Christopher Van Tilburg, M.D. is a well known and respected Wilderness Medicine Doc.
Posted: October 28, 2010 Filed under: First Aid Leave a commentHe also writes a great blog about the medical and first aid issues in the wilderness. And he writes in English.
Dr. van Tilburg’s post of October 7, 2010 is about altitude sickness. In a couple of paragraphs, Dr. van Tilburg has compiled research and solid information about AMS into a layman’s article.
The focus of his post was a study on Kilimanjaro that stated the standard tactics for fighting altitude sickness did not work. The study Incidence and predictors of acute mountain sickness among trekkers on Mount Kilimanjaro showed that neither a single rest day nor drugs stopped AMS.
The post The Golden Rules for Alitude Illness finishes with the Golden Rule for Altitude posted at the International Society for Mountain Medicine created by David Schlimn and Tom Dietz.
GOLDEN RULE I
If you feel unwell at altitude it is altitude illness until proven otherwise.
GOLDEN RULE II
Never ascend with symptoms of AMS.
GOLDEN RULE III
If you are getting worse (or have HACE or HAPE), go down at once.
A quote from Dr. van Tilburg’s website tells of his experience.
I work as a mountain doctor at a ski resort, as a mountain rescue volunteer, and in a local emergency room. In addition to writing seven books, I serve as Editor-in-Chief for Wilderness Medicine, the official magazine for Wilderness Medical Society, for which I write a column called “Great Gear for Work and Play.”
Dr. van Tilburg’s website can be found here. You should follow Dr. van Tilburg’s blog and read the study.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Insurance 101
Posted: October 27, 2010 Filed under: Insurance Leave a commentClaims/Deductibles and Costs
Insurance policies are contracts. They are governed by the law of contracts as well as a specific body of law covering insurance policies. As such the contract, the written document you receive upon paying your premium (money) controls the insured (you) and the insurance company. Because it is a contract, there are no exceptions outside of the written contract and any oral statements or promises do not apply to the contract.
Deductibles were introduced to eliminate small claims. A claim for $200 cost the insurance company $1000 whether the claim is paid or not. The insurance company must open a file and keep that file for a long time. The insurance company must investigate the claim, which may include sending out an adjuster out to look at the issues or to interview people. Every claim, large or small, costs the insurance company money. As such, to save money, the insurance companies introduced deductibles. You pay out $200 for your claim, and we will lower your premium by $X dollars and save us $XXX dollars.
Deductibles also eliminate questionable claims. The insurance company does not have to worry about paying a claim they don’t want to because it is lower than your deductible.
To understand this, call your insurance agent and ask for quotes on your homeowner’s insurance (easiest because it is a yearly premium) for Zero deductible, $250 $500 $1000 and $5000 deductibles. Take the savings between the zero deductible policy and the $1000 deductible policy cost and multiple it by 7. That number should be more than the higher deductible. That is because the average homeowners have a claim 1 every seven years (at least that was the average a few years ago. It might have changed because the number of years someone owns a house has dropped over the last 20 years.)
Example. Your premium for a zero deductible policy is $1000 a year. Your premium for a $1000 deductible policy is $800.00 per year. The difference: $200.00 times 7 is $1400.00. If you only have a claim 1 every 7 years you will have saved $400.00 by having a higher deductible. If you have a $2000 claim you pay $1000 and the insurance company pays $1000.00. You saved $400.00 and it cost the insurance company more than $1000.00.
Automobile insurance does not work quite the same way mathematically because the liability part of your insurance premium is the larger portion.
Why the lesson. Because whether your insurance premiums go up are not controlled by large claims. They are controlled by claims. Large claims are actuarially calculated and known to cost and time by the insurance company. Small claims are a pain in the butt for the insurance company. If you have too many small claims, the insurance company will not renew you, or they will increase your deductible and not change your premium. Insurance companies look at small claims made by policy holders as those people they do not want to do business with. They are a pain in the neck; they want to nickel and dime the insurance company.
Large claims only affect cost or renewal if they were totally the fault of the insured and should have been prevented. The insurance company looks at claims that were responsible as much as why the claim occurred. A large claim is usually one where no one had much control, whereas small claims are usually controllable. A small claim or a large claim that should have been controlled/prevented is the insured’s responsibility and something insurance companies do not stick around to deal with after they learn. As such, when the insured is at fault polices are not renewed or premiums go up.
Do the math. Ten $200 small claims can cost more that are not paid cost more than one $1500 claim that is paid? Paid claims cost less because they are easily determined and paid. “Yup we owe, write a check, done.” So now you understand insurance, claims and deductibles for your insurance policies.
What is a Release?
Posted: October 27, 2010 Filed under: Release (pre-injury contract not to sue) | Tags: Business, Connecticut, covenant, Lawsuit, Legal release, Outdoor recreation, Release, Releases / Waivers, Waiver, Wisconsin Leave a commentAll outdoor recreation, travel, tourism and fitness businesses use a release, (or should use a release). However, the legal description of what is a release is rarely explained to the business clients using them or the clients of the business signing them.
A Release can be known as Waiver although there are some issues with this term, Waivers are revocable. Some parts of the country also use the term Covenant Not to Sue to identify the clause in a release that prevents lawsuits. The Negligence Clause is another term for the actual part of the contract that prevents the possible lawsuit. Therefore, in most cases the term Release, Waiver or Covenant Not to Sue to some are interchangeable and have more of a geographic definition rather than a different legal definition.
Release is the word that is adopted as the term to describe the types of agreements we are discussing here by the majority of states. Waiver and covenant not to sue are used by a few southern states to describe these documents.
A release is a contract. A contract is an agreement between two or more parties, with consideration flowing to both parties and a meeting of the minds as to the terms of the contract. Contracts cannot be for illegal activities or things and most be enforceable by the courts.
Contracts are the basis for commerce in the world; how one party sells goods or services and the other party buys goods or services.
There must be two and can be thousands of parties to a contract. Each party must receive something of value or benefit. Each party must understand the basic terms of the contract. Not every term must be known or understood in the contract.
Consideration, the benefit or value in a contract, is easily defined as money, and in most contacts makes up one part of the transaction. With a local shopkeeper, a contact to buy a t-shirt consists of consideration (money) flowing to the shopkeeper and the purchaser receiving the t-shirt. Both parties knew the terms of the contract and both understood that was the purpose of the contract. The contract by the way was oral. Contracts can be in writing or can be oral. Oral contacts are hard to prove in a court.
In an outdoor recreation case, the consideration is money flowing to the outfitter and the opportunity to engage in the activity by the guest.
Contracts cannot be for illegal activities. Gambling debts are not enforceable in most states so a contract to pay a gambling debt is illegal. Most states, but not all, have done away with contracts for marriage also. (Marriage is not illegal, just to contract for a marriage is illegal.) Courts are reluctant to force people to act or do something specific such as standing on their head as an easy example.
A release then is a contract that covers something that may or may not happen in the future. It is the fact that the contract may not actually be enforced because of some future date that gives releases their special place in the law.
A release is also different from most contracts because the release is a contract where one party gives up or releases a future right, the right to sue. This possibility of giving up a future right is one of the issues that courts are divided and that cause courts problems. The right is the right to sue, a right that is given to US citizens in our constitution. As such, the courts scrutinize any constitutional right that is given up by someone. However, most courts have agreed that if the right is in writing and voluntarily given up for consideration, the release will be upheld. The right to contract between parties is greater and more important than the right to sue in most, but not all state supreme courts.
As stated earlier, contracts can be oral or written. Because a future right is at stake in releases, most courts will not enforce an oral release, such as reading the release over the phone to someone and having them agree to the terms of the release. At the same time, you should review electronic contracts and agreements, which are valid.
Release law is determined by each state; as such, it is difficult to define a release in an article written for the masses because of the different requirements of some states. In addition, some states have different requirements or statutory requirements for releases in some activities or recreational sports then other. Also, states are changing their stands on releases each year. Wisconsin, Arizona and Connecticut have done so in the past couple of years.
However, there are some general issues common to all releases and required in most states that support releases.
A release should use the magic word negligence. Negligence is the legal term for an accident (4-step test) that gives rise to a lawsuit. The release should state that your guests release you from any negligence on your part. Lacking this term, your release is a piece of paper with little value in the majority of states.
The second most important clause is the jurisdiction and venue clause. This clause defines the law of the state that will be applied to the case to interpret the release and the place where the lawsuit will be held. Your state law may uphold releases. However, your customer maybe from a state that does not support releases. Jurisdiction and venue clauses prevent your customer from dragging you into a different state and voiding your release.
The signature is also critical. For someone to sue on a breach of contract or to enforce a contract, the person who is being sued or the release that is being enforced must be signed. Therefore, the injured guest is the person who must sign the contract to have the release enforced. It is not necessary to witness the signature. The date and time of the accident along with the type of payment, usually a credit card will confirm the person was there and signed a release. In addition, handwriting experts can verify a signature.
Initialing paragraphs is also of no value and may cause problems. The courts look for a signature and nothing else. It does not matter to the courts if the release has been read. Initialing paragraphs may create a problem if one paragraph is not initialed. Does that mean that paragraph does not apply? Nor has the author ever found a case where the court commented on the initialed paragraphs as being necessary or important.
Initials, however, may be necessary if the paper that is being used has different contracts on it. The classic is a car rental contract. Part of the contract is a release and a promise to pay. That gets a signature. Declining additional insurance or promising to bring the car back full of gas are different contracts and as such initials might help prove those parts of the contract. However, if your document is one or two pieces of paper with one purpose and no white spaces or added information, you only need a signature.
There is a real difference of opinions between some attorneys as to the need to identify the risks of the activity. Most activities have so many possible risks that the release would be endless if it listed them all. However, there are two valid reasons for putting at least some of the possible risks in a release. The release has better “legal balance” if some of the risks are listed. It provides a background or a basis for the release if the document states some of the reasons for the reason behind the release. Courts always comment that the injury the plaintiff is complaining about was listed in the release.
A release with risks in it can also be used as assumption of the risk document. If the release is thrown out, the release can be used to prove the person assumed the risks and either eliminate a lawsuit or reduce the damages. For this to work, the risks of the activity must be in the release.
Because of state and federal laws concerning a release of medical information and the possibility of an injury, you should probably include a release for first aid care and release of medical information. Although federal HIPPA laws may not affect you, many states medical information privacy acts may. First aid negligence lawsuits rare, but they occur occasionally and are very dangerous. As such, you should include a release for any medical care you provide and any medical information you collect or pass on to other people.
There are dozens of other factors and clauses that may need to be included in your release. These are going to be dependent the state that is identified in your jurisdiction and venue clause, any state statutes that control releases or state laws that control the activity that the release covers. The type of activity you are providing, the guests you are recruiting and how close medical care is, may also change your release. Finally, any release for activities outside of the US must be written carefully.
Any article about releases always ends with a disclaimer and an admonition. The disclaimer is releases work in most states. However, release law changes every month. New state statures or Supreme Court justices can change the law affecting releases and subsequently your business.
The admonition is your release must be written by an attorney. The easiest example of this admonition is the courts. Releases written by attorneys are rarely contested in court. The releases you see in appellate and Supreme Court decisions are always those written by non-attorneys. The attorney you choose should also be one that understands release law and your business to give you the best chance at staying out of court.
To learn more about releases see:
Tennessee Supreme Court makes writing releases a little trickier.
What do you think? Leave a comment.
© 2010-2023 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
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Maine decision on minor injured in ski school conforms how most states will interpret the facts.
Posted: October 25, 2010 Filed under: Activity / Sport / Recreation, Maine, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Uncategorized | Tags: American Skiing Company, ski area, Ski Lessons, Sunday River Leave a commentNegligent supervision is not covered under most state skier safety acts.
Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
When reading a case, there are usually some tell-tale signs on how a decision will head. One indication is a misunderstanding of how the sport works by the court. In this decision, it is clear the court probably has never skied or been to a ski area.
The court commented on the fact that the ski area did not require skiers to take a class. The court used the term “hockey stop” to describe a way that a skier stopped. Finally, the court identified each time the plaintiff fell skiing, like it was something new or different.
Facts of this case are the mother of the injured skier signed her son up for skiing lessons. In the process of signing up for the lessons, the mother signed a release.
During the lesson, the son lost control of his skis and skied into a tree suffering injury.
The plaintiffs, mother and son, sued on a claim of negligent supervision of the injured son and for lost wages of the mother. The defendant ski area argued the Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act (Skier Act), 32 M.R.S.A. § 15217 and the release signed by the mother prevented their claims.
The court found the Skier Act protected the ski area from the inherent risks of skiing. The Skier Act also prevents suits for negligent operation of the ski area. The court found that negligent supervision was not an inherent risk found in the Skier Act nor was it part of the operation of the ski area.
The court then looked at the release and the two claims the defendant argued were prevented by the release. The first was the minor’s claim for his injuries.
The court found under Maine law that a release must “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” A release in Maine, as in most states, is strictly construed. This means the language of the release must be close to perfect to be upheld. The court found the release was not ambiguous (another possible defense) and the terms were clear in its intent.
The court then looked at whether Maine allowed a release to stop claims by minors and found it did not. A release under Maine law does not stop claims by a minor. This is in line with the law in more than 40 states.
The mother’s claims were based on the minor’s claims. This means for the mother to recover the minor’s claims had to be legally valid and not subject to a defense. Since the minor’s claims were valid, then the mother’s claims could proceed.
The mother’s claims are derivative claims. They derive from the main claim and are subject to all of the defenses of the main claim and any defenses of the derivative claim itself. If the main claim fails then the derivative claim also fails. Derivative claims are any claims that are created because of the main claim. Claims of spouses when another spouse is injured are derivative as is the claim of a parent when a child is injured.
The next issue was whether the ski area had a separate defense to the mother’s claims which it did. The claims of the mother were stopped under Maine law because the mother signed the release.
The final defense brought by the ski area was the indemnification language in the release. Indemnification language faces three battles in the courts.
1. Courts hate indemnification language in these situations.
2. Courts hate indemnification where the person who is injured is indemnifying against his own injuries.
3. Courts require indemnification language to be exact and the language is always strictly construed.
Here the court found that Maine law allows indemnification if the “indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties.” Here the court found the indemnification language in the release was ambiguous and was not conforming to the language required under Maine law. Therefor the court did not require indemnification by the parents for the son’s injuries.
So?
This decision with a similar set of facts is probably close to how the majority of state courts will rule.
The skier safety act does not cover negligent supervision.
A release does not stop a claim by a minor.
A release will probably stop a claim by an adult.
The indemnification language in a release will probably not support a counterclaim for indemnification by the defendant against the person who signed it.
Of course there are exceptions to the above statements. Some state skier safety acts would include operations of the ski school within the risks of skiing. Three or four states allow a parent to sign away a minor’s right to sue.
Very few if any courts will uphold indemnification language in a release. If you want to have an enforceable indemnification clause you probably will have to have a separate agreement with specific and exact indemnification language in the agreement.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
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Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16
Posted: October 18, 2010 Filed under: Legal Case, Release (pre-injury contract not to sue), Utah | Tags: Olympics, Utah Winter Sports Park, UWSP 2 CommentsJames Pearce, Plaintiff and Appellant, v. Utah Athletic Foundation, dba Utah Winter Sports Park, and Oscar Podar, a foreign individual or company, Defendants and Appellees.
No. 20061030
SUPREME COURT OF UTAH
2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16
February 12, 2008, Filed
SUBSEQUENT HISTORY: Released for Publication April 3, 2008
PRIOR HISTORY: [***1]
Third District, Silver Summit. The Honorable Bruce C. Lubeck. No. 040500322.
COUNSEL: Fred R. Silvester, Spencer C. Siebers, Salt Lake City, for plaintiff.
Phillip S. Ferguson, Karra J. Porter, Ruth A. Shapiro, Salt Lake City, for defendants.
JUDGES: PARRISH, Justice. Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish’s opinion.
OPINION BY: PARRISH
OPINION
[**762] PARRISH, Justice:
INTRODUCTION
[*P1] In 2003, James Pearce suffered a back injury while riding a bobsled at the Utah Winter Sports Park in Park City, Utah. Pearce brought ordinary negligence and gross negligence claims against the Utah Athletic Foundation (“UAF”), which owns and operates the bobsled track. The district court granted summary judgment to UAF on the ordinary negligence claim because Pearce, prior to riding the bobsled, had signed a liability waiver in which he released any negligence claim against UAF. The district court also granted summary judgment to UAF on the gross negligence claim, holding that Pearce had not presented sufficient evidence to show that UAF’s conduct rose to the level of gross negligence. Pearce appeals both holdings. We affirm the district court’s grant of summary judgment on [***2] the ordinary negligence claim but reverse the district court’s grant of summary judgment on the gross negligence claim.
