant’s motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper.” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (citing Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008)). “Where, as here, the defendant’s motion is based on written materials rather than an evidentiary hearing, ‘the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.'” Id. (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010)). “Although the plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted allegations in the complaint must be taken as true[,] [and] [c]onflicts between parties over statements contained in affidavits must be resolved in the plaintiff’s favor.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (internal citations and quotation marks omitted).
III. DISCUSSION
ACCT moves to dismiss Almquist’s Amended Complaint for lack of personal jurisdiction. ACCT argues that it lacks sufficient contacts with Oregon to permit the Court’s exercise of either general or specific jurisdiction. Almquist acknowledges that general jurisdiction is not present here, but contends that the extent and nature of ACCT’s contacts with Oregon permit the Court to exercise specific jurisdiction over ACCT. [*6]
A. Constitutional Personal Jurisdiction Standards
“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over [defendant].” Daimler AG v. Bauman, 134 S. Ct. 746, 753, 187 L. Ed. 2d 624 (2014). Oregon law authorizes personal jurisdiction over defendants to the full extent permitted by the United States Constitution. See Or. R. Civ. P. 4(L); Gray & Co. v. Firstenberg Mach. Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990) (“Oregon’s long-arm statute confers jurisdiction to the extent permitted by due process.”). The Court must therefore inquire whether its exercise of jurisdiction over ACCT “comports with the limits imposed by federal due process.” Daimler, 134 S.Ct. at 753.
“Due process requires that defendants ‘have certain minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). “The strength of contacts required depends on which of the two categories of personal jurisdiction a litigant invokes: specific jurisdiction or general jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). Specific jurisdiction is sometimes referred to as “case-specific” or “case-linked” jurisdiction, meaning it depends on an affiliation between the forum state and the underlying controversy, whereas general jurisdiction is sometimes referred to as “all-purpose” jurisdiction, [*7] meaning the court may assert jurisdiction over a defendant based on a forum connection unrelated to the underlying lawsuit (e.g., domicile, place of incorporation, or principal place of business). Walden v. Fiore, 134 S. Ct. 1115, 1121 n.6, 188 L. Ed. 2d 12 (2014). Almquist argues that specific jurisdiction exists over ACCT.
The Ninth Circuit employs the following three-prong test to determine if a defendant has sufficient minimum contacts to be subject to specific jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.
Picot, 780 F.3d at 1211 (quotations and citation omitted). Plaintiff bears the burden of satisfying the first two prongs. CollegeSource, 653 F.3d at 1076. The burden then shifts to the moving defendant to present “a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)) [*8] .
“The exact form of [a court’s] jurisdictional inquiry depends on the nature of the claim at issue.” Picot, 780 F.3d at 1212. For claims sounding in contract, courts in this circuit “generally apply a ‘purposeful availment’ analysis and ask whether a defendant has ‘purposefully avail[ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'” Id. (quoting Schwarzenegger, 374 F.3d at 802). For claims sounding in tort, courts in this circuit “instead apply a ‘purposeful direction’ test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere.” Id. Almquist asserts a tort claim against ACCT. Accordingly, ACCT’s motion to dismiss implicates only the purposeful direction test.
B. Specific Jurisdiction over ACCT
1. Purposeful Direction Test2
2 Almquist alleges a state negligence action against ACCT. As such, the “effects” test of Calder v. Jones, 465 U.S. 783, 788-89, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), is inapplicable to the Court’s purposeful direction analysis in this case. See Holland America Line Inc. v. Wartsila North America, Inc., 485 F.3d 450, 460 (9th Cir. 2007) (holding that “it is well established that the Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here” (citing Calder, 465 U.S. at 789)); Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1088 (9th Cir. 2000) (emphasizing that Calder requires [*9] the defendant to individually and wrongfully target the plaintiff).
“A showing that a defendant purposefully directed his conduct toward a forum state . . . usually consists of evidence of the defendant’s actions outside the forum state that are directed at the forum, such as the distribution in the forum state of goods originating elsewhere.” Schwarzenegger, 374 F.3d at 803; see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (“The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”). Due process permits the exercise of personal jurisdiction over a defendant who “purposefully direct[s]” his activities at residents of a forum, even in the “absence of physical contacts” with the forum. Burger King, 471 U.S. at 476.
ACCT argues that it did not purposefully direct its activities toward Oregon.3 By Declaration, Todd Domeck, Vice Chairman of the Board of Directors with ACCT, informed the Court that ACCT is a Delaware non-profit corporation with its principal place of business in Illinois. (Todd Domeck Decl. ΒΆ 3, Oct. 4, 2015.) ACCT has no office or registered agent in Oregon, and no employees who reside in Oregon. [*10] (Domeck Decl. ΒΆΒΆ 4-6.) Domeck also states that “ACCT was not consulted during the construction of the ‘Giant Swing,'” nor did ACCT provide training for “any employees of the Bar-M-Ranch who were to be operators of the ‘Giant Swing.'” (Domeck Decl. ΒΆΒΆ 9-10.)
3 ACCT also argues that “there has been absolutely no evidence submitted that plaintiff, the camp, or the specific ride operator . . . ever had any interaction with ACCT . . . or that they in any way relied on any information promulgated by ACCT.” (Def.’s Reply 10.) With regard to ACCT’s claim that Almquist cannot show that ACCT directed activity toward the people involved in the accident, this argument is foreclosed by the Supreme Court’s decision in Walden. 134 S. Ct. at 1122 (“[O]ur “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”) With regard to ACCT’s contention that Almquist has not shown reliance on the “information promulgated by ACCT,” that evidence is relevant to the merits of Almquist’s claim for negligence, and not to the jurisdictional question presently before the Court.
