UIAA Medical Commission provides advice on contraception at altitude
Posted: July 2, 2009 Filed under: First Aid, Mountaineering 1 Comment
OK, maybe the headlines were a little titillating or confusing, but there are real issues with climbing and drugs. As the article describes there are issues with any drug at altitude. Additionally some women take contraception to control the effects of menstruation cycle while they are climbing
No matter how titillating the medical issues and need for the article is real.
See Medical Commission gives advice on contraception at altitude. You can read the actual article at Contraception and Period Control at Altitude
Waivers/Releases work in Colorado: Skier collision with snowmobile dismissed
Posted: June 30, 2009 Filed under: Release (pre-injury contract not to sue), Skiing / Snow Boarding Leave a comment
Aspen Skiing Co. was sued in Federal District Court by a guest who collided with a snowmobile in 2006. The guest had signed a release when he purchased a season pass for Aspen Skiing Co. The Denver Federal District Court dismissed the suit, (probably on a motion for summary judgment.)
The plaintiff’s attorney has stated he intends to appeal the decision.
The issues were, according to the plaintiff whether the snowmobile was traveling in a proper way and equipped and operated as required by the Colorado Skier Safety Act (CSSA). A witness reported that the “snowmobile did not have a flashing, siren-like light to warn skiers of its approach.” However the CSSA does not require a flashing light. The act only requires a lighted headlight, a red tail lamp, a brake system and a fluorescent flag.
Nor is there anything in the statute about how a snowmobile will be operated.
However many ski areas, to make their snowmobiles more visible, have mounted flashing lights all over the snowmobiles. Many are also equipped with sirens that are used to notify skiers of their location. Does this change the standard of care? Maybe, but it does not change the statute. Unless and until the statute is changed, the standard of care is probably, hopefully the statute.
For other blogs about the CSSA see Another Ski Area lawsuit and 8 Year old boy sued in Colorado for ski collision
For more information about the Colorado Skier Safety Act at the Outdoor Recreation Law Review see:
Case Brief: 1986 lawsuit against Winter Park raised question – where does the ski area officially begin and end?
Colorado Skier Safety Act
For the original article see: Signed waiver protects SkiCo from collision suit
Court Dismisses Bike Racer’s Lawsuit in PA
Posted: June 30, 2009 Filed under: Cycling, Release (pre-injury contract not to sue) Leave a comment
Paralyzed bike racer’s suit against race organizer dismissed.
We wrote about this in Lawsuit filed against bicycle race organizer which has a discussion of the facts of the case.
The trial judge in this case dismissed the lawsuit because of the two releases the plaintiff had signed prior to the race. One of the releases was from USA Cycling.
The race, the Tour de ‘Toona, was not held this year because of finances and the litigation.
However this litigation is not over, the plaintiff has said they will appeal the suit.
It is a very sad situation and all parties including the judge in his 30 page opinion expressed his sympathy for the plaintiff who is now paralyzed.
See Court dismisses biker’s Tour lawsuit
Lawsuit filed against bicycle race organizer
Posted: June 25, 2009 Filed under: Assumption of the Risk, Cycling, Release (pre-injury contract not to sue) Leave a comment
It is always sad when a racer is injured, worse when one is paralyzed. For those of us who love to push the limits, it is a real mental argument whether life in wheelchair is life.
Sarah Scott filed a lawsuit against the Tour de ‘Toona, a bicycle race in Martinsburg Borough Pennsylvania. As she was rounding a 90 degree turn she “left” the highway and crashed into a ditch. She suffered several shattered vertebrae and is paralyzed from the waist down.
Prior to entering the race she had signed two different releases. The plaintiff is arguing the defendants were reckless and advertised the race as “safe.” The plaintiff claims that in past races there were at least two wrecks at the same location without incident and that hay bales should have been placed there as they were in other locations around the course.
However isn’t that argument self defeating. If there had been other crashes without injury at a location, why would additional protection be needed?
The plaintiff’s lawyer stated “You can’t assume [a risk] that you can’t see,” which in most states is not true. As long as you know that there may be a ditch, or other problem and you continue the activity, you know and understand, you assume the risks.
The article states that there was a lot of emotion in the case. I suspect that this is very true. It is difficult to look at someone in a wheel chair. However the article also states the plaintiff wanted to move up in the cycling world. Between two releases that were signed, if properly written and a knowledgeable racer cycling in a race it is difficult to believe the case should not be dismissed.
Even if dismissed, it will be appealed. There is too much money at stake.
See Tour de ‘Toona seeks lawsuit dismissal.
For additional Rec-Law blogs on the subject of bicycle racing or tours see Maybe a little premature on a post: RAGBRAI, and Cyclists suing over hole in bike path
For more cases on bicycle racing see Case Brief: NORBA release saves event operators when race release was lost, Case Brief: Kansas court finds for defendant in bicycle race lawsuit, Case Brief: Death during mountain bike race sparks lawsuit over failure to follow standards and checklists, Case Brief: City of New Orleans and Dog Owner not Responsible for Injured Cyclist, and Jurisdiction can affect the potential outcome of a case.