FACTUAL BACKGROUND
[*P2] UAF oversees the Olympic legacy venues used during the 2002 Winter Olympics, including the Utah Winter Sports Park (“Sports Park”) in Park City, Utah. The Sports Park includes a bobsled track, which is owned and operated by UAF. The bobsled track, which was built by the state of Utah for the 2002 Olympics, was completed in 1996, and ownership and operations were [**763] then transferred to the Salt Lake Organizing Committee (“SLOC”). In 1997, the track was opened to the public through the Public Ride Program (“PRP”). UAF took over the ownership and operation of the bobsled track following the 2002 Olympics and continues to offer the PRP. Besides the Park City track, only two other bobsled tracks are located in North America: one in Lake Placid, New York, and the other in Calgary, Alberta, Canada. The Lake Placid and Calgary tracks also operate a PRP.
[*P3] To be qualified and approved for Olympic use, a bobsled track has to be designed to specific international standards. One design criterion limits the amount of time that a bobsled athlete can be subjected to [***3] more than five Gs. The Federation Internationale de Bobsleigh et de Tobogganing (“FIBT”) is the international organization which ensures that a bobsled track’s design and construction meet the criteria. The FIBT conducts various measurements and tests to ensure that the standards are met. The Park City bobsled track met the FIBT standards and was used in the 2002 Winter Olympics. When UAF took over ownership and operation of the track following the Olympics, it did not do any testing independent of the testing conducted by the FIBT and the other entities involved with the construction, design, engineering, and certification of the track.
[*P4] The bobsleds used in the PRP are configured for a driver and three passengers. UAF employs professional, World Cup-level bobsled drivers for its PRP. The PRP sleds are modified from competition sleds. One modification is that the PRP sleds allow the driver to control the braking; in competition sleds, the fourth-seat rider controls the braking. Another modification is that the PRP sleds have handles for the passengers to hold during the bobsled ride.
[*P5] On February 27, 2003, Pearce went with his son to the Sports Park to ride the bobsled. Pearce was fifty-nine [***4] years old at the time. Before riding the bobsled, Pearce signed a release of liability form. 1 According to Pearce, he was not told what the document was, nor was he told that by signing it he was releasing the Sports Park from liability for injuries caused by its own negligence. Pearce understood that it was a release but did not fully understand the extent of the release. Pearce and the other patrons were given an orientation lasting approximately fifteen minutes. During the orientation, the patrons were told that they would experience four Gs during the ride. Pearce, a mechanical engineer by trade, understood what a G was but did not fully understand the effect that four Gs could have on his body.
1 The critical part of the release in this case–the sentence in paragraph 3 that releases UAF from its own negligence–states in full:
TO THE FULLEST EXTENT PERMITTED BY LAW, I HEREBY RELEASE, WAIVE, COVENANT NOT TO SUE, AND DISCHARGE THE UAF AND ALL OF ITS TRUSTEES, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, VOLUNTEERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “RELEASEES”) FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, AND CAUSES OF ACTION WHATSOEVER ARISING OUT OF OR RELATED TO ANY [***5] LOSS, DAMAGE, OR INJURY, INCLUDING DEATH, THAT MAY BE SUSTAINED BY ME/MY MINOR CHILD OR LOSS OR DAMAGE TO ANY PROPERTY BELONGING TO ME/MY MINOR CHILD, WHETHER CAUSED BY THE NEGLIGENCE OF RELEASEES OR OTHERWISE, ARISING OUT OF OR RELATED TO MY/MY MINOR CHILD’S USE OF THE SPORTS FACILITIES OR PARTICIPATION IN THE SPORTS.
[*P6] The Sports Park managers knew that the g-forces were more pronounced for passengers in the fourth seat of the bobsled than for those in the other seats. Pearce, who was assigned to sit in the fourth seat, was instructed to sit back away from his son–who was seated in the third seat–and to lean forward and grab the handles installed in the modified sled. The Sports Park’s general manager testified that these instructions were given to fourth-seat riders to minimize their risk of injury, though he admitted that he did not know how such positioning minimized the risk. One of Pearce’s expert witnesses, Dr. Paul France, testified by affidavit that the Sports Park’s positioning actually increased the risk of spinal injury to fourth-seat riders. Dr. France opined that the risk of spinal injury could have been reduced by having fourth-seat riders sit more upright, push off [***6] the handles, and not flex the spine. [**764] During Pearce’s ride, the g-forces caused the L1 vertebrae of his spine to shatter, propelling a bone fragment toward his spinal column.
PROCEDURAL HISTORY
[*P7] Pearce brought suit against UAF in 2004. He originally claimed ordinary negligence but later amended his complaint to include gross negligence. During the course of the litigation, Pearce presented several allegations to support his negligence claims, including (1) the Sports Park did not obtain or review any of SLOC’s accident reports for the years of 1997 through 2002; (2) the Sports Park knew that the fourth seat exposed the rider to the greatest risk of injury but did not warn fourth-seat riders of the increased danger or undertake any measures to mitigate the risks of the fourth seat; (3) the Sports Park instructed fourth-seat riders to sit in a position that increased the risk of spinal injury; (4) the Sports Park failed to warn Pearce that three riders had suffered serious spinal injuries–including compression fractures–during the prior three months; (5) the Sports Park knew that riders had suffered back injuries but never attempted to find out how these back injuries were being caused [***7] or what could be done to minimize the risk of back injury; (6) the Sports Park never measured the g-forces on the fourth rider and never did any evaluation of the effect of the g-forces on public riders; (7) Sports Park management reviewed injury reports only at the end of the season and were therefore unaware of the reported spinal injuries contained in the injury reports; and (8) the Sports Park did not conduct any of its own testing to determine the inherent dangers of the ride and how to minimize those dangers.
[*P8] Following some discovery, UAF moved for summary judgment. UAF argued that the liability release protected it from any action for ordinary negligence and that, in view of the undisputed facts of the case, its conduct did not rise to the level of gross negligence. After briefing and oral argument on the motion, the district court issued its ruling and order.
[*P9] The district court first ruled in favor of UAF on the gross negligence claim, stating that “the court does not believe plaintiff has set forth sufficient evidence of gross negligence” and that “[t]here is no credible evidence of gross negligence as a matter of law.” The court held that the Sports Park’s conduct would, [***8] at most, amount to ordinary negligence.
[*P10] The court then ruled that Pearce had waived any ordinary negligence claim by signing the liability release. The court held that the release was valid, enforceable, and not against public policy. Thus, the court ultimately granted UAF’s motion for summary judgment on Pearce’s ordinary negligence claim because he had assumed the risks of the bobsled ride, including any negligent conduct of the Sports Park.
[*P11] Pearce now appeals the district court’s grant of summary judgment on both negligence claims. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).
ISSUES AND STANDARD OF REVIEW
[*P12] There are two issues on appeal in this case: (1) whether the district court correctly held that the release of liability signed by Pearce barred his ordinary negligence claim against UAF, and (2) whether the district court correctly granted summary judgment to UAF on Pearce’s gross negligence claim.
[*P13] [HN1] “‘[S]ummary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.'” Swan Creek Vill. Homeowners Ass’n v. Warne, 2006 UT 22, P 16, 134 P.3d 1122 (quoting Norman v. Arnold, 2002 UT 81, P 15, 57 P.3d 997). [***9] A district court’s decision to grant summary judgment is reviewed for correctness, with no deference afforded to the district court. Crestwood Cove Apts. Bus. Trust v. Turner, 2007 UT 48, P 10, 164 P.3d 1247. “When we review a district court’s grant of summary judgment, ‘we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.'” Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, P 2, 167 P.3d 1011 [**765] (quoting Carrier v. Salt Lake County, 2004 UT 98, P 3, 104 P.3d 1208).
ANALYSIS
I. ORDINARY NEGLIGENCE
[*P14] In two recent cases, we reaffirmed our position with the majority of states that [HN2] people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others. See Rothstein v. Snowbird Corp., 2007 UT 96, P 6, 175 P.3d 560; Berry v. Greater Park City Co., 2007 UT 87, P 15, 171 P.3d 442 (“[Utah’s] public policy does not foreclose the opportunity of parties to bargain for the waiver of tort claims based on ordinary negligence.”). We also reaffirmed our position that preinjury releases are not unlimited in power and can be invalidated in certain circumstances. Three such limitations are relevant to this [***10] case: (1) releases that offend public policy are unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560; (2) releases for activities that fit within the public interest exception are unenforceable, Berry, 2007 UT 87, P 16, 171 P.3d 442; and (3) releases that are unclear or ambiguous are unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560. We now analyze each of these limitations and conclude that none is applicable here; therefore, the preinjury release is valid and enforceable.
A. The Preinjury Release Is Not Contrary to Public Policy
[*P15] We have long held that preinjury releases must be compatible with public policy. See Rothstein v. Snowbird Corp., 2007 UT 96, P 7, 175 P.3d 560 (citing Pugmire v. Or. Short Line R.R., 33 Utah 27, 92 P. 762 (Utah 1907)). In Hawkins v. Peart, we relied on public policy gleaned from Utah law in holding that a preinjury release signed by a parent is not enforceable against a minor child. 2001 UT 94, PP 10-13, 37 P.3d 1062. In Rothstein, we relied on the legislature’s statement of public policy in Utah’s Inherent Risks of Skiing Act to conclude that a ski resort cannot enforce a preinjury release against a skier whose injuries may have resulted from the negligence of the ski resort. 2007 UT 96, P 20, 175 P.3d 560. In [***11] the present case, however, Pearce has not presented, nor has this court found, a public policy that would render unenforceable a preinjury release between a public bobsled ride operator and an adult bobsled rider. Thus, we conclude that the preinjury release signed by Pearce is not contrary to public policy.
B. The Preinjury Release Is Not Invalid Under the Public Interest Exception
[*P16] [HN3] It is a “general principle of common law that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty.” Berry v. Greater Park City Co., 2007 UT 87, P 12, 171 P.3d 442 (internal quotation marks and citations omitted). Thus, a preinjury release that does not violate public policy is valid and enforceable unless it meets the public interest exception. Id. (stating that a preinjury release may be invalidated if it “attempts to limit liability for activities in which there is a strong public interest”).
[*P17] In Berry, we adopted the standard set out in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963), [HN4] as “the traits of an activity in which an exculpatory provision may be invalid” [***12] under the public interest exception. Berry, 2007 UT 87, P 15, 171 P.3d 442. The six Tunkl guidelines are:
“[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [**766] [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk [***13] of carelessness by the seller or his agents.”
Id. (quoting Hawkins v. Peart, 2001 UT 94, P 9 n.3, 37 P.3d 1062).
[*P18] In Berry, we applied the six Tunkl guidelines to a skiercross race and determined that skiercross racing did not meet the public interest exception. Id. PP 17-24. In the present case, we could again apply the guidelines in order to conclude that bobsledding does not meet the public interest exception, but we go one step further. [HN5] We now join other states in declaring, as a general rule, that recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.
[*P19] In California, where the Tunkl test was formulated, appellate courts have applied the Tunkl factors to a wide variety of recreational activities and have consistently concluded that such activities do not fit within the public interest exception. See, e.g., Randas v. YMCA of Metro. Los Angeles, 17 Cal. App. 4th 158, 21 Cal. Rptr. 2d 245, 247 (Ct. App. 1993) (swimming); Guido v. Koopman, 1 Cal. App. 4th 837, 2 Cal. Rptr. 2d 437, 439-40 (Ct. App. 1991) (horseback riding); Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal. Rptr. 299, 305-06 (Ct. App. 1988) (scuba [***14] diving); Kurashige v. Indian Dunes, Inc., 200 Cal. App. 3d 606, 246 Cal. Rptr. 310, 313 (Ct. App. 1988) (dirt bike racing); Okura v. U.S. Cycling Fed’n, 231 Cal. Rptr. 429, 430-32, 186 Cal. App. 3d 1462 (Ct. App. 1986) (bicycle racing); Hulsey v. Elsinore Parachute Ctr., 168 Cal. App. 3d 333, 214 Cal. Rptr. 194, 199-200 (Ct. App. 1985) (parachute jumping). When faced with public interest challenges to preinjury releases for recreational activities, California appellate courts no longer need to go through a Tunkl analysis; instead, the courts rely on the general rule–established through years of applying the Tunkl test–that “[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” Benedek v. PLC Santa Monica, LLC, 104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197, 202 (Ct. App. 2002); see also Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr. 2d 781, 791 (Ct. App. 1993) (“[R]ecreational sports do not constitute a public interest under Tunkl.“).
[*P20] California courts are not alone in refusing to invalidate preinjury releases in recreational activities under the public interest exception. Courts across the country that have applied the public interest exception to preinjury releases, whether under [***15] the Tunkl factors or under some other test, have consistently held that recreational activities do not implicate public interest concerns and, therefore, that preinjury releases for recreational activities are not invalid under the public interest exception. See, e.g., Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (distinguishing “businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public” from businesses that implicate the public interest under the Tunkl factors); Seigneur v. Nat’l Fitness Inst., Inc., 132 Md. App. 271, 752 A.2d 631, 641 (Md. Ct. Spec. App. 2000) (“[C]ourts from other jurisdictions almost universally have held that contracts relating to recreational activities do not fall within any of the categories that implicate public interest concerns.”); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 925-26 (Minn. 1982) (“Courts from other jurisdictions generally have held contracts relating to recreational activities do not fall within any of the categories where the public interest is involved.”); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730, 733 (Tenn. Ct. App. 2005) [***16] (“[M]any jurisdictions have recognized that . . . recreational sporting activities are not activities of an essential nature which would render exculpatory clauses contrary to the public interest.”); Milligan v. Big Valley Corp., 754 P.2d 1063, 1066 (Wyo. 1988) (“[C]ontracts relating to recreational activities do not fall within any of the categories [**767] . . . where the public interest is involved.”).
[*P21] We now join the majority of courts by adopting the rule that preinjury releases for recreational activities are not invalid under the public interest exception. Thus, we conclude that the preinjury release in this case is not invalid under the public interest exception because bobsledding is a recreational activity.
C. The Preinjury Release Is Not Ambiguous
[*P22] [HN6] Preinjury releases, to be enforceable, must be “communicated in a clear and unequivocal manner.” Berry v. Greater Park City Co., 2007 UT 87, P 15 n.2, 171 P.3d 442; see also Hawkins v. Peart, 2001 UT 94, P 5, 37 P.3d 1062 (stating that preinjury releases “require a clear and unequivocal expression of the intent to indemnify or release”).
To be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to [***17] combine the elegance of a trust indenture with the brevity of a stop sign. . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.
Nat’l & Int’l Bhd. of St. Racers, Inc. v. Superior Court, 264 Cal. Rptr. 44, 47, 215 Cal. App. 3d 934 (Ct. App. 1989).
[*P23] Pearce argues that the liability waiver is invalid as ambiguous because the 111-word sentence in paragraph 3 does not clearly and unequivocally inform riders that they are releasing UAF of any injury caused by UAF’s ordinary negligence. We disagree. Although the sentence at issue is long and contains some “legalese,” it is not unclear or equivocal. See Freund v. Utah Power & Light Co., 793 P.2d 362, 371 (Utah 1990) (holding that a 97-word sentence in a commercial indemnification agreement clearly and unequivocally showed that the licensee agreed to indemnify the licensor from liability that could arise from the licensor’s negligence, even though the word “negligence” was not included in the sentence). The sentence conceivably could have been written more concisely or plainly, but that does not render it unclear or ambiguous. The sentence, in clear and unequivocal [***18] language, releases UAF from any claim “whether caused by the negligence of [UAF] or otherwise.” Although not perfect, the release is sufficiently clear. Thus, we affirm the district court’s conclusion that the preinjury release is valid and enforceable because it is not unclear, equivocal, or ambiguous.
II. GROSS NEGLIGENCE
[*P24] [HN7] Gross negligence is “the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Berry v. Greater Park City Co., 2007 UT 87, P 26, 171 P.3d 442 (internal quotation marks and citations omitted). “Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.” Id. Summary judgment in negligence cases, including gross negligence cases, is “inappropriate unless the applicable standard of care is fixed by law, and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.” Id. P 27 (internal quotation marks and citations omitted). When reviewing grants of summary judgment in negligence cases, “we have consistently followed the principle that summary judgment [***19] is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” Id. (internal quotation marks and citations omitted).