In light of those facts, the jurisdictional analysis here turns on the extent [*11] to which ACCT, as a non-profit trade association, acted by way of its website and its certification of Synergo to create a presence in Oregon. In aid of the Court’s analysis of ACCT’s purposeful direction in Oregon, the Court relies on the uncontroverted allegations of the Amended Complaint, the Micah Henderson Declaration, and the Internet websites of ACCT and Synergo.4 See Boschetto, 539 F.3d at 1015 (“plaintiff need only make a prima facie showing of jurisdictional facts” (quotations and citation omitted)).
4 ACCT argues that the websites are not authenticated and, thus, should not be considered by the Court. ACCT’s and Synergo’s websites were created and are maintained by Defendants in this case. Further, there is no challenge to the accuracy of the content presented on the websites. The parties dispute the sufficiency of ACCT’s contacts with Oregon, including contacts made through ACCT’s website. In the context of Almquist’s prima facie showing on a motion to dismiss for lack of personal jurisdiction, the Court may consider the information provided by ACCT and Synergo on their commercial websites. See, e.g., West Marine, Inc. v. Watercraft Superstore, Inc., No. C11-04459 HRL, 2012 U.S. Dist. LEXIS 18973, 2012 WL 479677, at *10 (Feb. 14, 2012) (“Courts have taken notice of defendants’ [*12] websites or characteristics thereof when determining personal jurisdiction.”); Coremetrics, Inc. v. Atomic Park.com, LLC, 370 F. Supp. 2d 1013, 1021 (N.D. Cal. 2005) (taking judicial notice of defendants’ website in personal jurisdiction analysis).
a. ACCT’s Website
The Ninth Circuit has established a sliding scale analysis to consider how interactive an Internet website is for the purpose of determining its jurisdictional effect. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (“In sum, the common thread, well stated by the district court in Zippo, is that the ‘likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.'”) (quoting Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)); see also ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002) (holding that a state may assert jurisdiction over a nonresident defendant “when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable to the State’s courts”).
On its website, ACCT describes itself as “the world’s leading and largest American National Standards Institute (ANSI) Accredited Standards Developer focused specifically and solely on the [*13] challenge course industry.” http://www.acctinfo.org (last visited May 20, 2016). Through its website, ACCT represents that it “develops, refines, and publishes standards for installing, maintaining, and managing challenge courses; provides forums for education and professional development; and advocates for the challenge course and adventure industry.” Id. ACCT’s website is an interactive commercial website, and ACCT uses it to advertise and sell its services and merchandise. Specifically, individuals and businesses may purchase memberships and ACCT’s standards book, apply and register for inspector certification courses and exams, and access challenge course related employment listings.
As of November 2015, ACCT had 2,524 total members, with 136 of those members located in Oregon. (Micah Henderson Decl. ΒΆ 7, Jan. 7, 2016.) As such, slightly over 5% of ACCT’s worldwide members are located in Oregon. In addition, three of ACCT’s 129 certified inspectors (2.3%) are located in Oregon. (Henderson Decl. ΒΆ 9.) During the period from June 1, 2014 through November 24, 2015, seven of the 200 standards (3.5%) sold by ACCT were delivered within Oregon. (Henderson Decl. ΒΆ 10.) ACCT attributes less than one percent of [*14] its 2015 annual dues to members located in Oregon. (Henderson Decl. ΒΆ 8.) Finally, as of November 12, 2015, two of the 100 job postings (2%) on ACCT’s website were related to jobs in Oregon. (Henderson Decl. ΒΆ 11.) ACCT solicited and transacted these sales and services through its website.
Although the business ACCT conducts in Oregon is not overwhelming, the Court concludes that the nature and quality of ACCT’s contacts with Oregon via its website are sufficient to satisfy the purposeful direction test. See Tech Heads, Inc. v. Desktop Serv. Cntr., Inc., 105 F. Supp. 2d 1142, 1150-51 (D. Or. 2000) (finding personal jurisdiction proper where plaintiff presented evidence of a transaction involving an Oregon resident made through the defendant’s interactive website); see also Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891-892 (6th Cir. 2002) (holding that quantity and specifically a “‘percentage of business’ analysis” is not the proper test for personal jurisdiction; rather the proper test is “whether the absolute amount of business conducted . . . [in the forum state] represents something more than ‘random, fortuitous, or attenuated contacts’ with the state”) (quoting Burger King, 471 U.S. at 475); Zippo Mfg. Co., 952 F. Supp. at 1126-1127 (recognizing that 3,000 subscriptions, or 2 percent of total subscriptions, was a sufficient basis for jurisdiction because the Supreme Court emphasizes the nature and [*15] quality of contacts with the forum rather than the quantity of contacts); cf. Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F. Supp. 2d 907, 923 (D. Or. 1999) (declining to find personal jurisdiction based on an interactive website when there was no evidence of transactions with forum residents or evidence that the forum was targeted).