Permit Outlaw? We just call them pirates, sentenced to jail
Posted: June 16, 2009 Filed under: Criminal Liability | Tags: California, National park, National Park Service, NPS, Parks, Travel and Tourism, Washington DC Leave a commentThe morning report for the National Park Service on April 10, 2009 reported a man was given jail time and probation for threatening an NPS ranger. The man was originally in trouble for camping in National Parks without the necessary paperwork.
See “Permit Outlaw” Sentenced For Threatening Ranger. I’ve never heard of the term Permit Outlaw, we just always called people who don’t have permits pirates. However this is an example of how a minor problem escalates when you lose your temper.
Great Articles in the latest WMS Journal
Posted: April 28, 2009 Filed under: First Aid Leave a comment
The Wilderness Medical Society puts out a Journal called Wilderness and Environmental Medicine. Most times it is hard to read unless you have a medical background. All the time it is full of great information for those of us running around in the outdoors. The latest issue Volume 20 Number 1, 2009 is unbelievable good for practitioners. Samples of the articles in this issue are:
Grand Canyon Water Analysis: An Article Titled An Analysis of Water Quality in the Colorado River, 2003-04; An Investigation Into Recurring Outbreaks of Nororvirus Among Rafters. Norovirus is a major problem in the grand. No one has any real idea of what or how, but this article gives some good ideas on both. More importantly the article points out some ways to deal with the virus if a member of your party gets it.
Chemical Hand Warmers: Comparison of Commercially Available Disposable Chemical Hand and Foot Warmers. I love it when science meets hype.
Ankle Fractures: Field Management of Displaced Ankle Fractures: Techniques for Successful Reduction.****
Avalanche Burial: The Snow Snorkel: A Proof of Concept Study. Sort of a cheap Avalung® meets reality issue.
Altitude Illness: Ginkgo biloba Does – and Does Not – Prevent Acute Mountain Sickness. Ginkgo biloba has been touted as the natural alternative to Diamox®. This study does a good job of setting the facts straight.
Altitude Illness II: Ankle
Brachial Index on Kilimanjaro: Lessons from High Altitude. Interesting study of checking the brachial arteries in your foot for problems.
The information is only available if you are a member of the WMS, however this volume alone would pay for itself if you are running an outdoor program near poisonous snakes (study on this too), at altitude, avalanche areas or …well you get the idea.
However this does bring up an interesting issue. The article on reducing ankle fractures could lead to problems. If you are a commercial guide the liability is one thing. If you are a Good Samaritan this is above and beyond your training, unless you are a physician and therefore not covered.
At least three bills are moving through Florida Legislature to allow a Parent to Sign away a Minor’s right to sue.
Posted: April 22, 2009 Filed under: Release (pre-injury contract not to sue) Leave a commentThe Florida Supreme Court struck down a parent’s right to sign away a minor’s right to sue in Kirton vs. Fields, No. SC07-1739, No. SC07-1741, No. SC07-1742 (FL 2008). For an analysis of the decision See Florida follows majority in not allowing a parent to sign a release for a minor.
If you have a business or operate in Florida you should be become a supporter of the bill that helps you and every other recreation provider in Florida. Several of the bills are only for the motorsports industry, where the original lawsuit came from. So you need to make sure you are jumping on the right bandwagon.
As a major tourist state, Florida recreation and tourism providers will see an increase in their insurance costs when litigation for injuries caused by minors starts to increase because of the decision.
See Florida Panel Advances Bill to Restore Parental Liability Waivers for Kids and Let parents say what’s safe, theme parks urge.
Spring is here.
Posted: April 14, 2009 Filed under: Release (pre-injury contract not to sue), Risk Management Leave a comment
Spring is here in the Rockies. You can always tell; there are only a couple of ski areas still open and the first motor home of the season is slowly grinding its way up the mountains. At this time the marketing of the winter starts to turn into equipment cleaning and employee training for the summer. Spring is also the time when decisions start to be made.
The decisions involve how your summer recreation business is going to operate for the season. Those decisions always involve a balancing: cost versus benefit. Many times those decisions have an impact or are impacted by risk management and insurance issues. In those situations, your attorney and insurance company can provide you with advice, although only your attorney’s advice is going to be conflict free.
As a lawyer, it is my job to provide you with information from purely a legal position so you can make those decisions. It is not my job or any attorney’s job, to make those decisions for you. The information an attorney provides to his client is always at one end of the operational spectrum; the perfect, no lawsuit end. An attorney can’t give you answers that would put you in a position where you may be sued. We can only give you the best advice we have. You can ask about any middle ground, we will answer your questions if possible and direct you back to safe, lawsuit free side of the balance.
An attorney can tell you his or her best guess on what would happen if you did not operate at the highest level of operations. However, that is scary for an attorney. Yet, we know that you must balance that decision between no lawsuits and a profitable operation. Sometimes, you must run your business knowing that someone may be injured and someone make file a claim.