[*P25] In Berry, a competitive skier brought a gross negligence claim against a ski resort for negligently designing and constructing a skiercross course. Id. PP 6-7. The district court granted the ski resort’s motion for summary judgment on the gross negligence claim because the plaintiff had “failed to present evidence sufficient to place in dispute the issue of whether [the ski resort] had designed and built the skiercross course with . . . gross negligence.” Id. P 7. We concluded that the district court improperly granted summary judgment because the standard of care for designing and constructing skiercross courses was not “fixed by law,” [**768] and [HN8] “where a standard of care is not ‘fixed by law,’ the determination of the appropriate standard is a factual issue to be resolved by the finder of fact.” Id. P 30 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989)). Without the applicable standard of care, it was impossible for the district court to determine the degree to which the ski resort’s conduct [***20] deviated from the standard of care–“the core test in any claim of gross negligence.” Id. Thus, we held that a district court cannot properly grant a motion for summary judgment regarding a gross negligence claim unless there is “an identified, applicable standard of care to ground the analysis.” Id.
[*P26] The present case is very similar to Berry. Pearce brought a gross negligence claim against UAF, and the district court granted summary judgment for UAF because Pearce had not “set forth sufficient evidence of gross negligence.” However, there is no standard of care fixed by law regarding the operation of public bobsled rides upon which the district court could have based its analysis of gross negligence. 2 Indeed, the district court itself noted that the expert witnesses in the case “[did] not opine on the standard of care in such an industry.” Without an identified, applicable standard of care, it was error for the district court to rule on summary judgment that, as a matter of law, Pearce could not show gross negligence. We therefore hold that the district court improperly granted summary judgment to UAF on Pearce’s gross negligence claim, and we therefore reverse and remand to the district [***21] court.
2 In his brief, Pearce stated that a standard of care has been established by Utah law: “the care required of amusement ride operators is the care that reasonably prudent persons would exercise under the circumstances . . . commensurate with the dangers and risks created by the ride.” Lamb v. B & B Amusements Corp., 869 P.2d 926, 931 (Utah 1994). Besides the question of whether the bobsled ride is an “amusement ride,” the problem with this standard is that it simply states the normal “reasonably prudent person” standard that applies in any negligence case; it does not state more specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride. See Restatement (Second) of Torts § 285, cmt. d (stating that the reasonable person standard “is, without more, incapable of application to the facts of a particular case”). In order to determine what a reasonable bobsled ride operator would do, the finder of fact would likely need to hear testimony from expert witnesses before it could determine the operator’s deviation from the standard. See Berry, 2007 UT 87, P 30, 171 P.3d 442.
CONCLUSION
[*P27] We hold that Pearce’s ordinary negligence claim [***22] is barred by the preinjury release that he signed because the release is not against public policy, it does not meet the public interest exception, and it is clear, unequivocal, and unambiguous. Thus, we affirm the district court’s grant of summary judgment to UAF on Pearce’s ordinary negligence claim.
[*P28] We reach the opposite conclusion, however, with respect to Pearce’s gross negligence claim. We hold that the district court erred in granting summary judgment to UAF on Pearce’s gross negligence claim without identifying the applicable standard of care. We therefore reverse and remand to the district court for proceedings consistent with this opinion.
[*P29] Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish’s opinion.
Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.
Posted: October 18, 2010 Filed under: Release (pre-injury contract not to sue), Utah | Tags: bob sled, Olympic, Utah Winter Sports Park, UWSP Leave a commentThe decision states that under Utah law gross negligence must always be decided by the trier of fact.
The plaintiff in this case was injured while riding as a passenger on a four man bobsled at the Utah Winter Sports Park (UWSP). The bobsled ride caused the plaintiff’s vertebrae “to shatter, propelling a bone fragment toward his spinal column” from the g-force. The plaintiff sued for negligence and gross negligence. The UWSP raised the defense of release. The trial court granted the defendant’s motion for summary judgment for both simple or ordinary negligence and gross negligence.
The plaintiff in making his allegations listed ways the UWSP failed to take care of its riders:
1. The Sports Park did not obtain or review any of SLOC’s (Salt Lake Organizing Committee the parent of the UWSP) accident reports for the years of 1997 through 2002;
2. The Sports Park knew that the fourth seat exposed the rider to the greatest risk of injury but did not warn fourth-seat riders of the increased danger or undertake any measures to mitigate the risks of the fourth seat;
3. The Sports Park instructed fourth-seat riders to sit in a position that increased the risk of spinal injury;
4. The Sports Park failed to warn Pearce that three riders had suffered serious spinal injuries–including compression fractures–during the prior three months;
5. The Sports Park knew that riders had suffered back injuries but never attempted to find out how these back injuries were being caused or what could be done to minimize the risk of back injury;
6. The Sports Park never measured the g-forces on the fourth rider and never did any evaluation of the effect of the g-forces on public riders;
7. Sports Park management reviewed injury reports only at the end of the season and were therefore unaware of the reported spinal injuries contained in the injury reports; and
8. The Sports Park did not conduct any of its own testing to determine the inherent dangers of the ride and how to minimize those dangers.
Although individually most of the eight allegations raise concerns individually the allegations do not rise to the level of negligence. However, together they show a pattern of not caring about its patrons or how they suffered their injuries, which might prove gross negligence.
The court set forth the three ways under Utah’s law that a release would not be upheld by the courts.
(1) releases that offend public policy are unenforceable;
(2) releases for activities that fit within the public interest exception are unenforceable;
(3) releases that are unclear or ambiguous are unenforceable,
Under Utah’s law, “offend public policy” means there is a law or policy of the state that would prevent the use of a release. Here the court ruled that the release for a bobsled run were not against public policy.
Public service means providing a service or a necessity to the public such that without the service or necessity a person would not be able to live. The easiest way to understand this is to understand the types of services or necessities in the category. Usually utilities such as gas, electric or phone service are defined as public services. They are items that are needed in this day and age to live.
The court, after the analysis of the above public policy and public service arguments, made the pronouncement that as a general rule “recreational activity do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.”
That is a great legal statement that can be relied upon by all recreational programs and businesses in the state of Utah for the future.
Ambiguity under Utah’s law requires that the release be “communicated in a clear and unequivocal manner.” A release is not ambiguous if it is a “clear and unequivocal expression of the intent to indemnify or release.”
Utah’s courts have found areas where releases are not enforceable. Releases cannot be used to stop a claim by a minor. Releases can also not be used to stop claims by a skier from claims based on the negligence of the ski area.
In Hawkins v. Peart, we relied on public policy gleaned from Utah law in holding that a preinjury release signed by a parent is not enforceable against a minor child. In Rothstein v. Snowbird Corp, we relied on the legislature’s statement of public policy in Utah’s Inherent Risks of Skiing Act to conclude that a ski resort cannot enforce a preinjury release against a skier whose injuries may have resulted from the negligence of the ski resort.
The Rothstein case is interesting because the public policy exception was carved out of the language of the statute that was created to provide protection against lawsuit in the ski industry.
The court in this decision, then defined gross negligence under Utah law.
Gross negligence is “the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” “Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”
Unless the standard of care is fixed by law, based on this definition, a claim of gross negligence cannot be dismissed by a motion for summary judgment. Meaning, claims of gross negligence must be decided by the trier of fact. The trier of fact is normally the jury, and if there is no jury, the judge.
So?
Gross negligence is rarely dismissed by a motion for summary judgment. Unless the facts in front of the judge are void of any issue lending any argument to gross negligence, most courts are going to allow a gross negligence claim to continue.
In Utah, the chances of having a gross negligence claim dismissed are even higher, unless there is a law, all ready in force or a decision by a court that specifically defines gross negligence and the facts of the case do not rise to the legal level.
Here the eight allegations raised against the UWSP could possibly lead to a claim of gross negligence and the totality of the eight may support a claim for gross negligence.
If you have injuries, you need to determine, if possible what caused those injuries. If you don’t know what causes the injuries, or you cannot determine what causes injuries you need to inform your guests of those specific issues. The best way to do that would be in a release. In the release list, the risks, you cannot control as one of the specific issues or risks the signor of the release will assume.
Another red flag set forth in the facts of this case is telling people to do something as a safety measure and not having any idea why you are doing it. Worse, the plaintiff’s expert said that the safety measure actually increased the chance of injury in this case.
Except for the exceptions under Utah’s law already carved out by the courts, a release for recreational activities can be used to stop a claim for ordinary or simple negligence. Overall a good decision for Utah and not outside of the general framework of release law in the United States.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
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The Wilderness Medical Society Wilderness & Environmental Medicine Journal Vol 21 No 2 2010 Selected Table of Contents
Posted: October 15, 2010 Filed under: First Aid Leave a commentIf you are not a member of the Wilderness Medical Society, and you are in the field of Outdoor Recreation you should be.
- Editorial: In Tribute to Charlie Houston
- Editorial: Search and Rescue Activity on Denali, 1990 to 2008
- Editorial: Sidecountry Rescue—Who Should Respond to Ski Resort Out-of-Bounds Rescues?
- Original Research: Search and Rescue Activity on Denali, 1990 – 2008
- Original Research: End-Tidal Partial Pressure of Carbon Dioxide and Acute Mountain Sickness in the First 24 Hours Upon Ascent to Cusco Peru (3326 meters)
- Original Research: Large Snake Size Suggests Increased Snakebite Severity in Patients Bitten by Rattlesnakes in Southern California
- Case Report: Frostbite in a Sherpa
- Brief Report: Detection and Management of Hypothermia at a Large Outdoor Endurance Event in the United Kingdom
- Review Article: Wilderness Medical Society Consensus Guidelines for the Prevention and Treatment of Acute Altitude Illness
- Original Research: Adverse Encounters With Alligators in the United States: An Update
- The Wilderness Instructor: Advanced Wilderness Life Support Education Using High-Technology Patient Simulation
The article Wilderness Medical Society Consensus Guidelines for the Prevention and Treatment of Acute Altitude Illness is very important to anyone working in any alpine environment. A new program, possibly a standard of care, has been developed, and you should know about it.
The same goes if you are an instructor in the wilderness medicine field and the article Advanced Wilderness Life Support Education Using High-Technology Patient Simulation.
For information on why a membership to the Wilderness Medical Society is a great idea go here. To subscribe go to the Wilderness Medical Society go here.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Sky Diving Release defeats claim by Naval Academy student
Posted: October 11, 2010 Filed under: Maryland, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Evidence, faculty advisor, Federal Rules of Civil Procedure, Gross negligence, jumpmaster, MARYLAND, Naval Acdemy, Parachuting club, Release, Rules of Civil Procedure, sky diving, Waiver 1 CommentBoucher v. Riner, et al. 68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391
Boucher v. Riner is a case that examines three issues under Maryland law that are important and to understand an appellate rule of civil procedure in one case. Those issues are: (1) the liability of a third party contractor to a military participant, (2) the validity of releases under Maryland law, and (3) how Maryland law defines Gross Negligence. The release in question also had a bargain component that allowed the signor to opt out of the release for the payment of additional fees. Finally, the appellate civil procedure rules are explained as to why appellate courts do not review issues not previously argued at the trial court level.
The Bargain component of releases is rarely seen now days. However, you can find it referenced in a few current cases. At one time, some states required the opportunity for a signor of a release to be able to bargain or pay more for the option of not signing a release. The normal trip was $100 and to do the trip without a release was $125.00. The $25 difference was not ever opted by enough people to justify the increased risk or cost to the company and their insurance company and has gradually fallen out of favor.
The plaintiff in this case was a student at the US Naval Academy. He signed up to become a member of the Naval Academy Parachuting Club (the Club), a voluntary extracurricular club at the Academy. The club was administered by upperclassman and had a faculty advisor. The plaintiff was trained by upperclassman in how to skydive. The club had a contractual relationship with Parachutes Are Fun, Inc. (Parachutes) a co-defendant in the suit. The club paid a reduced fee and used Parachutes facility and jumpmaster for skydiving. The club used its own equipment and training for club members.
On the day of the accident, the plaintiff jumped with two upper classmen, and a Parachutes jump master. A Parachutes employee was on the ground with a loud speaker directing skydivers as they neared the ground. The employee noticed the plaintiff was going to come close to some electrical lines but decided not to tell the plaintiff. The plaintiff hit the electrical lines suffering injury.
Prior to his jump, the plaintiff had signed a release. The release clause that is quoted in the case is the negligence clause and uses the word negligence. The release covers the defendant Parachutes and “its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees.”
The plaintiff filed a two count complaint alleging:
(1) Negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and
(2) Gross negligence on the part of the appellees in the performance of their duties.
The defendants filed a motion for summary judgment at the trial court level that was granted. The plaintiff then appealed the decision arguing three issues on appeal.
I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?
II. Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence?
III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor?
Under Maryland law, like the majority of states, a release does not protect a defendant from a claim of gross negligence. Gross negligence is defined by the Maryland Courts as conduct “of an extraordinary or outrageous character.” Another definition is looks at the care given to the plaintiff by the defendant: “which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Alternatively, defined as “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.”
Here the acts of Parachutes employee did not rise to the definition of gross negligence. The court reviewed the actions of the employee and determined that the employee:
[W]as attentive to Boucher’s descent, that he was stationed in the proper location, and that he was calling out instructions to Boucher as was expected of him. There was no showing of indifference on the part of Dunker. Rather, the conduct alleged here reflects, at worst, poor judgment on the part of Dunker that, while perhaps amounting to ordinary negligence….
We see no evidence of a premeditated decision, deliberately arrived at, by an indifferent jumpmaster that should have indicated almost certain harm to others.
The second issue the court reviewed was whether the release was valid under Maryland law. Maryland has six factors that may invalidate a release.
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
The court found that the defendants had not performed any of the six criteria that would invalidate the release. Parachutes was not performing a service important or a necessity to the public. The legislature of Maryland had not identified skydiving as important to control. Parachutes had no bargaining advantage, and the plaintiff was not under the control of Parachutes. Moreover, the plaintiff was under no requirement to jump.
The third issue was whether the individual defendant, the employee of the defendant Parachutes, who was directing the plaintiff from the ground was an employee covered under the release or an independent contractor who the plaintiff claimed would not be covered under the release. The court did not look at all issues because the court found the issue had not been argued at the lower court.
Appellate courts have always ruled that they will only review those issues that have already been reviewed at the court below. No new issues can be argued at the appellate court. All information and legal arguments must be brought up, at some point at the trial court level. Failing to do this, a party waives an issue if they do not raise it at the trial court level. For many, this seems like the court is just avoiding the issues but there are valid legal and common sense reasons for this policy, which this court enumerates.
The policy requires that the attorneys fully prepare for trial. If not, trails and appeals would go on forever because every case would be appealed and new evidence would be introduced at each appeal. Having this requirement limits the amount of appeals and forces everyone to be ready from the start. At one time, all important issues are litigated, and the jury has 100% of the information to make a fair and informed decision.
More importantly, because an appellate court cannot hear new evidence, the court would be making a judgment on issues that may not be fully explained or the court has not fully understood.
This brings up a litigation point, the references to the Rules of Civil Procedure. There are several sets of rules that an attorney must follow when litigating a case. These rules are created by the Supreme Court of each state and then modified occasionally by the court by edict and or by court decision. The Rules of Evidence control what the jury can see and hear so that the jury only hears the best evidence, and evidence does not prejudice the jury or one party. The Rules of Civil Procedure are the rules that dictate how you get to trial and appeal cases. Most of the rules define the time when things must occur or filed. However, there are several civil rules that dictate what your pleadings must contain, what size type and how those documents are conveyed to the court and the other parties in a case.
The case is a good case to read in understanding Maryland law, which is consistent with most other cases. Identifying the six areas where releases may not be valid is a major help to someone looking to a release to protect them from lawsuits.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Boucher v. Riner, et al. 68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391
Posted: October 10, 2010 Filed under: Maryland, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Gross negligence, Hang gliding, Parachuting, Paragliding, Release, Skydiving, Skydiving Club, US Naval Academy, Waiver Leave a commentFor an Analysis of the case see: Sky Diving Release defeats claim by Naval Academy student
Daniel M. Boucher v. Gordon E. Riner, et al.
No. 1470, September Term, 1985
Court of Special Appeals of Maryland
68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391
September 8, 1986
Prior History: [***1] Appeal from the Circuit Court for Caroline County, George B. Rasin, Jr., Judge.
Disposition: Judgment Affirmed; Costs to be Paid by the Appellant.