In any event, even if ACCT’s reach into Oregon via its website was not sufficient, standing alone, to confer personal jurisdiction, the Court finds that ACCT’s reach into Oregon went beyond mere solicitation of members and sales through its website. See Brayton Purcell, 606 F.3d at 1129 (“operating even a passive website in conjunction with something more — conduct directly targeting the forum — is sufficient to confer personal jurisdiction” (quotations and citation omitted)).
b. ACCT’s Contacts Directed at Synergo
The Court finds that ACCT directly targeted Oregon through the following actions: ACCT’s certification of Oregon-based Synergo as a PVM, advertising Oregon-based Synergo as a PVM (including recommending that consumers hire Synergo), and setting standards for the inspection of challenge courses, to which ACCT required Synergo to adhere. Specifically, ACCT established and promoted PVM designations for companies, including Synergo, that successfully complete [*16] the application and accreditation process, which can take up to 18 months to complete, and includes a site visit of one-to-three days in duration. http://www.acctinfo.org/page/PVMApplication (last visited May 20, 2016). ACCT describes the process as “a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards.” Id. After the stringent review process and onsite visit, ACCT endorses the PVMs as ” highly experienced and competent . ” http://www.acctinfo.org/?page=PVMList (last visited May 20, 2016). ACCT’s website directs consumers to PVMs, including providing a link to Synergo’s website. In turn, Synergo prominently displays its ACCT membership on its website, and advertises its ACCT-certified services, including inspection services in Oregon. http://www.teamsynergo.com (last visited May 20, 2016). Finally, ACCT has utilized Oregon-based Synergo personnel in the ranks of its leadership, including Synergo’s owner, Marter (ACCT’s Board of Directors), and Lindsay Wiseman James (ACCT’s Chair of the Public Relations/Marketing Committee). http://www.acctinfo.org/?92; http://www.acctinfo.org/?page=140&hhSearchTerms=%22 synergo%22 (last visited May 20, 2016).
The Court finds that ACCT’s close relationship with and promotion of Oregon-based Synergo establishes purposeful direction [*17] into Oregon, especially when considered in conjunction with the reach of ACCT’s interactive website to Oregon members and consumers. Accordingly, the first prong of the specific jurisdiction test (purposeful direction), is satisfied here.
2. Arising out of or Relating to the Forum Activities
The second prong of the specific personal jurisdiction test requires a plaintiff to demonstrate that the claims arise out of, or are related to, defendant’s forum-related activities. Ziegler v. Indian River County, 64 F.3d 470, 474 (9th Cir. 1995). Courts apply a “but for” test — that is, a showing that the claims would not have arisen but for ACCT’s contacts with Oregon. Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001); Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995) (“We rely on a ‘but for’ test to determine whether a particular claim arises out of forum-related activities and thereby satisfies the second requirement for specific jurisdiction.”).
Almquist contends that ACCT “sent Synergo its standards book in Oregon and understood that, as a certified ACCT professional inspector, Synergo would adhere to ACCT standards when it inspected challenge courses.” (Pl.’s Opp. 7.) Almquist alleges that Synergo did adhere to ACCT standards and, as a result, she was injured. (Pl.’s Opp. 7-8.) Conversely, ACCT argues that Almquist’s negligence claim is barred by Oregon [*18] statutes and administrative rules that regulate the duties owed, and by whom, when operating an amusement ride in this state. (Def.’s Reply 5-6.) ACCT contends that, under Oregon law, it does not owe a duty to Almquist. As such, her negligence claim cannot arise from ACCT’s activities in the forum as a matter of law.
Whether Almquist may prevail on the merits of her negligence claim against ACCT is not before the Court at this time. For the purpose of the Court’s jurisdictional analysis, Almquist’s claims, as alleged, arise from ACCT’s contacts with Oregon. Almquist has alleged that “but for” ACCT promulgating deficient safety standards, she would not have fallen and sustained injuries in Oregon. Thus, the contacts ACCT had with Oregon–i.e., certifying Synergo and allegedly setting inadequate course inspection standards to which Synergo was required to adhere–are also the conduct that give rise to Almquist’s claims. Accordingly, the second prong of the specific personal jurisdiction test is satisfied here.
3. Reasonableness
The third prong of the Ninth Circuit’s specific personal jurisdiction test “requires a finding that assertion of jurisdiction is reasonable,” meaning “the court must [*19] determine whether the assertion of personal jurisdiction would comport with traditional notions of ‘fair play and substantial justice.'” Unocal Corp., 248 F.3d at 925 (quoting Int’l Shoe Co., 326 U.S. at 326). To determine reasonableness, courts analyze seven fairness factors:
(1) the extent of a defendant’s purposeful interjection [into the forum]; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.
Burger King, 471 U.S. at 476-77. No one factor is dispositive; a court must balance all seven. Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486 (9th Cir. 1993).
ACCT argues that the exercise of jurisdiction would be unreasonable because it has not reached out to Oregon in any way, defending in Oregon would be a burden since it is based in Illinois, and Almquist cannot show that alternative forums are unavailable. (Mot. Dismiss 12-13.)
a. Purposeful Interjection
As discussed above, ACCT purposefully directed itself into Oregon by maintaining an interactive commercial website and by certifying and promoting [*20] Synergo. The Court finds the purposeful interjection factor weighs in favor of Almquist.
b. Burden on ACCT
Next, the court considers ACCT’s burden of litigating in Oregon. However, “unless the inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.” Caruth v. Int’l Psychoanalytical Ass’n., 59 F.3d 126, 128-29 (9th Cir. 1995). This is a high standard to meet, as courts have consistently held that modern technological advances reduce the burden of litigating in remote jurisdictions. See, e.g., Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998); Autobidmaster, LLC. V. Alpine Auto Gallery, LLC, No. 3:14-cv-1083-AC, 2015 U.S. Dist. LEXIS 65202, 2015 WL 2381611, at * 11 (D. Or. May 19, 2015) (“modern technological advances greatly reduce the burden of litigating in remote jurisdictions”).