At that point you must always make 3 steps in your risk management process. (1) You must deal with any accident appropriately. (2) You must follow your risk management plan. (3) And you must hope your release and/or other documentation will keep the incident from becoming a problem.
There are three areas that are always at issue for every business that each has an effect on risk management.
Employee Training: All too often employee training is cut back or eliminated in an effort to save money. It costs money to train employees; it costs more money to have employees not making you money. However employee training is critical in all aspects of your business. Well trained employees are less likely to develop or create a risk management problem. Well trained employees handle problems better and with less friction if a problem does arise. Well trained employees require less management, and well trained employees look good in accident reports and you look better if they are on the witness stand.
Equipment Maintenance: There is nothing worse than having equipment fail, except having the failure be the cause of an accident. Equipment maintenance is must do on your spring checklist. Start with equipment that would be termed safety equipment. Lifejackets, climbing ropes, harnesses, tack, helmets and any other equipment that would be classified by someone as necessary for the safety of the activity. There is no defense to a claim that you allowed guests to participate in your program with unsafe equipment that is required to keep the guests safe. Follow up with each piece of equipment. It might be a great time to create an equipment maintenance plan to track equipment, equipment failure, repair and replacement.
Vehicles: Automobile claims and the ensuing claims check are part of US society. I worked for an insurance company who automatically mailed anyone in an accident $500 if they said they were “shook up.” Combine that with the state and federal laws dealing with transporting people and a vehicle that does not meet safety requirements is a big check waiting to be mailed. Make sure the vehicle not only runs, but stops, and meets all state and federal (if necessary) safety requirements. Take this opportunity to clean your vehicles. Customers appreciate a clean ride to and from the activity. Here again, this may be the time to develop a vehicle maintenance plan in conjunction with a professional to track equipment, equipment failure, repair and replacement.
There are thousands of ways to spend your money and you are constantly balancing how that money is spent. In the past there was a tendency to rely on insurance to balance the safety end of the business and risk management plan; accident occurs call the claims number. However as shown by the last 2 years, insurance premiums can skyrocket, even if claims do not, and worse insurance policies can just disappear from the marketplace. For several industries the last 24 months was not one of paying more for insurance but desperately trying to find any insurance policy. The cost of an insurance policy is affected by dozens of factors, your claims history is one of those factors, the more that you can do to keep your claims from happening and from becoming a check will help to keep those costs from rising quickly.
Your insurance budget used to be large, but not the 2000 pound eating machine it has recently become. That balancing act now requires a larger commitment to spending more money to try and keep the eating machine from eating more, blowing your budget past the breaking point.
These decisions cannot be made by your attorney. Those decisions are made in consultation with your attorney to make the decisions based on all of the factors for your business. Your attorney does understand those issues and hates giving you advice that requires you to walk a thin or gray line between profitability and bankruptcy, but that is your attorney’s job. Your job is to take the information and based on your parameters and your budget to use it as best you can.
Have a great season.
Great article dealing with a fatality at a fitness center or anywhere else
Posted: April 9, 2009 Filed under: Risk Management Leave a comment
Fitness Management online has a great article Sudden Death at Fitness Center that everyone in the fitness or recreation industry should read. The article reinforces several things I have personally experienced and have preached for years.
“After the tragedy, the only support he received from the company was a phone call from the corporate office saying, “You can take the rest of the day off.” The next day, it was business as usual. He is still traumatized from these events, and suffers from regular panic attacks.”
How many of your operations employ 20 year olds, either as boatman, front desk personal or trainers? How often in the United States do we deal with death? Never! Bodies are whisked away, packaged and prepared now days. Think about the trauma your employees are going to have if they have to deal with someone dying. You better start now in preparing your employees for this and in preparing for a post incident program.
“In addition to this employee, think about the other members who witnessed the event. Aside from the obvious shock of a member dying in the facility, how did the other members view the fitness staff?”
What about the other people who witness or participate in the incident. How many of them have actually dealt with a death. What are they going to think of you when the incident is over? Why does that matter, because a bystander always has another name, which is called a witness in a trial. Are those people going to testify for you or against you? Are they going to say you did everything you could, that you were prepared, that you handled the situation correctly?
“Training scenarios for your staff members should include situations where a rescue is not successful.”Practicing how you handle a tragedy like this will give you a reference point for the future in how you respond in supporting your team, and how you face and answer difficult questions from members,” says Streich. “This is not a movie or TV show. The victim does not always survive.” “
This is awesome. Training for a situation where the participant or guest does not survive. The article states most people don’t survive CPR or the problems that prompts the need for CPR. Have you prepared your staff, yourself and your program to deal with that? Brilliant!
“Even if the victim survives, there are still emotions left to deal with.”After an event like this, it is natural for the first responders to feel some degree of guilt,” Kennedy explains. “Some may have recalled their initial hesitation, panic and feeling of helplessness. They will ask themselves questions: ‘Could I have done more?’ ‘Did I do anything wrong?’ All of these types of questions surface.””