Counsel: Argued by David R. Thompson (Kurt D. Karsten and Franch, Earnest & Cowdrey, P.A. on the brief), Easton for appellant.
Argued by W. Michael Jacobs (Charles E. Iliff, Jr. and Semmes, Bowen & Semmes on the brief), Baltimore for appellees.
Judges: Weant, Karwacki and Wenner, JJ.
Opinion By: Karwacki
OPINION
[*540] [**486] Daniel M. Boucher, the appellant, wishing to learn how to parachute, joined the Naval Academy Parachuting Club (the Club) in September 1982. The Club is a voluntary extracurricular activity for students at the Naval Academy. The Academy, where Boucher was a midshipman, provided equipment, paid various fees, and made arrangements for the use of a drop zone for the club members. Although the Club was organized and operated by upperclass midshipmen, it had a faculty advisor, and the Club members were accompanied on field trips by naval officers.
The Club had an agreement with Parachutes Are Fun, Inc. (Parachutes), for the use of Parachutes’ drop zone as a training ground for Club members. That agreement provided that the [***2] Club would provide its own equipment and be able to use the drop zone at a reduced rate. Parachutes agreed to conform to all regulations as specified by the Academy.
Prior to Boucher’s first parachute jump, he received instructions in sport parachuting at the Academy from [*541] Midshipmen Byrne and Lastar, who were among the upper-classmen who ran the Club. The two were qualified by the U.S. Parachute Association (USPA), a civilian organization engaged in the promotion and self-regulation of the sport. Boucher’s training consisted of instruction in the hazards normally associated with parachuting, including the hazard posed by jumping in the vicinity of uninsulated electric power lines. Attention was given to the methods which should be employed by the parachutist to avoid or minimize contact with obstacles on the ground by controlling the direction of descent.
The appellees, in addition to Parachutes, are: the Pelicanland Corporation (Pelicanland), the owner of the airport where the drop area was located; Gordon E. Riner, the co-owner and vice-president of Parachutes, who is a certified jumpmaster, instructor, and parachutist; and Kenneth Dunker, a certified jumpmaster, [***3] instructor, and parachutist who worked at Parachutes.
On September 18, 1982, Boucher along with other midshipmen went to Pelicanland to make his first jump. Prior to Boucher’s boarding the airplane that day, he signed an exculpatory agreement with Parachutes, the relevant portion of which stated:
2 A. EXEMPTION FROM LIABILITY
The Participant exempts and releases the Corporation, its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees from any and all liability, claims, demands or [**487] actions or causes of action whatsoever arising out of any damage, loss or injury to the Participant or the Participant’s property while upon the premises or aircraft of the Corporation or while participating in any of the activities contemplated by this Agreement, whether such loss, damage, or injury results from the negligence of the Corporation, its officers, agents, servants, employees or lessors or from some other cause.
[*542] At about 5:30 p.m., a decision was made that wind conditions were such that the jump could be made. Boucher went up in the plane with two other midshipmen and with Riner, [***4] who was there to act as coach and jumpmaster. Dunker was on the ground, near the target area, and was manning the public address system to “talk down” the jumpers. Boucher was the last of the three to jump. After Boucher’s parachute opened, Dunker began calling out his instructions, telling Boucher to change from a “running” position where his back was to the wind, to a “holding” position, facing the wind. As Boucher neared the ground, Dunker instructed him to execute a 360o turn. At this point, Dunker realized that there was a danger that Boucher would fly right into nearby power lines. He gave no indication of that danger to Boucher, who continued his descent with his back to the lines. Seconds later, Boucher collided with the lines, sending 12,500 volts of electricity through his body.
Boucher filed a two count declaration against the appellees alleging (1) negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and (2) gross negligence on the part of the appellees in the performance of their duties. The appellees jointly moved for summary judgments. On July 24, 1985, [***5] following a hearing, the Circuit Court for Caroline County (Rasin, J.), in a well reasoned memorandum opinion, granted the appellees’ motion. Boucher, in his appeal from those judgments, presents the broad question of “whether the trial court improperly granted summary judgment to the defendants?”
Specifically, he raises the following issues:
I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?
II. Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence?
[*543] III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor?
Preliminarily, since the hearing court resolved this controversy in favor of the appellees by summary judgment, we will review the evidence, including all permissible inferences therefrom, in the light most favorable to the appellant. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62, 485 A.2d 663 (1984); Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-18, 382 A.2d 555 (1978).
Summary judgment should be granted only upon a showing that there [***6] is no genuine issue as to any material fact. Fireman’s Fund Ins. Co. v. Rairigh, 59 Md.App. 305, 313, 475 A.2d 509, cert. denied, 301 Md. 176, 482 A.2d 502 (1984). If there is a conflict between the inferences which may be drawn from the evidence before the court, summary judgment is not proper. Coffey v. Derby Steel Co., 291 Md. 241, 246-47, 434 A.2d 564 (1981). Our review of all of the evidence in the light most favorable to the appellant convinces us that the hearing court was correct in finding, that there was no genuine dispute as to any material fact and that the appellees were entitled to judgments as a matter of law.
I.
Boucher contends that the appellees were guilty of gross negligence and that even if the exculpatory clause is held to be valid it does not shield the appellees from liability for gross negligence. As to the latter part of Boucher’s assertion—that the [**488] appellees are not shielded from liability for gross negligence—he is correct. A waiver of a right to sue, such as the one executed between Boucher and Parachutes, is ineffective to shift the risk of a party’s own willful, wanton, reckless, or gross conduct. Winterstein v. [***7] Wilcom, 16 Md.App. 130, 134-36, 293 A.2d 821, cert. denied, 266 Md. 744 (1972). Dean Prosser explains such a result on the alternative bases of common experience as to what is intended by the contracting parties or of public [*544] policy to discourage aggravated wrongs. Prosser and Keeton, The Law of Torts § 68 (5th ed. 1984).
Returning to the first part of Boucher’s contention—that the appellees were guilty of gross negligence—we find ourselves in agreement with the hearing court that Boucher fails in his reliance on essentially three facts to raise an inference of gross negligence. Boucher alleges that the appellee Dunker was on the ground giving instructions to Boucher as he was descending; that Boucher was unaware of the electric lines prior to colliding with them because, as Dunker had instructed, his back was to the lines; and that Dunker did not warn Boucher of the presence of the power lines. Boucher argues that an inference of gross negligence can be drawn from the above circumstances because Dunker was “controlling” Boucher’s movements and thus guided Boucher into the electric lines.
Gross negligence has been examined in a number of Maryland cases [***8] dealing with a variety of issues. These cases have addressed issues which include the circumstances under which gross negligence can support an award of exemplary damages, 1 civil liability for injuries to trespassers, 2 and criminal liability for manslaughter by automobile. 3 Our appellate courts have also dealt with the issue of gross negligence in the context of the type of conduct that would support an inference sufficient to overcome the bar of an [*545] automobile guest statute, 4 contributory negligence, 5 and, as in this case, a pre-injury release. 6
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
1. Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972); Bannon v. B. & O. R.R. Co., 24 Md. 108 (1866).
2. Murphy v. Baltimore Gas & Elec., 290 Md. 186, 428 A.2d 459 (1981); Mondshour v. Moore, 261 A.2d 482, 256 Md. 617 (1970); Mech v. Hearst Corp., 64 Md.App. 422, 496 A.2d 1099 (1985), cert. denied, 305 Md. 175 501 A.2d 1323 (1986); Medina v. Meilhammer, 62 Md.App. 239, 489 A.2d 35, cert. denied, 303 Md. 683, 496 A.2d 683 (1985).
3. Johnson v. State, 213 Md. 527, 132 A.2d 853 (1957). [***9]
4. Romanesk v. Rose, 248 Md. 420, 237 A.2d 12 (1968).
5. Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985).
6. Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 831, cert. denied, 266 Md. 744 (1972).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
In Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972), the Court of Appeals addressed the issue of gross negligence in the context of punitive damages. In that case, a boy was killed after he was struck by a truck owned by the defendant concrete company and driven by an inexperienced 18 year-old. In an action seeking compensatory and exemplary damages, the executor of the decedent’s estate sued Gray Concrete for negligent entrustment of the vehicle and the driver for negligent operation of the truck. The complaint stated that the corporate defendant had entrusted the truck to the driver knowing that the truck’s hood was improperly secured and that it could pop open at any time, that the driver was only 18 when the law required its drivers to be over 21 years of age, that the driver had no chauffeur’s license, and that the driver was [***10] untrained, unqualified, and incompetent to drive the truck on the highway. Id. at 169, 297 A.2d 721. The count against the driver alleged that he did not check the condition of the truck prior to operating it on the highway, that he did not respond properly when the hood flew up and blocked his vision—he stopped his truck in the center lane of the highway rather than pulling it off to the side—and that he knew or should have [**489] known that the truck was in violation of many requirements of the law. Id. at 170-71, 297 A.2d 721.
The Court concluded that punitive damages were recoverable in actions arising out of motor vehicle torts where there was a “’wanton or reckless disregard for human life’ in the operation of a motor vehicle, with all the known dangers and risks attendant to such conduct.” Id. at 168, 297 A.2d 721. The Court stated that the standard contemplated conduct which was of an “extraordinary or outrageous [*546] character,” but which stopped short of “wilful or intentional injury.” Id.
In Smith, the Court held that punitive damages were not recoverable against the driver of the truck because his conduct, “although constituting [***11] sufficient negligence to support a claim for compensatory damages, does not mount up to ‘a wanton or reckless disregard for human life.’” Id. at 171, 297 A.2d 721. In other words, although the driver may have exercised extremely poor judgment in his operation of the truck, his conduct was not of an extraordinary or outrageous character so as to constitute gross negligence.
On the other hand, the corporate defendant was found to be subject to possible exemplary damages. The conduct of Gray Concrete “did not occur under the pressures of a highway crisis, where what might superficially appear to be caused by ‘extraordinary or outrageous conduct’ could be merely the result of poor judgment exercised under such circumstances.” Id. at 172, 297 A.2d 721. The Court noted that Gray’s conduct reflected a premeditated decision by an employer in possession of facts which should have indicated almost certain harm to others. Id.
In another instructive case, Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985), the Court of Appeals had to determine whether there had been a showing of legally sufficient evidence of gross negligence to defeat the defendants’ motions [***12] for summary judgment. Liscombe involved the driver of a dump truck who was injured when the raised bed of his truck came into contact with high voltage lines that passed over the site. The driver alleged that the gross negligence of both the power company and the occupier of the premises led to his being injured. Id. The Court quoted from Bannon v. B. & O. R.R. Co., 24 Md. 108, 124 (1866), where it was said: “Gross negligence is a technical term, it is the omission of that care ‘which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Id., 303 Md. at 634-35, 495 A.2d 838. The Court then noted its decision in Romanesk v. Rose, 248 Md. 420, 237 A.2d 12 (1968) [*547] (applying Virginia law), in which it quoted with approval the definition of gross negligence from 4 Blashfield, Cyclopedia of Automobile Law and Practice § 2771 (1946 ed.) as:
an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. [***13] Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.
Id. at 423, 237 A.2d 12.
In concluding that the evidence of gross negligence before the hearing court was insufficient, the Court assumed without deciding that the “lesser standard” of Smith v. Gray Concrete Pipe Co., supra, was the appropriate test for determining whether legally sufficient evidence of gross negligence by either defendant had been shown. The Liscombe Court noted the defendants’ efforts to minimize exposure to the danger, that there was no evidence of indifference by the defendants to the safety of others, and that there was no indication to either that almost certain harm to others would result from the defendants’ action or their failure to act. The Court stated that, [**490] “[t]here was, in short, no showing of facts establishing extraordinary or outrageous conduct mounting up to a wanton or reckless disregard for human life on the part of either defendant.” Id.
We rely on the guidance of Liscombe [***14] and Smith in deciding whether the conduct of the appellee Dunker in this case amounted to gross negligence. In Smith, the Court of Appeals noted that “the conduct alleged here reflects a premeditated decision, deliberately arrived at, by an indifferent employer in possession of facts which should have indicated almost certain harm to others.” 267 Md. at 172, 297 A.2d 721. In the case sub judice, viewing all of the evidence in the light most favorable to the appellant, we [*548] cannot say that Dunker’s conduct amounted to a wanton or reckless disregard for Boucher’s life. The undisputed material facts of this case show that Dunker was attentive to Boucher’s descent, that he was stationed in the proper location, and that he was calling out instructions to Boucher as was expected of him. There was no showing of indifference on the part of Dunker. Rather, the conduct alleged here reflects, at worst, poor judgment on the part of Dunker that, while perhaps amounting to ordinary negligence, does not rise to the level of gross negligence. We see no evidence of a premeditated decision, deliberately arrived at, by an indifferent jumpmaster that should have indicated almost [***15] certain harm to others.
II.
The appellant next argues that the exculpatory agreement which he signed shortly before his jump is unenforceable. 7 We disagree.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -7.
Whether this issue is even preserved for our review is questionable since it was not explicitly raised below. On the assumption that it was implicitly preserved for our review, however, we will address the issue.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
The Maryland law regarding exculpatory clauses can be stated quite succinctly. In the absence of legislation to the contrary, there is ordinarily no public policy which prevents the parties from contracting as they see fit. Winterstein v. Wilcom, 16 Md.App. at 135, 293 A.2d 821. “It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.” Id., quoting Prosser, The Law of Torts § 67 (3d ed. 1964). There are, of course, exceptions to the general [***16] rule, and the appellant would have us here find either of two exceptions applicable. The first is that such an agreement will be invalid if the relationship of the parties is such that one [*549] party is at an obvious disadvantage in bargaining at the time the contract is entered so that the effect of the contract is to put him at the mercy of the other’s negligence. Winterstein, 16 Md.App. at 135-36, 293 A.2d 821. The second exception invalidates exculpatory agreements if they are part of a transaction affected with a public interest. Id. at 136-37, 293 A.2d 821. We will examine the exculpatory agreement sub judice, in light of the evidence before the hearing court to determine the applicability of either exception.
Boucher joined the Club of his own volition sometime prior to September 18, 1982. His participation in the Club was not required by the Academy. Further, Boucher was not compelled by Parachutes to agree to the waiver of his right to sue. Had Boucher so wished, he could have chosen the option provided by Parachutes under Paragraph 2B 8 of the Agreement to pay an additional fee of $ 300 to nullify the [**491] waiver of paragraph 2A. Boucher [***17] chose not to pay the additional fee thereby waiving his right to sue in the event of an accident involving the negligence of the defendants.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
8. 2B ALTERNATIVE PROVISION:
In consideration of the deletion of the provisions, 2A, 3, 4 and 6 herein regarding EXEMPTION FROM LIABILITY COVENANT NOT TO SUE, INDEMNITY AGAINST THIRD PARTY CLAIMS, and CONTINUATION OF OBLIGATION the Participant has paid the additional sum of $ 300.00 upon execution of this agreement, receipt of which is hereby acknowledged by the Corporation.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
The case of Winterstein v. Wilcom, supra, involved an exculpatory contract with language similar to the instant Agreement. In Winterstein, the appellant had signed an exculpatory agreement in connection with his use of a drag strip operated by the defendant. The plaintiff was injured when his car struck an automobile cylinder head which had not been cleared from the track prior to the plaintiff’s use of the drag strip. Winterstein, 16 Md.App. at 133, 293 A.2d 821 . This Court held that [***18] the exculpatory agreement [*550] was not void as against public policy. We noted there that there was “not the slightest disadvantage in bargaining power between the parties.” Id. at 138, 293 A.2d 821.
We stated that the plaintiff “was under no compulsion, economic or otherwise, to race his car. He obviously participated . . . simply because he wanted to do so . . . . This put him in no bargaining disadvantage.” Id. We make a similar determination in the instant case. Boucher was under no compulsion to make a parachute jump, and he did so merely because he wanted to do so. He was not at a bargaining disadvantage.
This Court in Winterstein identified six factors to be considered in determining whether a transaction is so affected by public interest as to invalidate exculpatory provisions. Quoting from a decision by the Supreme Court of California, sitting en banc, we stated:
[T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of [***19] great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser [*551] is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
Winterstein, 16 Md.App. at 137, 293 A.2d 821.