ACCT is located in Illinois and does not have offices in Oregon. As such, there is some burden on ACCT to litigate in Oregon. However, ACCT does not contend the burden is so significant as to violate Due Process. The Court finds this factor weighs only slightly in favor of ACCT.
c. Conflict with Illinois Law
The parties agree this factor is neutral.
d. Oregon’s Interest
Oregon has a significant interest in providing a forum for people who are tortiously injured while working in the state. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (“It is beyond dispute that [*21] New Hampshire has a significant interest in redressing injuries that actually occur within the State.”) This interest extends to actions brought by nonresidents. Id.
Almquist was working in Oregon at the time of her injury. This factor weighs in favor of Almquist.
e. Efficient Judicial Resolution
The Court must also consider which forum can most efficiently resolve the dispute. To make this determination, the Court focuses on the location of the evidence and witnesses. Caruth, 59 F.3d at 129. The evidence and potential witnesses reside in Oregon, Washington, California, and Illinois. As such, one party must litigate in a foreign venue. While ACCT argues that its witnesses are located in “other states,” it does not contend that its burden is greater than Almquist’s were she forced to litigate elsewhere. In addition, this factor is “no longer weighed heavily given the modern advances in communication and transportation.” Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1133 (9th Cir. 2003).
Conversely, Almquist argues that almost all of the witnesses and evidence are located in Oregon or Washington. In addition, the accident occurred in Oregon, and the witnesses who ran the challenge course are likely residents of Oregon. Synergo is based in Oregon and performed its inspection [*22] of the Bar-M-Ranch in Oregon. The initial healthcare providers who treated Almquist are located in Oregon. Moreover, this action will go forward regardless of the outcome of the motion to dismiss because Synergo remains a defendant in this litigation. See Core-Vent Corp., 11 F.3d at 1489 (finding that efficiency factor tipped in plaintiff’s favor because the lawsuit would continue in the forum state with other parties); see also Washington State University Foundation v. Oswald, No. 3:99-cv-907-AS, 1999 U.S. Dist. LEXIS 21232, 2000 WL 251661, at *3 (D. Or. Jan. 3, 2000) (exercising personal jurisdiction where the forum state “appeare[d] to be the only jurisdiction in which the parties may totally resolve the action”).
This factor weighs in favor of Almquist.
f. Convenience and Effective Relief for Almquist
The Court next considers the importance of the forum to Almquist’s interests in convenient and effective relief. If Oregon is not a proper forum, Almquist will be forced to litigate its claim against ACCT in Illinois or Delaware, which presents inconvenience for Almquist in light of her medical condition and her claim against Synergo that will be litigated in this Court.
Traditionally, courts have not given a lot weight to this factor. See Ziegler, 64 F.3d at 476. However, the factor must be considered and it weighs in favor [*23] of Almquist.
g. Existence of an Alternative Forum
Finally, the Court must determine whether an adequate alternative forum exists. Almquist acknowledges that Illinois and Delaware are appropriate forums.5 This factor weighs in favor of ACCT.
5 At oral argument, counsel for Almquist informed the Court that the statute of limitations in both those forums likely foreclose the opportunity for Almquist to refile her negligence claim against ACCT in either Illinois or Delaware. The Court notes that savings statutes in both Illinois and Delaware may toll the statute of limitations, if this Court were to dismiss the claims against ACCT for lack of personal jurisdiction. See 10 Del. C. Β§ 8118; 735 ILCS 5/13-217.
h. Balance of the Reasonableness Factors
Applying the seven-factor test, the Court concludes that exercising personal jurisdiction over ACCT is reasonable, and comports with fair play and substantial justice. The first, fourth, fifth, and sixth factors weigh in favor of Almquist, although the sixth factor is given little weight. The second and seventh factors weigh in favor of ACCT. The third factor is neutral. Although some factors weigh in favor of ACCT, it did not present a “compelling case” that exercising jurisdiction in [*24] this Court is unreasonable. See Boschetto, 539 F.3d at 1016 (“If the plaintiff establishes both prongs one and two, the defendant must come forward with a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.”)
All of the requirements for specific jurisdiction are satisfied here. Accordingly, the district judge should deny ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction.
IV. CONCLUSION
For the reasons set forth above, the district judge should DENY ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 31).
V. SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
Dated this 20th day of May 2016.
/s/ Stacie F. Beckerman
STACIE F. BECKERMAN
United States Magistrate Judge
The dissent in this case argues because the release was not presented to the plaintiff until he had traveled to the resort it should be void.
Posted: November 16, 2015 Filed under: Jurisdiction and Venue (Forum Selection), New York, Skiing / Snow Boarding | Tags: Equipment Release, Jurisdiction, Jurisdiction and Venue (Forum Selection), New York, Release, Ski Rental, Venue Leave a commentCase was moved from plaintiffβs town to the ski area home town based on the venue selection clause in equipment rental release. However the dissent would void venue selection clause because it was only presented to the plaintiff after the plaintiff traveled to the skis area. The dissenting judge had federal decisions that supported him.