I worked at a ski resort. Immediately after a fatality or a life changing incident a CISD (Critical Incident Stress Debriefing) session was scheduled and held. I was amazed at several things. The first was who showed up at some of them. It is amazing how many people are actually on the scene that you will never see in the middle of the incident. The second was how much better I felt afterwards.
At the opposite extreme, after performing CPR on the victim of a tornado in Salt Lake City twelve years ago I asked a police officer and then a fireman if there was a CISD program in Salt Lake. Both said no. Piling on was the feeling I got. I knew this was going to be a mess to deal with and worse I had no outlet for dealing with it. Thankfully I was able to find some knowledgeable people to talk to about the issues.
Everyone who reads this blog should read this article!
Letter to the Editor: Parks & Rec Business
Posted: February 26, 2009 Filed under: Assumption of the Risk, Release (pre-injury contract not to sue) 2 Comments
February 13, 2009
Rodney J. Auth
Parks & Rec Business
PO Box 1166
Medina, OH 44258-1166
I read with interest and then concern Dr. Panza’s article No More Waivers, Releases or Consents: A Better way to protect yourself in the February issue of Parks & Rec Business. Mr. Panza’s ideas could cost the industry millions and probably void most insurance policies.
Mr. Panza is writing based on one lawsuit in one state, Connecticut. Recently as Mr. Panza noted the Connecticut Supreme Court reversed its holdings on releases and held them void in Connecticut. In 44 other states, releases are still valid and stop litigation.
In those 44 states that support releases, a release saves money. Mr. Panza’s argument may make sense in theory, but his article misinterprets the law. For a participation agreement to be effective a jury must decided that the parties understood and assumed the risk. That means the issue must go to trial. That will cost hundreds of thousands of dollars. Judges through motions cannot decide the facts, only whether the law. Thus, the trier of fact, a jury in a trial is the only group who can decide that the participant understood the risks of the activity and voluntarily undertook those risks.
That argument is open to a lot of interpretation by the jury and attack by the injured participant/plaintiff. No matter what the participation agreement states, the document, because it is not a release, is subject to interpretation and argument.
A release can be used to file a motion for summary judgment soon after the litigation begins. If accepted a release stops the litigation after only tens of thousands of dollars have been spent. Trials can take years; motions can take months so there is a major time savings when using a release.
Participation agreements do not stop litigation in any state by a minor. A release signed by a parent can stop litigation by a minor in five states and five additional states a release stops litigation for specific activities. Ohio, your home state allows a parent to sign away a minor’s right to sue.
Most insurance companies working in the outdoor recreation industry require insured’s to use a release. It is a condition precedent in the policy meaning if the insured does not use a release there is not coverage. I’ve personally been involved in this type of litigation.
Mr. Panza is correct in stating that the industry needs to do a better job of communicating to participants. The more a participant in a program knows about the programs and the risks, the less likely they will want compensation in the first place.
However the basic wall of protection for all adults in any activity and the only effective one in the vast majority of states is a release. As much as you may dislike using one, you will dislike even more testifying in trial about an injury, however minor, a participant in you program received.
When writing legal articles, an understanding of the law is critical to not provide wrong information.
Sincerely,
James H. Moss
Cc Joseph A. Panza, Ed.D. panzaj1@southernct.edu
New BSA Medical Form is a Disaster
Posted: February 19, 2009 Filed under: First Aid, Medical, Release (pre-injury contract not to sue) 11 CommentsSomeone sent me a link to the latest BSA Medical Form.
It is quite interesting, very misleading, has limited additional value and put volunteers are greater risk of litigation. If you are interested here are the issues.
1. The form states that it has a hold harmless/release agreement attached. IT DOES NOT. There is language attempting to create a release and in three or four states it might. However most states require specific language to create a release and it does not exist in this document.
2. It places a requirement on unit leaders to know of and know how to treat the medical needs of the youth in their unit. The first issue is how much medical training is now needed to understand the issues. Worse however is the liability this creates? Example:
A. How about a new unit leader who just started who has not had time to take any first aid training. Kid at a meeting has a medical issue and the unit leader is now facing a lawsuit because he did not know about or know how to treat the kid.
B. What upper limit exists on the training? You have a child who requires advanced medical care. The parent reads the medical form, completes it and sues when her child dies. The unit leader was supposed to know about and know how to deal with the medical issues. In this case, the medical issues required an EMT or physician to deal the medical issues. Yet the mother relied, appropriately so on the medical statement to her detriment.
3. There is a 30 minute medical radius for medical care. This can eliminate most of Colorado as a place where a unit could go with someone who does not meet the medical transportation issues. Other than a few cities, all of Wyoming, Montana and Idaho are now off limits. Large portions of New Mexico, Arizona, Utah and most of Nevada are probably off limit to BSA units.
4. Prescriptions. This section creates a real problem that you need to deal with in writing. If any parent reads this and asks if you will assume the responsibility for any child taking their prescription medications say NO. If anything goes wrong and you have accepted this liability you are now liable. It may have nothing to do with what you have done, but combined with the required level of medical knowledge this is a ticking time bomb.