Clearly, the transaction in which the appellant engaged on September 18, 1982, exhibited none of these characteristics. Parachutes is not performing a service of [***20] great importance or a matter of practical necessity for any member of the public. The Legislature has not thought sport parachuting suitable for public regulation. As the service is not of an essential nature, Parachutes had no decisive advantage of bargaining strength against any member of the public seeking to participate. Boucher was not “under the control” of Parachutes or its employees in such a way that he was subject to the risk of carelessness by Parachutes—Boucher had received training in obstacle avoidance. Finally, Boucher was under no obligation to make the jump. Cf. Winterstein, 16 Md.App. at 138, 293 A.2d 821. We therefore hold that the exculpatory clause signed by Boucher was not void as against public policy.
III.
Lastly, the appellant argues that summary judgment should not have been granted because “[t]here exists a genuine issue of [**492] fact as to whether defendant Dunker’s status at Parachutes Are Fun, Inc. was that of servant or independent contractor.” The short answer is that the appellant has not preserved this issue for our review. Rule 1085. In the summary judgment proceedings before the hearing court, the appellant did not attempt [***21] to contradict any of the affidavits, admissions, deposition excerpts, or any evidence presented by the appellees in support of their summary judgment motion.
Furthermore, the appellant did not argue at the hearing on the motion that Dunker was an independent contractor. By failing to make this argument before the hearing judge, the appellant did not show that court, with some precision, a genuine and material dispute. [*552] Sherman v. Am. Bankers Life Assur., 264 Md. 239, 242, 285 A.2d 652 (1972).
The appellant himself conceded in his brief to this Court that the only time that the status of the appellee Dunker was raised by the appellant, up to and including the summary judgment hearing, was in the complaint he filed in the Circuit Court. In paragraph six of the complaint, the appellant alleged:
Defendant Kenneth Dunker, on September 18, 1982, acted as an agent of both Parachutes Are Fun, Inc., and Pelicanland Corporation. He also acted independently in his capacity as a licensed parachute jump master. (Emphasis supplied).
To us, the above quoted paragraph appears to be an acknowledgement that the appellant recognized Dunker as an agent of Parachutes [***22] and of Pelicanland. Given that the exculpatory clause released from liability “the Corporation, its owners, officers, agents, servants, employees, and lessors . ..” (emphasis added), the appellant’s argument, without more, does not appear to have any merit. Surely the phrase “[h]e also acted independently,” read in the context of the rest of paragraph six of the appellant’s complaint, cannot be taken to mean that the appellant asserts that Dunker was an independent contractor. But therein lies the danger behind an appellate court attempting to review an issue that was not passed upon by the court below. In order to prevent such a situation, this Court ordinarily will not decide a question that has not been raised and decided by the lower court. Rule 1085; Washington Homes v. Baggett, 23 Md.App. 167, 326 A.2d 206 (1974), cert. denied, 273 Md. 723 (1975). The requirements of Rule 1085 are matters of basic fairness to the hearing court, and to opposing counsel, as well as being fundamental to the proper administration of justice. Medley v. State, 52 Md.App. 225, 448 A.2d 363 , [***23] cert. denied, 294 Md. 544 (1982).
JUDGMENT AFFIRMED; COSTS TO BE PAID BY THE APPELLANT.
If you are out of shape, you face greater risk skiing…….
Posted: October 5, 2010 Filed under: First Aid, Skiing / Snow Boarding Leave a commentA study out of Stockholm Sweden found that out of shape skiers faced a greater risk of heart attacks. Being out of shape combined with the altitude, and the cold weather increased the risks of medical problems.
Previous studies showed that 40% of all deaths on ski slopes were heart attacks. The study did find some interesting facts.
- 39% of the heart attacks occurred on the first day of skiing.
- 56% of the heart attacks occurred in the first two days of skiing.
- 50% of the heart attacks occurred within the first hour of activity.
- The average time of suffering the first effects was within two hours of hitting the slopes.
- 50% of the people who suffered heart attacks had not done the recommended level of training before skiing. Patients who suffered heart attacks lived at an average elevation of 557 feet and suffered their attacks at an elevation of 4,429 feet.
The report recommended that skiers train by undertaking two hours of exercise each day before heading to the slopes.
One commentator described the exercise, elevation and cold as the perfect storm for heart attacks.
The article suggested that people going to high altitude to ski should:
- Increase physical activity gradually.
- If you’re going to a high-altitude resort, wait a day before hitting the slopes or engaging in other strenuous activities.
- If it’s a very high altitude resort, ask your doctor about strategies for acclimatization.
- Dress warmly, in layers.
See Physically Unprepared Skiers Face Heart Risk
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
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Criminal charges for rafting problems.
Posted: October 5, 2010 Filed under: Criminal Liability, Whitewater Rafting Leave a commentAngry and Upset customers from some trips lead to an investigation which resulted in charges from other trips.
Patrick Cunningham, the owner of Hudson River Rafting Co and an employee Heath Bromley were charged with second-degree misdemeanor reckless endangerment for allegedly endangering rafters and a kayaker this summer.
The specific allegations leading to the charges are sending customers out without a licensed guide and deceiving customers about the need for licensed guides.
The allegation of sending a customer out without a licensed guide stems from having a customer paddle an inflatable kayak. Pretty hard to stick a guide in most inflatable kayaks……
The second charge was based on a trip that went out with a guide.
However, the article is full complaints and problems the company had this summer.
The investigation came after three people were injured this year on Hudson River Rafting Co. rafting trips, Curry said, and at least one group that included children was stranded on the Hudson River and had to hike several miles out of the woods to find help.
That stranding occurred when the rafters did not time the water release correctly, and wound up stuck in low water conditions, officials said.
….
Cunningham was charged for an Aug. 12 incident in which he allegedly failed to provide a guide and sent a man down the river in an inflatable kayak despite the fact the man told him he did not have any experience rafting or kayaking, Ovitt wrote in court records.
Cunningham, though, said the man “insisted” on trying to get through difficult rapids on his own despite his lack of experience. He was unable to make it through mid-level “Class 3” rapids, Cunningham said.
If every allegation is true and if this is worst raft company in the history of mankind, why are there criminal charges in this case? Just yank the permits so the 32 year old company can no longer operate. No one was hurt. What is the criminal part of this that warrants the filing of criminal charges?
I believe the relevant statute is:
ARTICLE 11. FISH AND WILDLIFE
TITLE 5. FISH AND WILDLIFE MANAGEMENT PRACTICES COOPERATIVE PROGRAM; PROHIBITIONS; TAKING OF FISH, WILDLIFE, SHELLFISH AND CRUSTACEA FOR SCIENTIFIC OR PROPAGATION PURPOSES; DESTRUCTIVE WILDLIFE; RABIES CONTROL; GUIDES; ENDANGERED SPECIES
Go to the New York Code Archive Directory
NY CLS ECL § 11-0533 (2010)
§ 11-0533. Licensing of guides
1. As used in this section, the term “guide” shall mean a person who offers services for hire part or all of which includes directing, instructing, or aiding another in fishing, hunting, camping, hiking, white water canoeing, rafting or rock and ice climbing.
2. All guides engaging in the business of guiding on all lands and waters of the state shall possess a license issued by the department, except for any persons operating or assisting upon a public vessel for hire (passenger carrying vessels), licensed by the United States Coast Guard or New York state, upon the Atlantic Ocean and all other marine and coastal waters, tidal waters including the Hudson river up to the Troy barrier dam, St. Lawrence river, Great Lakes and the navigable portion of their tributaries, and other navigable waters, as determined by the department.
3. Except while guiding for the purposes of hunting and/or fishing, no license as defined in section 11-0701 is required for such acts.
4. Employees of children’s camps as defined in subdivision one of section one thousand four hundred of the public health law shall be exempt from the provisions of subdivisions one and two of this section, provided such activities are carried out within the scope of said employment.
5. A license as required under subdivision two of this section shall be issued for a period of five calendar years and the fee therefor shall be established by the department, not to exceed two hundred dollars.
6. Every licensed guide while engaged in guiding shall wear in plain sight identification furnished by the department. Licensed guides shall be at least eighteen years of age. They shall be skilled in the use of boats and canoes whenever use of these craft is required and shall be persons competent to guide one or more of the following: camping, hunting, fishing, hiking, white water canoeing/rafting, rock or ice climbing or other similar activities. The department shall by regulation establish standards and procedures for testing and licensing of guides.
7. Any licensed guide who violates any provision of this chapter or who makes any false statement in his application for a license shall in addition to any other penalties, immediately surrender his license to the department, which may be revoked by the department for up to one year following the date of such surrender.
8. The department shall publish a list of guides annually.
The statute does not define a guide as someone who guides on rafts or kayaks in its definition, in section 1. However, the statute requires knowledge about whitewater rafting and canoeing in section 6.
The lessons to be learned here are simple.
- Take care of all of your customers. Any angry customer may come back to haunt you.
- Know the laws affecting your business or operation.
- Be very wary when the district attorney is running for office and trying to get more time in the media.
See Rafting company owner charged with endangering customers
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Saffro v. Elite Racing, Inc., 98 Cal. App. 4th 173; 119 Cal. Rptr. 2d 497; 2002 Cal. App. LEXIS 4076; 2002 Cal. Daily Op. Service 3941; 2002 Daily Journal DAR 5009
Posted: September 27, 2010 Filed under: Assumption of the Risk, California, Legal Case, Racing | Tags: negligent supervision, Racing, running, San Diego, Suzuki Rock 'N' Roll Marathon Leave a commentRichard Saffro, Plaintiff and Appellant, v. Elite Racing, Inc., Defendant and Respondent.
No. D037591.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
98 Cal. App. 4th 173; 119 Cal. Rptr. 2d 497; 2002 Cal. App. LEXIS 4076; 2002 Cal. Daily Op. Service 3941; 2002 Daily Journal DAR 5009
May 7, 2002, Decided
NOTICE: [***1] CERTIFIED FOR PUBLICATION
SUBSEQUENT HISTORY: Rehearing Denied May 31, 2002.
Review Denied July 31, 2002, Reported at: 2002 Cal. LEXIS 5268.
PRIOR HISTORY: APPEAL from a judgment of the Superior Court of San Diego County. Super. Ct. No. 731713. Linda B. Quinn, Judge.
DISPOSITION: Reversed.
SUMMARY:
CALIFORNIA OFFICIAL REPORTS SUMMARY A marathon runner brought an action for negligence and negligent supervision against the organizers of a particular 26-mile race. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte replacement drinks during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner who testified that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendants wrote a letter to participants, in which they admitted that their provision of “race fundamentals” had been inadequate. The trial court granted defendant’s summary judgment on the ground that plaintiff’s action was barred by the doctrine of primary assumption of the risk. (Superior Court of San Diego County, No. 731713, Linda B. Quinn, Judge.)
A marathon runner brought an action for negligence and negligent supervision against the organizers of a particular 26-mile race. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte replacement drinks during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner who testified that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendants wrote a letter to participants, in which they admitted that their provision of “race fundamentals” had been inadequate. The trial court granted defendant’s summary judgment on the ground that plaintiff’s action was barred by the doctrine of primary assumption of the risk. (Superior Court of San Diego County, No. 731713, Linda B. Quinn, Judge.)
The Court of Appeal reversed. The court held that plaintiff’s action was not barred by the doctrine of primary assumption of the risk. The organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to minimize the risks without altering the nature of the sport, including the provision of sufficient water and electrolyte replacement drinks. The court further held that the circumstantial evidence presented by plaintiff created an issue of fact regarding causation. (Opinion by McIntyre, Acting P. J., with O’Rourke and McConnell, JJ., concurring.)
HEADNOTES
CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports
(1)Negligence § 122–Actions–Appeal–Scope of Review–Questions of Law–Assumption of Risk. –The issue of assumption of risk involves the existence and scope of a defendant’s duty of care, which is a legal question that depends on the nature of the activity involved and the parties’ relationship to that activity. An appellate court reviews de novo a trial court’s determination on the issue of assumption of risk, and all doubts as to the propriety of granting a motion for summary judgment must be resolved in favor of the party opposing the motion.
(2)Negligence § 37–Exercise of Care by Plaintiff–Primary and Secondary Assumption of Risk. –The doctrine of assumption of risk in negligence cases embodies two components: (1) primary assumption of risk–where the defendant owes no duty to the plaintiff to protect him or her from the particular risk, and (2) secondary assumption of risk–where the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters a risk created by the breach of that duty. Primary assumption of risk operates as a complete bar to a plaintiff’s negligence cause of action, while the doctrine of secondary assumption of risks is part of the comparative fault scheme, where the trier of fact considers the relative responsibility of the parties in apportioning the loss.
(3)Negligence § 37–Exercise of Care by Plaintiff–Primary Assumption of Risk–Sports Activities–Legal Duty of Defendant–Role in Sport. –Before concluding that a sports-related negligence case comes within the doctrine of primary assumption of risk, a court must not only examine the nature of the sport, but also the defendant’s role in, or relationship to, the sport. The scope of the legal duty owed by the defendant will frequently depend on this role or relationship. The risks inherent in the sport are defined not only by the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.
(4a)(4b)Negligence § 37.2–Exercise of Care by Plaintiff–Primary Assumption of Risk–Sports Activities–Legal Duty of Organizer of Marathon Race–Provision of Fluids to Runners. –The trial court erred in finding that an action for negligence and negligent supervision brought against the organizers of a particular 26-mile race by a marathon runner was barred by the doctrine of primary assumption of risk. Plaintiff suffered a grand mal seizure a few hours after he ran this race, which his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. His injuries caused plaintiff to suffer a neurological deficit; he retained only a vague recollection of the race itself. Consequently, he introduced deposition testimony of another runner that there was no electrolyte fluid available along the race route and no water available during a 45-minute delay in starting the race, despite defendant’s pre-race representations that adequate amounts of both would be made available to the runners. After the race, defendant wrote a letter to participants, in which it admitted that its provision of “race fundamentals” had been inadequate. The organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to minimize the risks without altering the nature of the sport. Further, the circumstantial evidence presented by plaintiff created an issue of fact regarding causation.
[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090C.]
(5)Negligence § 72–Actions–Burden of Proof–Proximate Causation–Shifting Burden to Defendant–When Negligence Renders Plaintiff Incapable of Proving Causation. –When there is a substantial probability that a defendant’s negligence was a cause of an injury and when this negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant to prove its negligence was not a cause of the injury. In these circumstances, as a matter of public policy, the burden is more appropriately borne by the party with greater access to information.
COUNSEL: Higgs, Fletcher & Mack and John Morris for Plaintiff and Appellant.
Royce, Grimm, Vranjes, McCormick & Graham and A. Carl Yaeckel for Defendant and Respondent.
JUDGES: Opinion by McIntyre, Acting P. J., with O’Rourke and McConnell, JJ., concurring.
OPINION BY: McINTYRE
OPINION
[*175] [**498] McINTYRE, Acting P. J.
In this case we conclude that [HN1] the organizer of a marathon has a duty to produce a reasonably safe event. This duty requires it to take reasonable steps to “minimize the risks without altering the nature of the sport”–which includes providing sufficient water and electrolyte replacement drinks as represented in the informational materials provided to the participants. (See Knight v. Jewett (1992) 3 Cal. 4th 296, 317 [11 Cal. Rptr. 2d 2, 834 P.2d 696].)
Richard Saffro appeals from [***2] a summary judgment entered against him on his complaint against Elite Racing, Inc. (Elite) for negligence and negligent [*176] supervision in connection with the 1998 “Suzuki Rock ‘N’ Roll Marathon” in San Diego. Saffro contends the judgment should be reversed because the trial court erred in (1) ruling his suit was barred by the doctrine of primary assumption of risk; (2) excluding the declarations of three race participants; and (3) denying his motion [**499] for reconsideration. We agree with Saffro’s first contention and find there are issues of material fact on the questions of breach of duty and causation. Thus, we reverse the judgment. This renders Saffro’s second and third contentions moot.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are derived from the evidence admitted by the trial court. On June 21, 1998, Saffro ran in the marathon organized and conducted by Elite. That same day, after completing the race, Saffro boarded a plane to return home to Chicago. Between 60 and 90 minutes into the flight, Saffro suffered a grand mal seizure, necessitating an emergency landing in St. Louis. He was hospitalized in St. Louis and diagnosed with severe hyponatremia–which [***3] occurs as a result of decreased sodium concentration in the blood, as well as pulmonary edema and cerebral edema resulting from the hyponatremia. Saffro’s condition was critical; he was kept on a ventilator for four days and hospitalized for a longer period. His injuries caused him to suffer neurological deficit; indeed, Saffro’s only memory of running the marathon was a “vague recollection of hearing some music, some bands . . . .” Saffro submitted the declarations of medical experts who opined that his hyponatremia was caused by the inability to consume adequate amounts of water and fluids containing electrolytes (such as Gatorade and Race Day) during the marathon.