State: New York, Supreme Court of New York, Appellate Division, Second Department
Plaintiff: David Karlsberg
Defendant: Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain
Plaintiff Claims: failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility
Defendant Defenses: Release changes the venue
Holding: For the Defendant, venue changed
Year: 2015
This is a simple case. The plaintiff traveled to Hunter Mountain Ski Bowl, in upper New York. Upon arrival the plaintiff signed an equipment release. He rented a snowboard and took a snowboarding lesson. How he was injured was not in the decision.
The plaintiff filed suit in Suffolk County New York (Long Island). The equipment release the plaintiff signed had a jurisdiction clause that stated any lawsuits had to βbe litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”
The trial court transferred the case and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The decision, a New York Appellate court decision was short. It simply said the trial court was correct. The decision reviewed the claims of the plaintiff for the reasons why the release should be voided.
Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not contravene public policy Β Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was made within a reasonable time after the commencement of the action
However, no reasons were given why the claims were denied.
The dissenting opinion was longer. The dissent basically argued βthe better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.β
The dissent then went through New York Law and case law from the federal courts in New York. The federal courts have upheld claims like the plaintiffβs that the release should be void because it was presented after the plaintiff had traveled and arrived at the destination.
However there was one prior case, almost identical to this one where the release was upheld even through claims of voiding the release because the plaintiff had traveled without knowing he or she would sign a jurisdiction and venue clause were denied. As such, the decisions from the state courts were controlling and basically βoverruledβ the federal court decisions because the decisions involved an interpretation of state law.
So Now What?
Avoid making the courts wonder about your relationship with the plaintiff and whether you attempted to hide information from the plaintiff or mislead the plaintiff. On your website and in your brochure tell prospective clients that they have to sign a release when they arrive.
Better, please the release online so they can review the release and see what they are signing. Releases are signed every day for all sorts of activities should it should be no shock that your clients will be signing one. Consequently donβt be afraid to be honest and tell them in advance.
If, upon arrival, a guest decides they donβt want to sign your release what are you going to do? The guest will have a valid claim for you to repay all of their money for the travel they incurred. Are you prepared to refund all of the money the guest spent with you and possibly repay what the guest spent to get to your destination?
Easier to post your release online and tell your clients in advance they have to sign it then to write a check when they find out and are upset about it.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation LawΒ Β Β Β Β Β Β Β Β Β Rec-law@recreation-law.comΒ Β Β Β James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Release, Venue, Jurisdiction, Jurisdiction and Venue, New York, Equipment Release, Ski Rental,
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Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746
Posted: November 16, 2015 Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, New York, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Equipment Release, Jurisdiction, Jurisdiction and Venue (Forum Selection), New York, Release, Ski Rental, Venue Leave a commentKarlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746
David Karlsberg, appellant, v Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain, respondent. (Index No. 38816/11)
2014-05431
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746
September 23, 2015, Decided
COUNSEL: [*1] The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and Meir Katz of counsel), for appellant.
Carol A. Schrager, New York, N.Y. (Beth A. Willensky of counsel), for respondent.
JUDGES: JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, JJ. LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.
OPINION
[***746] DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), entered March 24, 2014, as, upon reargument, adhered to a prior determination in an order of the same court dated December 3, 2012, granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.
ORDERED that the order entered March 24, 2014, is affirmed insofar as appealed from, with costs.
On March 19, 2011, the plaintiff sought beginner snowboarding lessons at the defendant’s facility, and signed an “Equipment Rental Form and Release of Liability” that provided, among other things, that
“all disputes arising under this contract and/or the use of this equipment and/or the use of the facilities [*2] at Hunter Mountain Ski Bowl, shall be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”
In December 2011, the plaintiff commenced this action in the Supreme Court, Suffolk County, alleging that an instructor employed by the defendant failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility. In September 2012, the defendant moved, inter alia, pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.
Upon reargument, the Supreme Court properly adhered to its original determination [***747] granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County. Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not [**2] contravene public policy (see Molino v Sagamore, 105 AD3d 922, 923, 963 N.Y.S.2d 355; KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650, 651, 897 N.Y.S.2d 649; LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 N.Y.S.2d 657). Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was [*3] made within a reasonable time after the commencement of the action (see CPLR 511[a]; Medina v Gold Crest Care Ctr., Inc., 117 AD3d 633, 634, 988 N.Y.S.2d 578; Bonilla v Tishman Interiors Corp., 100 AD3d 673, 953 N.Y.S.2d 870).
LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.
CONCUR BY: DICKERSON
CONCUR
DICKERSON, J., concurs in the result, on constraint of Molino v Sagamore (105 AD3d 922, 963 N.Y.S.2d 355), with the following memorandum:
I vote with the majority on constraint of this Court’s precedent, but I write separately to express my view that the better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.
In Molino, the injured plaintiff made a reservation to stay as a guest at a resort in Warren County (see id.). Upon arrival, and while registering for the stay, the injured plaintiff signed a document, entitled “Rental Agreement,” containing a provision stating that “if there is a claim or dispute that arises out of the use of the facilities that results in legal action, all issues will be settled by the courts of the State of New York, Warren County” (id.). After the injured plaintiff allegedly tripped and fell on the resort’s property, she, and her husband suing derivatively, commenced an action against the resort in the Supreme Court, Queens County (see id.). This Court held that the Supreme [*4] Court should have granted the defendant’s motion pursuant to CPLR 501 and 511 to change the venue of the action from Queens County to Warren County, concluding that the plaintiffs failed to demonstrate that: (1) enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy; (2) the clause was invalid because of fraud or overreaching; or (3) a trial in the selected forum of Warren County would, for all practical purposes, deprive them of their day in court (see id. at 923).