How to Deal with this?
Write ever parent in your unit and notify them that prescription and non-prescription medications will be their responsibility.
5. Release. The release is a poor start, but at least it is a start.
A. many courts throw out releases that are imbedded in other documents. The release needs to be separate and distinct.
B. The release needs to have a release of negligence. There is no lawsuit without negligence and this release in most states does not release negligence.
C. The medical information release is another good start, but it needs to specifically state what it is trying to do. Example
1. Unit leader takes crew on hike with assistant. Youth is inured and assistant hikes out with injured youth. Based on this release, is the assistant unit leader allowed to provide the medical information to the EMT? No. Medical information is confidential and this document does nothing to help volunteers in this matter.
D. Most importantly now in most states you are liable if you release medical information to anyone without their permission. That means before you can tell the Ambulance Squad attendant about the injury you have to have the parent’s permission to do so.
If the youth has a communicable disease you can’t tell anyone about in several states without their permission.
This medical release fails to provide that protection.
6. Notary. No state requires that a release or medical release be notarized.
Conclusion.
The major issue that will occur is the expectation this will place on parent. I tell my clients that the marketing creates promises that are proven breached in the courtroom. This is similar. The document is creating an expectation in parents that you cannot fulfill in a lot of cases. Failed expectations coupled with an injury are called lawsuits. You may win, but you will cost your homeowners’ insurance a lot of money to do so.
Utah Supreme Court Reverses long position on releases in a very short period of time.
Posted: February 6, 2009 Filed under: Release (pre-injury contract not to sue) | Tags: Alta Ski Area, Park City, Park City Mountain Resort, Release, Salt Lake City, Season Pass, Season Pass Release, Snowbird, Solitude Mountain Resort, Utah, Utah's Inherent Risks of Skiing Act, Waiver Leave a commentRothstein v. Snowbird Corporation (UT 2007)
In an amazing decision, the Utah Supreme Court ruled releases were no longer valid as a defense by Utah Ski Areas. With one statement, “We hold that the releases are contrary to the public policy of this state and are, therefore, unenforceable” place all outdoor recreation activities in Utah at risk.
In more confusing is the same Utah Supreme Court less than 90 days earlier had upheld a release signed by a skier in Berry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192.
Yet 50 days later the same court upheld an injured skier’s right to sue, even though the skier had signed two different releases. In Rothstein the plaintiff had signed a release for his season pass at the defendant resort and a release for his Seven Summits Club Membership. Rothstein was injured when he skied into a retaining wall above where the wall had been roped off. There was a light dusting of snow which partially or did hide the retaining wall.
The court then analyzed the legislatures intention in creating the Utah’s Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007) and concluded the act was enacted to help ski areas keep insurance costs down. In effect because the legislature had enacted an act to help the resorts, the resorts were limited solely to the defenses provided by the act.
For an analysis of this case see: Utah Supreme Court flip flop on releases for ski areas could have broader consequence (Subscription).
Well in New Zealand…….you go to JAIL!
Posted: January 7, 2009 Filed under: Criminal Liability, Ski Area 1 Comment
Another example of the differences between the US Legal system and those of other countries is the response if someone who is injured or killed while recreating. Unless there is very clear criminal liability, and I have never seen that in the US, US recreation providers do not have to worry about jail time. In a few cases I have seen minor fines for infractions that rarely had anything to do with the injury or fatality.
However that is not the case, in Europe or the rest of the world, were the government takes a bigger role in the operation of business and any injury. In this case this article speaks to a young woman who died river boarding while on a vacation. See Travel company charged after Worcestershire woman’s holiday death.
The company that organized the activity is facing criminal charges for the death of one of their guests. The company is facing three criminal charges with a maximum fine for each charge of $250,000 NZ. The charges were brought after an investigation by the government. Another rare issue in the US, unless someone complains or the activity is done under a Federal or State Land Managers permit.
Of note is a statement made by the father of the deceased, after visiting the place where his daughter died. He “described the experience of visiting the place where she died as “harrowing.””
If you do not understand the difference between civil liability and criminal liability, and there are solid examples of this in the comments, they are very different. See Vail found not liable for negligent hiring or actions of a ski instructor, Same facts difference between civil and criminal cases, same reason for using the courts, Another Litigation versus Criminal example or Litigation v. Jail Time. For an example of not understanding the difference see the comments after Youth and Adult Molesters.
CDC Study a little misleading.
Posted: December 23, 2008 Filed under: First Aid Leave a comment
The Center for Disease Control sent out an Outdoor Injury list this summer that gathered a lot of headlines across the nation. Snowboarding was listed as the top cause for outdoor injuries. See CDC: Snowboarding Tops Outdoor Injury List. The study can be found at New CDC Study First To Present National Outdoor Recreational Injury Estimates. The information on the list is correct; however the list is not a correct representation of the facts.
Several news sources looked at the data and found major flaws in the data. See Snowboarding a leading cause of emergency room visits nationwide.