Prior to the marathon, Elite sent written materials to the participants stating there would be 23 water and refreshment stations located throughout the course, from the 2-mile mark to the 25.1-mile mark. Elite represented that all stations would include water and 11 stations would also distribute Race Day, an electrolyte fluid. Saffro presented evidence that it is customary in the field and runners expect, on the basis of their entry fee, to be “support[ed] along the course” and provided with water and electrolyte [***4] fluids at regular intervals. In addition, he testified that in the other two marathons he had run, it was his practice to stop at every refreshment stand and drink the water and electrolyte fluids provided.
Elite also informed the runners in writing that the race would start at 7:00 a.m. and that it anticipated all runners would reach the starting line in less than five minutes. About 6:15 a.m. on the day of the marathon, Saffro drank 12 to 16 ounces of water and then was directed to his “corral” to await the [*177] scheduled 7:00 a.m. start of the race with other runners of similar ability. One thousand participants were assigned to each corral based on their projected race times, with the fastest runners stationed closest to the starting line. No one without an official marathon number was allowed to enter the corrals. The race did not start until about 7:45 a.m., however. During the delay, the cloud cover burned off and it became increasingly warm, yet the runners could not leave the corrals to get more water or other fluids. Several announcements were made during the delay that the race would begin in “only five or ten more minutes”–which was not the case.
According to [***5] Elite’s records, Saffro completed the marathon in 4 hours, 17 minutes and 32 seconds. Another runner, Kelley Magill, finished the race in approximately 4 hours and 45 minutes. Magill testified that at the first refreshment station at the 2-mile mark, “there was nothing. There were no volunteers, no cups, no water. Nothing.” At the next station, there was only a big trash can filled with water–no cups and no volunteers. Magill was hoping to get some water there, but “there were so many people crowded around [the [**500] trash can], pushing and yelling” that she kept on running. At the third refreshment station at the 4.1-mile mark–the first station at which Race Day was supposed to be available, there was a volunteer with a jug of water and some cups, but they had run out of Race Day. Water was set out in cups on tables at the 20 remaining stations, but there was no Race Day. Magill looked for and asked for Race Day at every refreshment station along the course, but was told each time that they had “run out of it.” She kept running in the race because she thought “there had to be some at the next [station].”
In a postrace letter to the participants regarding the marathon, [***6] Elite stated:
“[W]e know that in order to take our place as one of the world’s great marathons the ‘race fundamentals’–as well as the bells and whistles, must be superb.
“Despite our efforts, we know that too many aspects of the event were not perfect, and we take full responsibility for any and all of those imperfections. We promise to correct them all next year. The race will start on time . . . and you’ll be able to drown at our water stations.”
Saffro filed his original complaint against Elite for negligence and negligent supervision on June 16, 1999, and on April 3, 2000, he filed an amended complaint stating the same causes of action. Elite filed a motion for summary judgment on May 11, 2000, on the ground that Saffro’s causes of action were barred by the doctrine of primary assumption of risk. The trial [*178] court granted the motion, ruling that hyponatremia is an inherent risk of running a marathon and thus, Saffro’s claims were barred by the primary assumption of risk doctrine. The court also concluded “there is no evidence that plaintiff attempted to obtain the sport drinks or water during the race at any of the water and refreshment stations or that he was [***7] prohibited from doing so.”
DISCUSSION
(1) [HN2] The issue of assumption of risk involves the existence and scope of a defendant’s duty of care, which is a legal question that depends on the nature of the activity involved and the parties’ relationship to that activity. ( Knight v. Jewett, supra, 3 Cal. 4th at p. 313.) [HN3] We review de novo the trial court’s determination on the issue of assumption of risk, and all doubts as to the propriety of granting a motion for summary judgment must be resolved in favor of the party opposing the motion. ( Morgan v. Fuji Country USA, Inc. (1995) 34 Cal. App. 4th 127, 131 [40 Cal. Rptr. 2d 249]; see also Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal. 3d 171, 183 [203 Cal. Rptr. 626, 681 P.2d 893].)
(2) [HN4] The doctrine of assumption of risk in negligence cases embodies two components: (1) primary assumption of risk–where the defendant owes no duty to the plaintiff to protect him or her from the particular risk, and (2) secondary assumption of risk–where the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters a risk created by the breach of that duty. ( Knight v. Jewett, supra, 3 Cal. 4th at p. 308.) [***8] Primary assumption of risk operates as a complete bar to the plaintiff’s cause of action, while the doctrine of secondary assumption of risks is part of the comparative fault scheme, where the trier of fact considers the relative responsibility of the parties in apportioning the loss. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 132.)
[**501] (3) [HN5] Before concluding that a case comes within the doctrine of primary assumption of risk, a court must not only examine the nature of the sport, but also the ” ‘defendant’s role in, or relationship to, the sport.’ ” ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 133, quoting Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Indeed, the scope of the legal duty owed by the defendant will frequently depend on such role or relationship. ( Knight v. Jewett, supra, 3 Cal. 4th at pp. 317-318.) The Knight court noted that many courts, in analyzing the duty of the owner of a sports facility or ski resort, had defined “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the [***9] sponsoring business entity reasonably should be obligated to take in order to minimize the risks [*179] without altering the nature of the sport.” ( Id. at p. 317, italics added.) The court concluded “that in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.” ( Id. at p. 318.)
Following Knight, we held in Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at page 134, that despite the fact that being struck by an errant ball is an inherent risk in the sport of golf, the owner of a golf course owes a duty to golfers “to provide a reasonably safe golf course” which requires it ” ‘to minimize the risks without altering the nature of the sport. [Citations.]’ ” (Ibid., quoting Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) We noted that if the defendant were the golfer who had hit the errant ball, the plaintiff’s negligence action would be barred by the primary assumption of risk doctrine, but that the defendant owner of the golf course had an obligation to design [***10] a course that would minimize the risks that players would be hit by golf balls and affirmatively provide protection for players from being hit in the area of the course where the greatest danger existed. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134, citing Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Therefore, we concluded the case was one involving secondary assumption of risk and that the trial court erred in granting summary judgment based on the doctrine of primary assumption of risk. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at pp. 134-135.)
(4a) Similarly, here we hold [HN6] a race organizer that stages a marathon has a duty to organize and conduct a reasonably safe event, which requires it to “minimize the risks without altering the nature of the sport.” ( Knight v. Jewett, supra, 3 Cal. 4th at p. 317; Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134.) This duty includes the obligation to minimize the risks of dehydration and hyponatremia by providing adequate water and electrolyte fluids along the 26-mile course–particularly where the [***11] race organizer represents to the participants that these will be available at specific locations throughout the race. (See Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at p. 134; see also Knight v. Jewett, supra, 3 Cal. 4th at p. 317.) Such steps are reasonable and do not alter the nature of the sport. Accordingly, we hold this is a case involving secondary assumption of risk, and therefore, the trial court erred in ruling Saffro’s causes of action [**502] were barred by the doctrine of primary assumption of risk.
Moreover, we find that Saffro presented sufficient evidence to create an issue of fact as to whether Elite breached its duty to provide adequate water and fluids throughout the race. ( Morgan v. Fuji Country USA, Inc., supra, 34 Cal. App. 4th at pp. 134-135.) Magill, who finished the race within 30 [*180] minutes of Saffro, testified there was no water at the first station, only a trash can of water at the second station, and a jug of water at the third, and that Race Day was not available at any of the 23 stations. As Magill indicated in her deposition, when she was running the marathon, she did [***12] not know Race Day would not be available at any of the stations; rather, when she found she could not get Race Day at one station, she kept thinking it had to be available at the next. Moreover, Saffro suffered a grand mal seizure within hours of the race that his medical experts opined was the result of hyponatremia caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. Elite also alluded to problems in providing adequate “race fundamentals” in a letter to participants following the race, and stated “[next year] you’ll be able to drown at our water stations.”
In addition, to the extent the trial court’s statement, “there is no evidence that plaintiff attempted to obtain the sport drinks or water during the race at any of the water and refreshment stations,” suggests a failure of proof on the issue of causation, we disagree. Saffro testified that his practice in running marathons is to stop at all the refreshment stands and drink the water and electrolyte fluids provided, and there is an issue of fact as to whether Elite made these liquids adequately available to him and other runners of similar ability and speed. Saffro’s medical [***13] experts also declared his hyponatremia was caused by his inability to consume adequate amounts of water and electrolyte fluids during the marathon. Moreover, it strains reason to conclude that Saffro or any runner in a major marathon would not stop or attempt to stop, at all, for water and fluids that are represented to be available throughout the course. Thus, the circumstantial evidence presented creates an issue of fact regarding causation, even though Saffro is unable to remember the details in running the race. (See KOVR-TV, Inc. v. Superior Court (1995) 31 Cal. App. 4th 1023, 1027-1028 [37 Cal. Rptr. 2d 431].)
Further, given Saffro’s resulting neurological injuries which have impaired his memory, and the evidence of inadequate provision of water and electrolyte fluids, this may be a case in which the burden of proof regarding causation would be shifted to Elite as a matter of public policy. (See Haft v. Lone Palm Hotel (1970) 3 Cal. 3d 756, 762 [91 Cal. Rptr. 745, 478 P.2d 465].) In Haft, the decedents were found dead in the bottom of a hotel pool; no one had witnessed them drown, but the hotel owners had failed to comply with several [***14] safety regulations regarding pools. ( Id. at pp. 762-763.) (5) The court held that [HN7] where there is a substantial probability that the defendant’s negligence was a cause of the injury and when such negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant [*181] to prove its negligence was not a cause of the injury, i.e., in those circumstances, the burden was more appropriately borne by the party with greater access to information. ( Id. at p. 774, fn. 19.) (4b) We do not hold that the burden should be shifted in this case, only that the circumstances of [**503] this case raise this issue, and we leave this matter for the trial court to address, depending on what, if any, additional evidence is adduced.
Accordingly, because Saffro’s causes of action are not barred by the doctrine of primary assumption of risk, and there are issues of fact on the issues of negligence and causation, the trial court erred in entering summary judgment against him.
DISPOSITION
The judgment is reversed. Costs are awarded to Saffro.
O’Rourke, J., and McConnell, [***15] J., concurred.
A petition for a rehearing was denied May 31, 2002, and respondent’s petition for review by the Supreme Court was denied July 31, 2002. Brown, J., did not participate therein.
Rough way to deal with fatalities: Police Raid
Posted: September 23, 2010 Filed under: Criminal Liability Leave a commentYou may hate lawsuits, but I believe they are better than jail time.
A Japanese tour organizer had eight tourists die on a mountain climb last year. To investigate what happened, he was raided by the Japanese police to look into possible charges of negligence.
Negligence in Japan is a criminal act. Here it is a civil lawsuit. A criminal act means you pay a fine to the government and/or go to jail. A civil suit, if you lose means you pay money to the injured parties or their heirs.
The deceased, all in their 60’s died of hypothermia. The negligence charges stem from the fact that they were found at different locations on the mountain.
See Authorities raid tour agent in mountain deaths.
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© 2010 James H. Moss
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Who You Gonna’ Call, Ghostbusters?
Posted: September 22, 2010 Filed under: Risk Management | Tags: planning, Risk Management, risk management plan Leave a commentA real risk management plan.
For some of us, the worst part of any accident is after the bleeding has stopped or the victim is in the hospital. What happens next? Who should be contacted and how? Who should do the calling? Many times, insurance companies seemingly train us to play “Ostrich.” Stick our heads in the ground, hide and ignore what may be happening all around us. For example, take a look at the back of you your automobile insurance card. On most insurance cards, you are instructed to say nothing to anyone except the police.
For this industry, this may be the wrong advice. For most of you, this may sound heretical. However, to do something different will definitely strike fear in the hearts of insurance companies and defense attorneys. (Yeah, as if an insurance company has a heart to scare! [Just kidding guys!])
One of the big reasons most of us are in this business is because we like two things: the outdoors, and people. We develop great relationships with the people we introduce to the wilderness and help some of them to make changes in their lives. We are in the business watching our guests to see new vistas both inside and in front of them. To wreck that experience after an accident occurs is contrary to your goals and desires. It is also contrary to the basic decency and curtsey you were taught as a child. Why not take the parts of the experience you enjoy and the relationship you have created and build on it when disaster occurs.
Let’s look at some examples:
OSTRICH RISK MANAGEMENT PLAN
In this scenario, you are notified that a disaster has occurred. One person is dead and several people are badly hurt. You have everyone transported to where they can be treated. The injured are taken to the hospital; the deceased to the morgue; and everyone else safely to a hotel. Then you run home, turn out the lights, and hide under your bed. While you are hiding, this is what is occurring.
Hospital: Hello? Mrs. Smith? Mrs. Smith, this is Nurse Jane Fuzzywuzzy at Metropolitan Memorial Hospital. I need to know if your husband is allergic to any drugs or medications.
Mrs. Smith has been celebrating the fact her husband and breadwinner is gone for a week playing testosterone games. All of a sudden, out of nowhere, she is answering questions about her husband’s medical needs with no warning and without hearing any other information, such as how the accident occurred.
Hospital Pay Phone call to Jane Brown: Jane? Jane! Oh, Jane! It was terrible. It was a disaster! I don’t know what happened, but I think Bill is hurt bad. The hospital will not tell me anything. (Patient privacy laws remember?). I called you just as soon as I could….
Jane has been worried for a week. She just knew something was going to happen while Bill was gone. Then she gets a hysterical phone call from one of Bill’s friends from the hospital, and no one told her anything.
Sheriff’s Department (on voice mail): Ms. Jones, this is Deputy Dawg of the Monumental Screw Up County Sheriff’s department. I’m sorry to inform you that your husband, Jim or was it John, darn, I can’t read my own notes, anyway he was rock climbing with XYZ Rock Climbing company, you know those hippies down on the other side of town, they look funny, well they killed him today rock climbing. If you have any questions, you can just call back here and ask for me. Ok? Good-bye.
Ms. Jones was just told by the sheriff’s department that someone killed her husband. She is alone, lost and destroyed.
All three of these people, unexpectedly have had their lives turned upside down. Let’s look at what is running through their minds.
Questions! They all have questions. What happened? How did it happen? Are they going to be all right? How do I get to where they are to take care of them? How do I pay to get to where they are? How do I get his body home? Who is going to help me? How am I going to survive? Whom can I call for help? What am I going to do without him?
Now let look at some better scenarios.
Scene 1 and 2
At Your Office as Soon as you were notified of a Problem: Mrs. Smith, this is Bob Jones of ABC Company. Your husband was injured today while climbing with us. He is being transported to Metropolitan Memorial Hospital. I do not know his condition is at this time, but I am on my way to the hospital right now to check on him. As soon as I learn anything, I will call you back. Do you have something to write on, I want to give you my telephone numbers. The office 800 number here is 877-Don’t Die. If you call here and I’m not here, ask for Suzy. My cell phone number is 123-456-7890. My home telephone number is 102-345-6789. My name is Bob Jones. It will take me about 45 minutes to get to the hospital. As soon as I find out anything, I will call you right away.
At Hospital: Mrs. Smith, this is Bob Jones, I just was talking to your husband’s doctor, (or here is your husband’s doctor). Your husband is going to recover fully. He broke his arm while climbing. His Doctor’s name is Dr. Wacko, and his telephone number is 321-654-0987. The hospital is Local Memorial Hospital, and the telephone number is 231-465-0897. I am not sure what his room number is, but as soon as I find out, I will call you back. As soon as I can talk to your husband, I will also call you back. Is there anything else I can do for you at this time? I am going to stay here so call me if you have any more questions. Just call my cell phone number you still have that number correct? Great, I’ll call you in a bit. I’m glad your husband will be all right.
After Husband is in Hospital Room. Mrs. Smith, this is Bob Jones, here is your husband. Then hand the telephone to the husband.
After Mrs. Smith has talked to her husband. Mr. Smith, here is my home, cellular and office telephone numbers. Call me any time if you need anything. Is there anything I can get for you right now? Ok, I’ll stop back tomorrow morning and see how you are doing. The doctor said you are going to be discharged tomorrow. I will start to arrange to make sure you can get home, as soon as I get back to my office.