In so holding, the Molino Court cited Carnival Cruise Lines, Inc. v Shute (499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622) for the proposition that “the fact that the Rental Agreement containing the forum selection clause was presented to the plaintiffs at registration and was not the product of negotiation does not render it unenforceable” (Molino v Sagamore, 105 AD3d at 923). In Carnival Cruise Lines, the United States Supreme Court concluded that the United States Court of Appeals for the Ninth Circuit erred in refusing to enforce a forum selection clause contained on the face of cruise tickets issued to the plaintiffs in that case. However, the United States Supreme Court noted that it did not “address the question of whether [the plaintiffs] [***748] had sufficient notice of the forum selection clause before [*5] entering the contract for passage” (Carnival Cruise Lines, Inc. v Shute, 499 US at 590) because the plaintiffs had essentially conceded that they had notice of the forum selection provision and the Ninth Circuit had evaluated the enforceability of the forum clause under the assumption, although ” doubtful,'” that the passengers could be deemed to have knowledge of the clause (id., quoting Shute v Carnival Cruise Lines, 897 F2d 377, 389 n 11 [9th Cir]).
In Sun Trust Bank v Sun Intl. Hotels Ltd. (184 F Supp 2d 1246 [SD Fla]) and Foster v Sun Intl. Hotels, Ltd. (2002 WL 34576251, 2002 US Dist LEXIS 28475 [SD Fla, No. 01-1290-CIV]), the United States District Court for the Southern District of Florida concluded that forum selection clauses set forth in reservation forms that were not shown to consumers until they arrived at a resort were unenforceable because the consumers were not given an adequate opportunity to consider the clause and reject their contracts with the resort (see Foster v Sun Intl. Hotels Ltd., 2002 WL 34576251, *1, 2002 US Dist LEXIS 28475 *3-4; Sun Trust Bank v Sun Intl. Hotels Ltd., 184 F Supp 2d at 1261-1262). Similarly, in Ward v Cross Sound Ferry (273 F3d 520 [2d Cir]), the United States Court of Appeals for the Second Circuit held that a contractual statute of limitations clause set forth in a ticket issued to a cruise passenger just minutes before she boarded a ship, and then collected at boarding, was not enforceable because the circumstances did not permit the passenger to become meaningfully informed of the contractual terms at stake (see id. at 523-526). By contrast, where forum selection clauses have been sent [*6] to consumers or travel agents prior to the [**3] consumer’s arrival at the subject resort, or where consumers had visited the subject resort on previous occasions and signed forms containing similar forum selection clauses, the United States Court of Appeals for the Eleventh Circuit has found that the clauses were reasonably communicated to the consumers and, thus, enforceable (see McArthur v Kerzner Intl. Bahamas Ltd., 607 Fed. Appx. 845, 2015 WL 1404409, *1-2, 2015 US App LEXIS 5058, *6-7 [11th Cir, No. 14-138897]; Pappas v Kerzner Intl. Bahamas Ltd., 585 Fed Appx 962, 965-966 [11th Cir]; Estate of Myhra v Royal Caribbean Cruises, Ltd., 695 F3d 1233, 1246 [11th Cir]; Krenkel v Kerzner Intl. Hotels Ltd., 579 F3d 1279, 1282 [11th Cir]).
While I believe that the federal cases discussed above set forth the better rule, the doctrine of stare decisis dictates that we follow our prior decision in Molino, which is factually indistinguishable from this case in all relevant respects (see Matter of State Farm Mut. Auto Ins. Co. v Fitzgerald, 25 NY3d 799, 2015 NY Slip Op 05626 [2015]; Eastern Consol. Props. v Adelaide Realty Corp., 95 NY2d 785, 788, 732 N.E.2d 948, 710 N.Y.S.2d 840). Accordingly, I agree with the majority that the subject forum selection clause was enforceable, notwithstanding the fact that it was shown to the plaintiff for the first time upon his arrival at the defendant’s facility. I also agree with the majority’s other conclusions, and that, upon reargument, the Supreme Court properly adhered to its prior determination granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.
Poorly written release and allegation of duress push whitewater rafting ligation to Pennsylvania Appellate court.
Posted: September 28, 2015 Filed under: Jurisdiction and Venue (Forum Selection), Pennsylvania, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: Contract of Adhesion, Economic Compulsion. Duress, Guide, Guided River Trip, Jurisdiction, Lehigh River, Rafting, Venue, Whitewater Rafting Leave a commentRelease probably not written by an attorney, signed in one state for rafting in another state and probably one where the economics suggest an insurance company is playing plaintiff.
Mcdonald v. Whitewater Challengers, Inc., 2015 PA Super 104; 116 A.3d 99; 2015 Pa. Super. LEXIS 232
State: Pennsylvania
Plaintiff: Erin Mcdonald
Defendant: Whitewater Challengers, Inc., and Whitewater Challengers Outdoor Adventure Center, T/D/B/A Whitewater Challengers, Inc.
Plaintiff Claims: a. Failing to provide a river guide / instructor in plaintiffβs boat;
b. Failing to provide a properly inflated raft;
c. Failing to advise Plaintiff on the grade and / or class of the whitewater rapids;
d. Failing to properly instruct Plaintiff on how to safely and effectively maneuver fast and difficult rapids; and
e. Allowing an unsafe number of inexperienced rafters to operate a raft.