First the data did not include any cycling or biking activities. Nor is swimming included in the study. Biking alone would represent 75% of the injuries if included in the list and swimming would be much higher than snowboarding.
Skiing is not even in the list, yet there are far more ski injuries every year than dozens of other items listed.
The CDC still states that the greatest chance of dying comes from transportation. Getting to the slopes or outdoors is still more dangerous.
Two Headlines caught my eye – Environmental & Wildlife Protected.
Posted: December 20, 2008 Filed under: Criminal Liability Leave a comment
KRDO TV of Colorado Springs is reporting that a hunting guide from Utah was caught illegally guiding clients in Colorado. He was sentenced to one year in prison and three years of probation. See Utah Guide Gets Prison Time for Poaching in Colorado
The EPA has also released a most wanted list of polluters. The page lists 23 people who have been charged with environmental crimes that the EPA wants caught. See EPA Fugitives.
Pretty neat.
This is how a standard in the industry changes
Posted: December 18, 2008 Filed under: First Aid | Tags: AED, Automated external defibrillator, automatic extenal defibrullator, Boy Scouts of America, first aid, RecreationLaw Facebook, Standard of Care, Youth Camp Leave a commentIt moves up because the best get better.
Many people believe that the standards of an industry change three basic ways.
#985 Airport not in Japan (Photo credit: Nemo's great uncle)
1.) The entire industry gets better.
2.) The bottom, or worst part of the industry gets better; or
3.) Written standards are created that makes the industry get better.
All three are incorrect. (The third belief serves the opposite effect and usually promotes lawsuits.)
Standards change when the best get better and move the standard in the industry upward. It was recently reported that the Boy Scouts of America purchased AED’s for all of its offices and camps. That is an example of the standard changing for camps. It may not affect the youth the camps are designed and run for, however it will affect the adults at the camp.
Has this changed the standard of care for adults and visitors at camps?
In this case we have the largest promoter of camping in the US with 4 million members and more than 300 offices and close to 400 camps putting AED’s in their camps. This is a major move on the part of the industry. A significant, as measured by numbers or percentages of the industry now has AED’s at their camps.
If other youth camps, either based on this, or on their own start installing AED’s as their camps the standard in the industry is shifting towards or requiring having AED’s in camps.
The standard changed.
What do you think? Leave a comment.
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Losing control of a campfire at US Forest Service Campsite Expensive
Posted: December 9, 2008 Filed under: Criminal Liability Leave a comment
A 64 year old man from Washington D.C has been indicted for allowing a campfire to get out of control and start the largest fire in the last 80 years of Minnesota’s history. The defendant was camping in the Ham Lake Campground in Superior National Forest just outside of the Boundary Waters Canoe Area. The fire burned 75000 acres costing $11 million to battle and destroyed 150 buildings.
The defendant is charged with one count of setting timber afire, one count of leaving a fire unattended and unextinguished and one count of giving false information to a USFS officer. The charge of setting timber afire is a felony with a possible 5 year jail term. The remaining counts are misdemeanors.
See Camper indicted 18 months after most expensive, destructive Minnesota fire in 80 years
What you see as normal, the rest of the world thinks is NUTS!
Posted: November 28, 2008 Filed under: Risk Management Leave a comment
I read an interesting article about a zip line that employees of Google has strung between the Google campuses. There is a new building on the other side of a ditch from the main campus and a long drive around. The main campus is where all of the employee benefits are like “lobsters for lunch.”
The zip line from the photographs appears to be about 10′ above the ditch and guessing less than 20′ wide. The ditch is too wide to jump and obviously who wants to drive to lunch.
However the city took the zip line down. Probably and this is purely a guess for liability reasons. The liability of falling 5′ into dirty water is pretty big……
We have to realize that what we do in our sport, what we take for granted scares the heck out of most other people. What looks like fun and an easy way to get to lunch to a 20 year old looks dangerous and scary to a 50 year bureaucrat. We work on the river, in the cave or above ground on a zip line or challenge course every day. We are used to what we are doing. It is our backyard, our office. We go to work by putting on a harness or a life jacket and think life is wonderful.
You have to remember that everything we take for granted and do every day is a new experience for our customers. You can tell when you hand them a harness or PFD and they just stare at it. We approach the first rapid and they get buzzed or nervous. We climb the tower, sometimes forgetting to clip in and they check their harness and tie in half dozen times before putting a step on the first ladder.
You have to remember this way before and way after any incident. You need to tell potential customers exactly what they are facing, from their point of view. Walking a balance beam on the ground is easy. Walking a balance beam 4′ in the air at the Olympics is terrifying. If it were not so, no one would care or watch.
You also must realize this after someone is hurt. Family members are not going to understand why you put their loved one at risk. They can’t fathom any recreation or vacation as anything other than Disneyland.® Why would anyone go to be hurt doing something.
See Google ‘invests’ in Zip Lines and Google’s New Zip Line Yet Another Reason to Hate Your Office
You also need to remember that what we see as dangerous the cartoons in our life may see as normal.