Next Day. Hello Mr. Smith, how are you today. I talked to your wife on the way over here. She said she would be here about noon and expects to take your home right after that. How are you feeling? Great. I brought you this ABC Company T-shirt, and I have a rain check here for you. When you arm heals up, we would like you to come back and finish your day of rock climbing. You have my telephone number, so if you need anything or have any questions give me a call. It was nice meeting you, and I am very sorry you were hurt, as we discussed before you went out on the trip, occasionally accidents do happen when climbing, but we sure are sorry it happened to you. I hope you come back and see us again.
Next Week. Hello Mr. Smith, how are you? This is Bob Jones from ABC Company. I just thought I would call and see how you are doing. Great, I am glad things are going fine. Still have my telephone numbers? Great. It has been nice talking to you take care of yourself. Give me a call when you are ready to go climbing again.
Some of you might argue this is setting you up for a lawsuit, but how? You have done nothing except be nice and courteous, (the way your mother would expect you to act). Worst-case scenario is you are sued. The worst-case scenario is the same either way. Even if everything you did was presented to a jury, what could be used against you? You acted as a kind and courteous businessperson. You did not admit liability, you reinforced the language in your release, and you helped an injured human being.
Scene 3
When a death occurs, you must do some research immediately. Contact any friends of the deceased who were on the trip when the accident occurred and learn as much as you can. Find out who you can call to go visit the deceased’s family. Call that person and have them go to the family’s house to be there. If those people are not available, or in addition to that person, call the person’s minister or priest if possible.
“Mrs. Jones, this is Bob Jones of ABC Company. Mrs. Jones, I am sorry to tell you that your husband was fatally injured today rock climbing. I am not sure what happened, as soon as we learn something I will call you and let you know. Mrs. Jones, is there anyone I can call for you, I have all ready called your priest and Mrs. Neighbor and asked them to come over to your house. Do you have something to write with, I want to give you my telephone numbers so you can contact me? The office 800 number here is 877 Did Die. If you call here and I am not here, ask for Suzy. My cell phone number is 123-456-7890. My home telephone number is 102-345-6789. My name is Bob Jones. As soon as I find out what happened, I will call you back and let you know. I will also call you back and talk to you when I find out what the authorities have done with your husband and how we can transport him back to you.”
The critical component in all three of these telephone calls is you. You are there to answer their questions. They have your telephone number to use to call a nice, friendly, helpful person to answer their questions. You are not creating hospital or bureaucratic nightmares. You are not allowing the system to create a disaster for you. You are attempting to ease their problems.
The call from the previous paragraph about the fatality is not going to be easy. In fact, people are going to be crying and screaming on the phone. However, it will pay off both for you and for the family. I know I have made those phone calls.
In a fatality, many counties require the Sheriff’s department or the corner to make the notification of the death. That is done usually by having the local law enforcement authorities stop by in person. Make sure you stay on top of the situation. In one case, it took twelve hours from the time of death to notify the family because of bureaucratic delays. The family did not need this. You should work with the authorities to notify the family in a timely and kind manner.
Many times, you will be confronted with angry or even hostile responses. Do not waiver; continue with the same calm helpful tone of voice. Do not bow down, hide, or become angry. Just continue to help. Some people when faced with these situations react in ways that might be difficult to deal with. In those situations, they will eventually calm down and thank you for your response. Becoming angry or hostile will just send them to an attorney quicker.
The other reason people hide from this duty is time. They believe they do not have the time to respond to these situations. Let’s look at this from a couple of different perspectives. If you lose your company, you will have plenty of time to do anything you want, stand in unemployment lines, stand in free food lines, or sit and feed pigeons in the park. In addition, the time you spend working with your injured clients may save you hundreds of hours later. If you are sued, think about how much time you will miss from your business for trials, depositions, working with your attorneys and everything else that is involved with defending a suit. Finally, consider it marketing time. If someone has been injured, they are going to tell everyone at work, school, church, and in their community. They can either put a good spin or a bad spin on how they were treated. One description of the facts can help your company immensely; the other can only hurt you. The opportunity is in your hands.
SEVEN IMPORTANT POINTS TO REMEMBER!
1. You should make the phone calls from your base of operation. Not from the field. The trip leaders have their hand full with the living, the bleeding, and the dead they do not have the time or energy to deal with calling people. (Why everyone carries client emergency contact information with them in the field is beyond me. Yet, every time I tell someone to leave it behind, they are aghast!). They are already emotionally, physically and mentally exhausted. They do not need any additional responsibilities. You have access to telephones, faxes, and the Internet. You are set up for communication. If you are running international treks, you are prepared to call overseas cheaply and easily. If you are US based, you can give the people a local number or an 800 number to call you back.
2. You are familiar with the travel business! This is a promise, I am making too you. If someone dies on your trip, the family will show up at the scene someday to see what happened. Ninety-nine percent of the time!, I had a Risk Management Seminar graduate call me to tell me that a family had come from Pakistan to the East Coast to see where their relative had died. They will come.
Knowing this, you can help them arrive and take care of them while they are on-site. You have relationships with the airlines that will allow you to get these people to your location quickly and easily. You can meet them at the airport and help them to a hotel. You know the hotel owners because you market to them every day. You know what the family of the injured or deceased does not know. If you have a guest who is going to spend several days or more in your local hospital, the family will come to the bedside of the injured person. Why not be prepared, help them get to where they need to be, stay and go home. It is better to know they are coming, then to be introduced, unexpectedly, in a hospital room. Eating alone in a strange city is intimidating. The chance to take someone out and provide them with a non-hospital kitchen meal will do wonders for them and your relationship. You can answer their questions; you can get to know them. You can become their friend. You can provide them with a source of information. You can show them you are a human being, not just a nameless face. A human being is hard to sue. A nameless face and a Company are easy to sue.
3. Who would you want to call if a member of your family was injured? Would you want a telephone call from the company your family member was with when they were injured or died? I believe you would. I also believe that everyone would. In every single deposition, I have attended or read at some point a family member says, “They didn’t even call me.”
People want some connection. People believe what their mother taught them more than what insurance companies want them to do. Our mothers taught us to make that telephone call.
4. The family members are going to have questions, and they will stop at nothing to have them answered. Here again, at every single trial, at every single deposition, at some time during every negotiation the attorney hears the comment “they would not even return my telephone calls to tell me what happened.”
You may not have the answers, but that still does not mean the questions are not going to be asked. If you do not answer the questions, the family will find someone to force you to answer them. That person will be an attorney. One of the great lines used by attorneys to clinch the sale is “I’ll get you your answers.” For most attorneys, that translates to we will use this excuse to get money out of the defendant. In addition, it works if the family member does not know how or why their loved one died. You understand what happens on the river or in the mountains. Those who stay at home have no idea what occurs, except what they see on television.
After a while, the desire to have those questions answered may go away, but the attorney can keep the desire alive or can roll that desire into the desire for money. One emotion, grief is converted to another emotion, greed. If they do not answer the question, they should pay. The desire for money never goes away.
I had this happen to me personally. I was in Salt Lake City years ago when the tornado hit that town. I ended up performing CPR on the one man who died. A month later, his widow called me. I did not have any answers for her, and she knew that. However, she wanted a connection with the last person to deal with her husband. I talked about what I did, what I thought, how it happened from my eyes. She was extremely grateful. Some call this closure; some might call it answering questions, whatever it is people wanted to know.
5. You can provide them with a central number to help with many of their problems. They can call you to get answers. They can call you to get personal property back. They can call you for transportation. They can call you to find the rest of their party. You, of all the people involved, are going to have the most answers.
I was working for a business when a guest was involved in an accident and became a quadriplegic. The mother in law of the injured guest called wanting to know where the guest’s watch was. It took time to find the medical report that stated the watch had been put inside the guest’s mitten, and then stuffed inside his coat pocket. I faxed that report to the mother in law. She called me back to say they had found the watch. She thanked me for my efforts, and she thanked the resort for their efforts on behalf of her son-in-law. People, who thank you for your help do not sue, and that family did not sue.
6. You are going to present the best front for your company. Not everyone else the family members deal with will present your business in a good light. Hospitals and the people who work there only see adventure activities as dangerous. They only see the injured people coming through the doors; they do not see the thousands of people having fun. The sheriff department and the state or federal land management agency just sees paperwork because people are injured. The only see numbers, whether 1 or 100 it is more work for them. Here again, they do not see the happy satisfied customers.
7. You DO NOT tell the family member you killed their loved one.
REMEMBER
A. Look up the emergency numbers your clients provided. Review the other information you have to see if it has any other information you may need to know. Have someone else determine the quickest way for the family to get to your location. Make the telephone call.
Tell them what happened to their loved one. Tell them where that person is and how to get there. Give them your name and telephone number so they can call you if they have any more questions. Tell them you will call them back the next day to check on them. Be prepared to tell them what happened, if you know. Provide facts, not guesses or opinions. If you were not there, you cannot guess or speculate. Ask them if they want to come to the hospital/scene. Tell them if they do not know you can help arrange for them. Do not speculate do not lie both will condemn you.
Many times, they will call you back after the initial shock wears off. They will call back to ask more questions. Be prepared for that. Again, ask them if they want to come. You need to know what they are going to do. You need to know if relatives are going to be out looking around at your business or the accident scene.
If they do want to come, pick up some of the tab if you can. “I’ve made arrangements for you to stay at the Bad Bed Motel. I can pick you up at the airport and take you to the hospital and then to the motel. What else can I do to help you?”
Think about the situation that person is in and what you would want to have done if you were in their shoes. What you would want to know, what questions would you have? If you cannot come up with anything, ask your spouse or mother. Mother’s are great at this.
Do they have the money to rent a car? Can you provide them with a car and driver? They may be lonely in a new town, have dinner with them or invite them over for dinner.
If you are dealing with a death, contact a mortician and find out what needs to occur. Become the intermediary to help. Tell the people you will go to the airport with the deceased to make sure things work smoothly. Call them from the airport and tell them the body is on the flight, and the flight left 20 minutes late (I fly out of Denver) and the expected time of arrival.
Keep in touch over time. After the second call on the second day, call the next day. Skip a day and call again. Call a week later. Continue to stay in touch. After six months tell them, you probably will not call again, unless they want you too. Tell them to call you any time, and if there is anything else, they need to let you know.
Your insurance company is afraid you are going to admit liability. If you are smart enough to subscribe to the law review, you will not say something stupid. Be honest, answer questions. Tell them the river, the weather, or Mother Nature acts in ways you cannot control, and you could not predict. Tell them you are sorry for their loss. Act the way your mother taught you, and you may not have to act the way your lawyer says you must.
Conclusion
You have a great opportunity to prevent litigation if you do not play ostrich. That telephone call will be tough. However, when you are done, you will feel better 90% of the time.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
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I find interesting releases on the web.
Posted: September 14, 2010 Filed under: Release (pre-injury contract not to sue) | Tags: releases, religion, waivers Leave a commentMost of them I find are mine and are stolen violating my copyright. However some of them are interesting, quite interesting!
I found a release for a religious summer camp. The release had the following lines it.
“I am aware of the risks…” Sure, but is your child?
“In the event of injury or a medical emergency, I understand that the church’s group leader, not Student Life and camp location, will be responsible for the medical care of all attendees.” This one I just do not understand, I think I might but I’m not guessing that much in writing.
However it is this line that caught my attention.
“To the extent the restriction on filing lawsuits is deemed unlawful, I agree to submit any Claims to a Christian conciliation/mediation organization for binding resolution.”
The US Constitution has been interpreted to place a barrier between church and state. There is a good reason for that. There should be a similar rule for law and the church.
To see the form click Waiver & Release.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Twitter: RecreationLaw
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New Florida law allows a parent to sign away a child’s right to sue for injuries.
Posted: September 13, 2010 Filed under: Release (pre-injury contract not to sue) Leave a commentHowever, the law only protects commercial activities, not non-profit activities or volunteers.
April 27, 2010 the governor of Florida signed into law a bill that overcame the effects of Kirton v. Fields, 997 So. 2d 349; 2008 Fla. LEXIS 2378; 33 Fla. L. Weekly S 939. Kirton held that a parent could not sign away a minor’s right to sue. See At least three bills are moving through Florida Legislature to allow a Parent to Sign away a Minor’s right to sue.
The new law allows commercial businesses to use a release or minors. If your release is written properly and contains the proper language, the release is valid against a claim by an injured or deceased minor if:
- You informed the parent or guardian of the inherent risks of the activity; or,
- The risk that injured the child was not inherent or was intentional.
The law Florida Statute § 744.301 (3) states:
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE
AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF (name of released party or parties ) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM (name of released party or parties ) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND (name of released party or parties) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.
3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.
(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.
So now what?
The law is great. However, you are going to need an attorney to write your release if you want your release to be valid. The statutory language is specific in the requirements, yet somewhat complicated.
You will have to make sure you have identified, in a way that you can prove, the risks of the activity the child is going to encounter. Either in writing or some other from that you can prove the parent saw.
Your release is going to have to be written containing the proper language to me the statute of Florida on releases in general and this statute, specifically.
You must be a commercial activity.
This last section is (3)(d) does not seem to apply to non-profit organizations. Whether it applies to volunteers of non-profits is also not clear. However, you can require arbitration, which has been upheld for minors in Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 or rely on Gonzalez v. City of Coral Gables, 871 So. 2d 1067; 2004 Fla. App. LEXIS 6612; 29 Fla. L. Weekly D 1147, which held a release was valid for a non-profit that was sponsored of a municipality.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
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Aspen Skiing Company Release stops claim by injured guest hit by an employee on snowmobile.
Posted: September 6, 2010 Filed under: Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Aspen, Aspen Skiing Company, Lawsuit, Litigation, Snowmobile Leave a commentRobinette v. Aspen Skiing Company, L.L.C., 2009 U.S. Dist. Lexis 34873 (Colo)
Colorado Release law dismisses claim for what could have been a nasty outcome.
The Plaintiff in this case Robinette was snowboarding and approaching an incline attempting to perform a jump. An Aspen Skiing Company employee was driving a snowmobile uphill on the other side of the incline. The guest and the snowmobile collided causing serious injuries to the guest.
The guest was skiing on a season pass purchased from Aspen Skiing Company. As with most ski resorts, the guest was required to sign a release as part of the season pass purchase.
The Plaintiff argued the defendant Aspen Skiing Company was negligent. The negligence was based on a violation of the Colorado Snowmobile Act, C.R.S. § 33-14-116. The specific statute states:
33-14-116. Other operating restrictions
(1) No person shall operate a snowmobile in a careless or imprudent manner without due regard for width, grade, corners, curves, or traffic of trails, the requirements of section 33-14-110 (3), nd all other attendant circumstances.
(2) No person shall operate a snowmobile in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property.
(3) No person shall operate a snowmobile while under the influence of alcohol, a controlled substance, as defined in section 12-22-303 (7), C.R.S., r any other drug, or any combination thereof, which renders him incapable of the safe operation of a snowmobile.
(4) No owner shall permit such snowmobile, while under his control, to be operated in violation of the provisions of this article.
(5) Any person who violates subsection (1) of this section is guilty of a class 2 petty offense and, upon conviction, shall be punished by a fine of one hundred dollars.
(6) Any person who violates subsection (2) or (3) of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.
(7) Any person who violates subsection (4) of this section is guilty of a class 2 petty offense and, upon conviction, shall be punished by a fine of fifty dollars.
The plaintiff argued that the statute creates a duty for snowmobile operators to operate in a safe manner. The plaintiff argued duty cannot be waived by a release by cause the duty is imposed by statute. The plaintiff also argued the release was ambiguous as to this type of accident.
The court outlined the four requirements for a release to be valid in the State of Colorado.
(i) There must not have been an obvious disparity in bargaining power between the releasor and releasee;
(ii) The agreement must set forth the parties’ intentions in clear and unambiguous language;
(iii) The circumstances and the nature of the service must indicate that the agreement was fairly entered into; and
(iv) The agreement may not violate public policy.
The burden of proving all of these elements is met is upon the party trying to enforce the release. In this case, it was the defendant Aspen Skiing Company. The court accepted Aspen’s arguments on the first and third steps and analyzed the second and fourth elements in its decision.
The first argument and analysis centered on whether the language in the release covered being hit by a snowmobile. This is an important analysis for everyone in the recreation industry. To name all the possible ways you can be injured would require a multi volume encyclopedia with a signature at the end. The court found the risk did not have to be identified in the release because it was identified in the Colorado Skier Safety Act C.R.S. § 33-44-108(3), which requires snowmobiles to have specific equipment on it to be operated at a resort. Because the statute looked at the risks of a skier being hit by a snowmobile, it was within the scope of the activity and the release.