Defendant Defenses: Release
Holding: For Defendants
Year: 2015
The plaintiff was a teacher at a school that brought 72 kids whitewater rafting with the defendant on the Lehigh River. The school was located, and the plaintiff lived in New York. The defendant was located and the Lehigh River, where the rafting occurred, was in Pennsylvania.
While still at work two days before the trip her supervisor handed a release which she signed. The release had a venue clause which means any lawsuit must be in Pennsylvania but not a jurisdiction clause.
While rafting the plaintiffβs boat struck a rock ejecting the plaintiff from the raft which injured her.
The plaintiff and defendant filed various motions prior to trial. The plaintiff wanted New York law to apply because she had signed the release in New York and was from New York. (The plaintiff wanted the suit brought under New York law because New York does not recognize releases. See States that do not Support the Use of a Release.) The defendant wanted Pennsylvania law to apply, which generally upholds releases.
The court ruled against both parties and denied the release because the plaintiff made an allegation that she was forced to sign the release (duress) therefore, the release should be void. The trial court approved a motion to appeal these issues prior to trial and the appellate court accepted the appeal.
Analysis: making sense of the law based on these facts.
The plaintiff started her argument with three theories on the location where the release was signed was the proper jurisdiction for interpreting the law, New York. Β
The plaintiff also argued that because the defendant did not have a jurisdiction clause in its release, then obviously the defendant wanted New York law to apply.
Finally, she argued that because her medical bills and treatment would be generated and done in New York that law should apply.
She maintains that because she signed the release in New York, the contract was formed in New York. As a New York resident, McDonald asserts she is entitled to the benefit of New York law. McDonald claims that if Whitewater intended for Pennsylvania law to apply, then it should have included such a clause in its release. She points out that most of her medical treatment occurred in New York and that the New York State Insurance Fund has an interest in recouping her lost wages and medical expenses.
The court started its examination of the law to be applied by first looking at whether tort law or contract law applied. Tort law is the law of injuries and has different requirements to prove jurisdictional issues than contract law, which is what a release is. The court found that contract law applied without much analysis on how it came to that decision.
The court then looked at how a conflict of law’s decision was to be made by the courts when deciding in a contract basis where the contract is silent on the issue of jurisdiction.
β¦the first step in a choice of law analysis under Pennsylvania law is to determine whether [an actual] conflict exists between the laws of the competing states. If no [actual] conflict exists, further analysis is unnecessary. An actual conflict exists if “there are relevant differences between the laws.
The analysis of what law applies; New York or Pennsylvania is extensive. If only one state would be harmed (the interests of the party from that state), then the issue is a false conflict. If the interests of both states would be harmed (the residents of both states would be harmed) by the decision, then the issue is a true conflict issue. βIn such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.β
A third situation would exist if the parties of neither state would be harmed. This is called a βneither jurisdictionβ issue. This occurs when the law of both states is identical.
In sum, in Pennsylvania, a conflict-of-law analysis not involving a statutory or contractual choice of law clause, first requires determining whether the laws in question actually conflict. If relevant differences between the laws exist, then we next classify the actual conflict as a “true conflict,” “false conflict,” or “unprovided-for conflict.”
Instantly, a New York statute voids clauses immunizing recreational facilities from liability for negligence because they violate New York’s public policy. Pennsylvania, however, recognizes the validity of such exculpatory clauses when they govern voluntary and hazardous recreational activities.
The court determined that this is a true conflict case where both parties would be harmed, based on their desire for the jurisdiction to be applied in their state.
The next issue once a true conflict has been determined is for the court to determine who (what state) would be harmed the most by a decision. βWe thus ascertain whether New York “or Pennsylvania has the greater interest in the application of its law to the question now before us.β
The actual analysis came down to how the court looked at the issues.
But, comparable to the insurance policy in Walter, the instant release was executed for the purpose of protecting Whitewater, a Pennsylvania business that “had the right to expect that [the release] conformed to [Pennsylvania] law and that the laws of [Pennsylvania] would apply in interpreting the [release].” “[I]t seems only fair to permit” Whitewater to rely on Pennsylvania law when it acted within Pennsylvania. Whitewater should not be placed in jeopardy of liability exceeding that created by Pennsylvania law just because McDonald is a visitor from New York, a state offering higher protection.
The court decided that the law of Pennsylvania would apply. Because the activity where the accident occurred giving rise to the litigation occurred in Pennsylvania the court determined Pennsylvania law would control.
After carefully weighing the sovereign interests at stake, which include contacts establishing the significant relationships with each sovereign, we hold that Pennsylvania has the greater interest in the application of its law to this case.
The court then went into the analysis of the plaintiffβs claim the release should be thrown out because it was signed under duress.
[McDonald] had testified in her deposition that on May 17, 2006, the Headmaster of the School of the Holy Child handed the Release form to [McDonald], while she was between classes and walking through the school hallway and told her to sign it, since she would be one of the chaperones for the students on the rafting trip.
[McDonald] alleges she signed the Release form without reading it.
The plaintiff stated she did not read the release; however, because she had been on a previous whitewater trip.
The plaintiff next argued that she had no choice but to sign the release because it was required by her job. The court then looked at the issues the plaintiff faced in her annual performance evaluations and found that she would not suffer financially if she had not gone on the trip, therefore, she could not claim she was forced to sign the release.
The defendant argued that it did not compel or force the plaintiff to sign the release. If anyone did, her employer did. Since her employer was not a party to the contract, the release, then there could not be any duress.