Thanks Matthew!
Shark Feeding Death triggers debate
Posted: November 18, 2008 Filed under: Jurisdiction and Venue (Forum Selection) 3 CommentsA 49 year old Austrian attorney died after being bitten by a shark in the Bahamas with Jim Abernethy’s Scuba Adventures (JASA). The deceased was on a shark feeding trip where the sharks are baited using chum and the participants are not in cages. The shark apparently missed the food, bit the leg of the deceased and released him. However he bled out before he could be transported to help. See When Adventure Tourism Kills, Tourist’s death sparks shark-diving debate and Sharing the Truth About the Shark “Attack” in the Bahamas.
Shark watching is big business. It has grown substantially over the past several years. Florida has numerous shark feeding businesses; however Florida law does not allow chumming. The (JASA) had moved from Florida to the Bahamas allegedly to avoid the law.
Ignoring the issues of training sharks to associate food with boats and humans the articles have tackled numerous legal issues, some correctly, some incorrectly.
There has been an extensive debate over the civil legal issues in this case. However the accident occurred in the Bahamas with a non-US citizen so US law does not apply. Bahamian or the law of the release (if one was used) will probably control any litigation. Admiralty law may be the law applied to the case which although more generic by country is still not US law. For more information on jurisdiction and venue See: Pennsylvania court case highlights importance of where a business is located, Jurisdiction can affect the potential outcome of a case and Choice of Law and Venue — What Law Applies and Where? (Subscription Service)
Another raging debate is the fact that cage-less shark feeding is relatively a less risk sport. A group called Shark Savers, is defending the acts by saying that shark diving is safer than many other sports. However the sports they are comparing themselves too are unguided sports. There is a higher level of care or safety expected and received from a guided trip then from an unguided trip. That is why you hire a guide, to provide you with the knowledge, skills or safety from the risks that you do not have.
Shark Savers also states that “biking, swimming and boating” have significantly more injuries a year than shark feeding. This is probably correct. However the number of hours that people spend feeding sharks a year versus biking, swimming or boating does not make a fair comparison. If shark feeding had as many people spending as many hours feeding sharks as people riding bikes then the number of injuries would be significantly more. The website is comparing apples to oranges and skewing numbers to make the sport look safe.
There are some real issues however that can be educational. The JASA website is full of statements that would be difficult to support during any accident or could lead to liability in this case. The JASA statements include:
Three prominent statements telling possible guests that they will be safe. And yet someone died. Either the website is wrong, guilty of over promoting itself or this was a rare accident, which statistics show is not true.
On top of that is the fact JASA is a Florida based business. The website is quite clear that they are based in Florida and have a Bahamas operation. If you serve the business in Florida then Florida law may apply, absent a specific jurisdiction and venue clause in a release. Even if there is a release signed by any victim a complaint alleging negligence per se, because of the violation of the regulations may be successful in brining the defendant under Florida law.
Vail found not liable for negligent hiring or actions of a ski instructor
Posted: November 15, 2008 Filed under: Criminal Liability, Ski Area Leave a commentVail won a trial this past summer brought by the family of a client for negligent hiring. The basis of the claim was an employee of Vail, a ski instructor, took a 17 year old client back to his apartment and allegedly raped her. The ski instructor was found not guilty of rape in a criminal trial but was found guilty of contributing to the delinquency of a minor.
The instructor has an extensive DUI and misdemeanor record. However nothing indicated in his background a propensity for anything other than drinking and recreational drug use. The instructor had an impeccable work record as ski instructor.
For understanding the difference between a criminal act and a civil act see Same facts difference between civil and criminal cases, same reason for using the courts or Another Litigation versus Criminal example
This case, based on the reports helps explain the differences between a criminal act, which is solely the responsibility of the individual and a civil liability which can hold anyone liable for their acts if they are negligent.
At the same time, if you were basing your lawsuit on who caused the injury, wouldn’t you sue the ski instructor? You could transfer that anger to the employer, Vail, or you could sue the company because they have more money. Either way, holding Vail liable for the actions of any employee off work seems a little stress. Granted the ski instructor met the 17 year old client while on the job, but…..
Releases/Waivers: The basics, the very basics!
Posted: September 26, 2008 Filed under: Release (pre-injury contract not to sue) | Tags: Law, Legal release, Release, Releases / Waivers, Waiver, waivers Leave a comment1. A release cannot be written by anyone other than an attorney. Sure you can try and write one but you are just wasting paper, or killing trees. Releases must meet the specific legal needs and requirements of your state, your activity and numerous other issues. See Releases 101.
2. Some states require the use of “magic words” to make the release enforceable. Without those words you are back to killing trees. See What is a Release?.
3. You release must make sure that the correct law that will be applied to the case and the correct location where the lawsuit will occur are identified so the release is valid. See States that do not Support the Use of a Release.
4. After that the issues that require a release to be correct still go on. The legal terminology for who is going to be protected by the release. The correct terminology for who is going to be prevented from suing in the release is critical.