The main argument that the defendant’s employee violated the Colorado Snowmobile statute creates an interesting argument. A release cannot void the obligations created by a state law, which is true. You cannot contract for something, which is illegal, and you cannot contract to do a crime, and you cannot contract away a statutory duty. The snowmobile licensing statute imposes a criminal penalty for anyone who violates it. However, the court found that the two could exist without a problem. The release attempts to prevent liability for a tort, and the statute imposes criminal liability for criminal acts. The release does not prohibit the state from imposing criminal liability on the driver of the snowmobile.
Aspen moved for Summary Judgment based on the release, and the court upheld the motion dismissing the plaintiff’s claims.
However, this decision might not have had the same outcome in many other states. Most states look at a statute that imposes criminal liability for an act or failure to act as something a release cannot protect. If the act was negligence per se, a violation of a statute, then most states do not allow a release to be used as a defense.
So?
The decision provides a good framework for understanding the steps necessary for a defendant to rely on one as a defense. Specifically, the analysis of who has the burden of proving the release is valid and whether or not the language of a release is clear. This also shows how other statutes can be used to assist in the defense of a lawsuit.
However, the public policy answer, step IV of the four parts necessary for a release to be valid in Colorado is contrary to the law in most other states.
This case can still be appealed; the District Court is just the first step, the trial court in the Federal court system. If this case is appealed and upheld at the appellate level, it will be a significant strengthening of the law of releases in Colorado.
This is also significant because guest collisions with snowmobiles have been costly to the ski industry.
|
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Another Way to Teach CPR
Posted: July 15, 2010 Filed under: First Aid 1 CommentWhen I was teaching knots to Scouts I used to use a Black Rat Snake. I made the knot, I just used the snake to explain the basics. Eleven year olds where 100% attentive and watched my hands while holding the snake.
This is a great way to teach CPR.
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First Aid has its Limits. By law!
Posted: July 13, 2010 Filed under: Criminal Liability, First Aid | Tags: criminal liability, first aid, protocols 2 CommentsHowever, you need to understand the law as well as first aid. Especially if what you are being taught is an illegal act.
A question posted on Facebook by a first aid training organization asked the question of its face book fans. The responses were all along the lines of a not been trained to perform the illegal act. Most of the answers were correct. However, what has me concerned is the issue that is an issue floating around in the wilderness first aid world.
The question asked about doing an illegal act. The question was, would you stitch a wound if you were in the wilderness? The vast majority of the answers was no. There were a few yes’s, most of them qualified.
There the correct answer is no it is an invasive act. Therefore, it is illegal for anyone other than a physician, or dependent upon the state, someone under a physician’s direct supervision and control. There seems to be a real issue on what someone can do in a first aid situation. Most people who received wilderness first aid training believe they can do anything if they have a doctor or physician advisor or who has taught them how to do it. There are many physicians who have the same belief.
(Remember this is a legal blog: no morals, no ethics just law.)
This blog is not the place to do a complete legal analysis of this issue. However, a short synopsis is appropriate. All first aid training divides the first aid provider into two groups: those who are licensed to provide first aid care and those who are not. A licensed first aid provider is an EMT, paramedic, nurse, nurse practitioner, physician assistant, or physician, etc. A person who has taken a test administered by the state and required by the state to take the test before practicing is a licensed health care provider. Non-licensed first aid providers are everyone else. The non licensed category includes Boy Scouts, wilderness first aiders, Wilderness First Responders, any person happening by the accident. Dependent upon the state where you are operating, a licensed first aid provider may be allowed to do invasive acts. No state allows a non-licensed first aid provider no matter what the training, to do any invasive act.
An invasive act is one where the first aid provider does anything more to an open wound other than clean and bandage the wound. It does not matter what they had been trained to do, or what they think they can do.
If it is a criminal act the person receiving the treatment, the injured person, cannot waive their right and allow the person to do it. It is still a criminal act the matter. The next legal issue is, no criminal act is protected any state Good Samaritan act.
I guess what I find disturbing is the idea that if the person has been trained to do this it would be okay for them to do it. That is not the case. You can be trained to perform heart surgery, but if you do not have a license to practice medicine it does not matter if you are the best heart surgeon in the world it is still a criminal act. If a physician will be standing in the room next to you and has agreed to abide by the state laws you may or may not be able to do something under that physician’s supervision and control. Supervision and control is defined differently in each state. In most states, it means the physician is in the same room where you are performing the procedure you have been trained in.
Does this mean that you get arrested if you do something like this? It totally depends on the outcome. If it’s a good outcome possibly not, if it’s a bad outcome possibly.
The issue is not my paranoia, the issue is the first aid training being received based on the egos of the instructors. And I’m not saying this to condemn any first aid instructor. I’ve met dozens and they are wonderful people. What I’m saying is we all love to impress people; we all love to stand in front of a group of people and tell them how to do things, to educate them. We want them to like us. This is one of the reasons why we teach. If that goes so far as to teach people that if they knew a little more they could do a little more that is where we cross the boundary. Sometimes it’s more than what you have been trained, sometimes it’s whether not you are teaching someone to violate the law.
So am I overly paranoid about that issue? Probably. Is my concern legally correct? Yes.
For more information about these issues see Legal Issues in Wilderness First Aid: Value of various first aid certificates and training, Legal Issues in Wilderness First Aid, and Legal Issues in First Aid #3: The prescription drug conundrum
See http://www.facebook.com/wildernessmedicine?ref=nf
What do you think? Leave a comment.
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YOU HAVE GOT TO BE KIDDING
Posted: June 29, 2010 Filed under: Criminal Liability, Whitewater Rafting 5 CommentsA raft guide was arrested the other day because he rescued a stranded girl.
A 13 year old girl was rafting with Arkansas Valley Adventures. She ended up stranded on a rock in the river. A raft guide from Arkansas Valley Adventures against the sheriff’s orders jumped into the river and rescued the girl.
The sheriff arrested the raft guide for obstructing government operations.
Let’s look at this without going nuts…….
Who has the most experience in whitewater?
1. The raft guide
2. Any raft guide
3. Alpine Search and Rescue
4. Clear Creek County Sheriff’s department
I’m pretty confident the correct answer is 1; however credit will be given for answer 2. I’ve done legal work for alpine Search and Rescue and know a lot of them. A great group of dedicated rescuers who do not have any whitewater experience.
Who is going to affect the rescue quickly and safely?
1. The raft guide
2. Any raft guide
3. Alpine Search and Rescue
4. Clear Creek County Sheriff’s department
Let’s see, this is a tough one. The raft guide who is right there, the sheriff who is trying to figure out what to do or Alpine SAR who are volunteers that have to be organized. Raft Guide wins again.
Are there a lot of questions that need to be answered here other than how low is the IQ of the Clear Creek County Sheriff? Or maybe it is an ego issue.
Clear Creek County just spent thousands of dollars on a kayak park. Who is going to go there if you risk being arrested if you attempt to help a friend? Hold on, I’ll get your paddle for you and a $150 ticket from the ego with the badge.
Support Arkansas Valley Adventures because they are standing behind their guide.
Notify the sheriff and let him know what you think: webadmin@clearcreeksheriff.us or call (303) 679-2376
Notify the Clear Creek County District Attorney and let them know what you think: 303-569-2567.
Let Clear Creek County know how you feel by posting on their Facebook page: http://www.facebook.com/pages/Georgetown-CO/Clear-Creek-County-Colorado/130701711250.
See Raft guide arrested after helping stranded rafter on Clear Creek
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I found a release on the internet. It will work right!
Posted: May 25, 2010 Filed under: Release (pre-injury contract not to sue) Leave a commentYou plan on searching the internet about your next surgery also?
Once a week I receive an email from someone looking for a free release. Once a week I tell them they get what they pay for. However, I’m tired of writing that every week so now I’m going to blog about it and just refer them to the blog.
1. Why your release must be written by a lawyer
Releases are contracts. A release or as used in the south a waiver, is a contract were in advance of any injury one party agrees to waive or release the negligent party from any claims or damages.
If you understood that, you might be qualified to write a release, but I doubt it.
Releases vary according to the following factors:
The type of activity or program you are offering. If your state has a law affecting your activity such as equine activities or rafting, then your release must match those state laws.
The type of entity or business is important A governmental entity such as a college program or a recreation center as different defenses and needs from a commercial rafting activity. A commercial for profit business does not have the benefits of governmental immunity. Similarly, a governmental entity does not have the same benefits of some state statues protecting other activities.
The clientele you are working with. If you are working mostly with minors, adjudicated youth, or other special populations your release must be written differently than a release for adults or other communities.
Language: legalese. Most states require specific language in a release to be valid. That language must be exact in some cases. That language must also not contradict itself. I’ve seen more than 50 releases that are poorly written that prevent a lawsuit in one paragraph and then give back the right to sue in the next paragraph.
More Legalese. One of my favorite issues is a release that tells the injured plaintiff how to sue and win by beating the release. Thirty percent of the releases I’ve read are written that way.
Too much Legalese. Like baking a cake, too much of the good stuff can kill the taste. There are several states that have stated that the wrong language in a release can be sued to void the entire release.
Here I’ll help a little on you do it yourself project.
- Releases must be written by an attorney.
- Your release must use the word Negligence
- You must have a Jurisdiction and Venue clause in your release.
- Your release must describe the risk.
- Your release must have a heading that points out the importance of the release.
- Include the proper list of people to be protected by the release.
- Your release must be in English
- Your release must be readable; the print must be larger enough to see
- Your release must be separate and distinct from all other documents.
- Your release needs a signature line.
The law changes. The only constant in life is change. That is doubly so when writing about the law. Here again do you want to spend your time running your business or paying for a service to check and see if the law concerning releases has changed. Then you must interpret the changes in the law or the cases to see what they mean to your business and whether or not you need to make a change.
2. Why paying for a well written release will save you money?
I charge $1500 to write a release. If you are making $60,000 per year in your business that may seem like a lot of money. At $60,000 a year you are making $30 per hour or $240 per day. The average trial in an outdoor case lasts ten days. I tell my clients that for every day in a trial they will spend three days prepping for trial. If your deposition is two days you will spend six days preparing for your depositions. Figure another ten days are lost answering discovery as well as twenty days getting your attorney up to speed before trial.
| Issue | Hours |
| 10 Day Trial | 80 |
| 30 Days trial prep | 240 |
| 2 days of deposition | 16 |
| 6 days deposition prep | 48 |
| 10 days discovery | 80 |
| 20 days attorney meetings | 160 |
| Total | 624 |
That is $18,720 of lost time. I’ve not calculated miscellaneous travel time and worry. If you take 1/3 of your time away from your business in one year, will your business survive? How are you going to hire someone to replace you, if possible, at your business while you are away?
$1500 is cheap then.
Lawsuits are always about poorly written releases.
Well written releases never are in cases that are reported, never appealed. A well written release is recognized by all sides as an effective document in stopping a lawsuit. As long as your state law supports the use of a release, a well written release will not show up in court. Good companies that hire an attorney knowledgeable about their operation or program and versed in writing releases do not show up in court.
So spend the money and have your release written by an expert. Or don’t spend the money and stay up nights hoping no one is ever hurt, no one ever sues and your insurance company will always be there to back you up.
The simple fact is a law school takes three years after college and a test by the state. After that an attorney must take classes every couple of years to stay up to date. Writing releases is difficult and the state requires that training so you do it correctly. They are difficult, complicated and require specific skills. Hire an attorney and do it right.
How is that surgery going?
For additional information about these issues read these articles. From my bog:
Four State Supreme Courts Reverse their Positions on Release (http://rec-law.blogspot.com/2008/02/four-state-supreme-courts-reverse-their.html)
Is your Release and Risk Management Program Up To Date? (http://rec-law.blogspot.com/2008/04/is-your-release-and-risk-management.html)
Releases 101 (http://rec-law.blogspot.com/2008/02/releases-101.html)
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Gross Negligence beats a release…but after the trial
Posted: May 18, 2010 Filed under: Climbing Wall, Release (pre-injury contract not to sue) Leave a commentAre you a climbing wall or a falling wall?
A judge has allowed a new trial in a lawsuit against a climbing wall. The trial occurred on whether a release barred the claims of the plaintiff. The jury ruled the release did bar those claims.
On motions, the plaintiff’s attorney argued the issue of gross negligence should have been heard by the jury. The judge agreed and will reschedule another trial on the issue.
Whether or not a release ends a lawsuit is an issue of law. The judge should have ruled on that issue prior to the trial. Either the defense attorneys did not present the release issue correctly or the judge did not rule on the issue as a matter of law.
Furthermore, the issue of gross negligence should have been argued at the first trial and should be barred from a new case. The issue on getting a new trial is not what the attorneys forgot to do, but whether there was no evidence of the evidence was interpreted incorrectly by the jury.
However, here is another kicker. The issue is not about an injury from climbing on a climbing wall, even though the suit is against a climbing wall company. The fact issue is the climbing wall has a bag, probably a stunt bag, that the guests are encouraged to fall into. The bag is designed to catch a 250 pound person on a five story fall. The plaintiff fell into the bag and sustained injuries. The plaintiff fell 28 feet into the bag when he suffered his back injury. It does not appear that the bag is used to catch falling climbers but was another type of activity offered by the climbing wall.
The plaintiff, a chimney sweep, will never be able to be a fireman. I wanted to be a fireman when I grew up……
See New tack allowed on lawsuit over back injury.
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Protecting your assets
Posted: May 4, 2010 Filed under: Release (pre-injury contract not to sue) 5 Comments
You must do it equally and with everyone….or with no one
Some outdoor recreation businesses will only use releases with specific groups of people because of a fear that this group has a greater chance of injury or a greater chance of suing. In this case, the group did have a greater chance of suing, and did, and won.
The link is to a settlement agreement between the Department of Justice and an Arizona Amusement Park: Settlement Agreement between the United States of America and Castles n’ Coasters, Inc. under Title III of the Americans with Disabilities Act, dj# 202-8-202. he amusement park required the group of disabled customers to sign a release to play miniature golf. No other guests of the amusement park were asked to sign releases.
The group filed a complaint with the department of justice and the amusement park wrote a check. By requiring the group of disabled guests to sign a release the amusement park violated the Americans with Disabilities Act. The amusement park had discriminated against the guests because of the disabilities.
Of course the investigation found more than just one violation. Once an investigation starts, it usually does not end until everything is turned over inspected and access has been provided. The $1000 fine was probably cheap in comparison to the cost of making the park more accessible and providing training to all the employees of the park on the ADA.
You cannot single out groups to require that they sign a release. Equal opportunity to sue means everyone or no one signs a release.
What do you think? Leave a comment.
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CPR is not fool proof
Posted: April 20, 2010 Filed under: First Aid 2 Comments$7.6 million jury award for seizure that occurs on a school playground. Suit based on a allegation that CPR was not performed fast enough.
It has been said the worst thing to do is outlive your children. Losing a child must be horrendous. Having a child survive but in a barely vegetative state must be close, but with no closure. However, when a child has a seizure, the chances of CPR (Cardio Pulmonary Resuscitation) working is slim at best.
The seizure was an epileptic seizure that occurred when the child was playing on the basketball court. Either the seizure or the fall stopped his heart. The parents argued that the CPR was not soon enough and not adequate.
Now this is where it gets real exciting. The family had received $361,237 from a seizure the child had in 2003. The child fell on a playground and suffered burns from the metal grate he fell on. A nurse and marine administered CPR bringing the child around.
WHAT IS THE KID DOING ON THE PLAYGROUND A SECOND TIME?
The school district offered to transport the child for free to another school where there was a full time nurse. The mother declined because it was too far away. Boy is it tempting to say something about losing opportunity at this point!
This is a sad case. This is also a disgusting case. This is a case where the phrase Fool me once shame on you, fool me twice shame on me fits. This is just stupid.
See Jury awards $7.6M for playground seizure.
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New CPR method: 100 compressions per minute
Posted: April 8, 2010 Filed under: First Aid Leave a comment
Mayo Clinic produces video about the technique.
A video titled Continuous Chest Compression CPR – Mayo Clinic Presentation explains the new CPR method. The idea is based on several issues. 1 is keeping blood pressure up to force blood all ready enriched with oxygen into the brain. 2 is the idea that most people did not like performing the mouth to mouth part of the compressions.
There is a companion website Cardiopulmonary resuscitation (CPR): First aid. The website explains if you are confident and trained mouth to mouth is still a good idea, but the ratios should be 30 compressions to two breaths.
Keywords: CPR, cardio pulmonary resuscitation, mayo clinic, chest compressions, mouth to mouth
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