To constitute duress or business compulsion there must be more than a mere threat which might possibly result in injury at some future time, such as a threat of injury to credit in the indefinite future. It must be such a threat that, in conjunction with other circumstances and business necessity, the party so coerced fears a loss of business unless he does so enter into the contract as demanded.
Because the defendant was not the party βforcingβ the plaintiff to sign she could walk away from the release.
Instantly, we frame Whitewater’s question as whether one party to a contract can invoke duress when that duress was allegedly imposed by a non-party and not by the other party to the contract. More precisely, we examine whether McDonald can void the release by claiming the School of the Holy Child economically compelled her to sign the release with Whitewater. McDonald’s presumption is that economic compulsion, i.e., duress, by a non-party to a contract can be “transferred.”
Because the plaintiff was free to walk away from the rafting trip and consequently, the release, the court agreed with the defendant and found there was no duress. βIt follows that the School of the Holy Child could not elicit the assent of McDonald by duress.β
Nor did the plaintiff ever claim that the defendant compelled her to sign the release, the only party that a claim of duress against whom the claim could be found. The defendant provided recreational services, which are not something that a claim of duress can be used.
Because a release is not a contract of adhesion, the plaintiff was not forced to sign it.
Thus, an exculpatory clause is not typically analyzed within the framework of whether it is a contract of adhesion. (“The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”).
The court found that the plaintiff could not be compelled by anyone and was not compelled by the defendant to sign the release.
The court then looked at whether the release was viable under Pennsylvania law.
It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.
If the release is found to be valid, it must still be examined under Pennsylvania to see if it meets four more tests.
β¦unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
The court looked at Pennsylvania law and found releases were valid for inherently dangerous sporting activities.
Regarding the first element needed for a valid exculpatory clause, Pennsylvania courts have affirmed exculpatory releases for “skiing and other inherently dangerous sporting activities,” such as snowtubing and motorcycle racing. Other activities include automobile racing, paintballing, and whitewater rafting. Thus, Pennsylvania courts have held exculpatory clauses pertaining to inherently dangerous sporting activities do not “contravene any policy of the law.”
The court also found the release would be valid if it was between two parties for their own private affairs.
With respect to the second element, our Supreme Court held “[t]he validity of a contractual provision which exculpates a person from liability for his own acts of negligence is well settled if the contract is between persons relating entirely to their own private affairs.”
The court then examined the release and found it spells out the intention of the parties with particularity and shoes the intent of the parties to release the defendant from liability.
The court held the release was enforceable.
So Now What?
This case is long but brings up some interesting arguments to void releases and does a good job of explaining Pennsylvania law on releases.
First the argument that by leaving a specific clause out of a release is proof the person offering the release agrees to the lack of the clause is very scary. Most releases out there leave out a lot. I signed one the other day for an activity that left out both a jurisdiction and venue clause. I signed the release in Nevada where activity occurred. If injured, I would be allowed to sue the California Corporation in Nevada because by not putting the clause in the release it agreed to jurisdiction different from the venue clause.
Thankfully, this argument did not fly. However, it will be picked up in the future and used more often. You cannot tell when a judge or appellate panel will adopt it.
The duress argument is also valid. Duress cannot occur for recreational activities because like the public policy argument, the guest is free to walk away and loses nothing necessary for life. The duress argument is another one that might be brought when the person on the trip is therefore, more than their own enjoyment.
If they are an employee or volunteer of a church or other youth group, if they are required to do public service if they have an employer who wants them to participate, the argument is valid for duress; however, the wrong defendant is being sued. The duress must be brought by the person you are suing to void the release, not the person who made you sign it.
At the same time, it brings up the argument that this might be a subrogation claim brought by the plaintiffβs health insurance carrier or possibly workerβs compensation carrier. If the plaintiff was successful in arguing that the whitewater rafting, trip was part of her employment her injuries, lost wages, and other expenses would be covered by workerβs compensation. Her workerβs compensation insurance carrier then using the subrogation clause in the policy would have the right to sue any party that was the cause for the injuries.
A defense available to the plaintiff also bars any claims made by the insurer when applying the subrogation clause to sue. So a release signed by the plaintiff stops her lawsuit and also here insurerβs lawsuit.
Not having an enforceable jurisdiction clause in a release sent this litigation from the trial court to the appellate court and back again. In this case, it took nine years from the date of the accident, May 2006, and seven years from the start of the lawsuit, July 2008, for the case to be settled. The addition of βand jurisdictionβ to the release would have probably ended the case before it got started.
Think about the stress of dealing with a lawsuit against you for seven years.
If you think, the analysis is painful to read, it is. The decision is 27 pages long. There is an entire semester of class on this one subject in law school called βChoice of Laws.β The analysis each time one party claims the lawsuit should be somewhere else or the law applied to the case should be other states not the state where the lawsuit is, is extensive. These cases also take forever.
A case where a person died on a river trip in Arizona was brought in Texas. Six years after the death the Texas Supreme Court sent the case to Arizona where it started all over again. Moki Mac River Expeditions, v. Drugg, 221 S.W.3d 569; 2007 Tex. LEXIS 188; 50 Tex. Sup. J. 498
Of note in the decision but not brought out in the decision was the fact the defendant does not put a guide in every boat on this section of the Lehigh River. One of the claims made by the plaintiff was βa. Failing to provide a river guide / instructor in [McDonald’s] boat;β¦β
For more articles on Jurisdiction and Venue see:
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