5. At the same time, your release cannot be written in legalese in many jurisdictions.
6. Your release must be checked every year to make sure it is up to date. Each year a judge someplace decides to tweak or in some cases totally change how state law applies to releases. If you are in the state where that occurs you MUST know and make changes. See States that do not Support the Use of a Release.
7. Are you clients under the age of 18? That is sets up more requirements for writing a release. See States that allow a parent to sign away a minor’s right to sue.
These are but seven of hundreds of issues that must be covered for a waiver to be upheld in a court of law. There is no easy checklist of items to cover. Each state is different, each activity is different. As an example there are 50 states, and several territories, with equine liability acts. No one release will work in many of the other states. Add into that mix skiing statutes, whitewater rafting statutes and you are all ready at hundreds of different requirements that must be met for different statutes. See What is a Release?.
You can’t write your own release unless you just want to waste paper.
For more articles on releases see:
Well written decision from Wyoming defines release law and how releases should be written.
Plaintiff signed two releases and wanted them both thrown
Same facts difference between civil and criminal cases, same reason for using the courts.
Posted: September 18, 2008 Filed under: Criminal Liability, Ski Area Leave a comment
Vail won a jury verdict in a civil suit for the alleged rape of a Vail customer by a Vail employee. See Vail Resorts wins ski instructor lawsuit. The Vail employee had been found not guilty in a criminal trial earlier, but had been convicted of Contributing to the Delinquency of a minor. See Former ski instructor gets 90 days in jail.
It is not necessary to get into the facts of the case to discuss the legal issues here. The ski instructor was charged with a criminal act. Vail was charged with a civil negligence claim.
The burden of proof, what the prosecutor has to prove, in a criminal trial is the ski instructor did the act Beyond a Reasonable Doubt. The plaintiff in their civil suit against Vail must prove their case by a Preponderance of the Evidence. These are two of the hardest concepts to understand in the law.
In the US we base our system on the idea that personal freedom, not doing jail time, is the most important issue. Subsequently we have a very high burden to prove that someone should go to jail, Beyond a Reasonable Doubt. Any doubt at all and the alleged defendant are free, not guilty. This is very different from Europe. See Litigation v. Jail Time.
The burden to prove a civil suit is much lower, a Preponderance of the Evidence. A much lower level of proof needed to prove that someone has done a civil wrong.
There is a relationship between a criminal trial and a civil lawsuit based on the same facts. But the actual claims in both cases are very different.
In the criminal case the prosecutor must prove the alleged defendant did the act: had sexual relations with a person under the age of 18. In the civil case the argument was that Vail negligently hired the ski instructor. By not doing a background check Vail had allowed, negligently to hire someone they should not have hired.
Even though the cases stem from the same set of facts, the civil and criminal litigation are very different, very different issues to prove and very different results.
But the reasoning, the reason for both cases seems to be anger, revenge, and punishment.
See: Vail Resorts wins ski instructor lawsuit
Ski Resort Employee convicted of theft for staging a worker’s compensation accident.
Posted: August 12, 2008 Filed under: Criminal Liability, Ski Area 1 CommentAn employee of a ski resort has been convicted of grand theft. The employee tried to stage an accident to collect from the resorts worker’s compensation insurance. The employee talking with another employee realized a 4′ to 5′ deep hole had been dug to test drainage on the resort. After work, Nicholas Jason Beaver jumped repeatedly on the snow bridge covering the hole until he fell through and into the hole. Beaver was angry because he had been told he was not going to be hired back the next ski season. Two friends witnessed the incident.
While falling into the hole Mr. Beaver actually hurt his knee which required extensive medical care and arthroscopic surgery.
The fraud was uncovered after Beaver and his attorney turned down a $110,000 offer to settle the claim. A friend who knew of the fraud felt Beaver was cheating the resort and turned him in.
See Staged accident at ski resort leads to theft conviction and Resort employee convicted of grand theft for faking fall.
Sentencing is scheduled for August 22, 2008. The resort claims the medical care and legal fees are in excess of $65,000 and are asking for that in restitution from Beaver.
Hilton Hotel does not need a warning sign
Posted: July 17, 2008 Filed under: Assumption of the Risk, Wisconsin | Tags: Appellate Court, Business Services, Hilton, Lilly Pad, Marcus Corporation, Milwaukee, Signage, Trial court, Warning sign, Waterpark, Wisconsin Leave a commentSigns, signs, everywhere there’s signs*, except at the Lily Pad Walk at the Hilton Milwaukee Center. Briane Pagel Jr. and his family sued the Hilton Milwaukee Center which is or has a waterpark on its premises. Mr. Pagel had been injured when he fell off the lily pad walk.
The lily pad walk is a series of large floating vinyl pads. There is an overhead net someone can grab to assist their walk or stop their fall. Mr. Pagel tried the walk and fell into the water. Then he tried again, falling and injuring his back.
Mr. Pagel claimed the hotel should have posted warning signs. The trial court judge dismissed the case and awarded the hotel their costs of $1,394. The appellate court agreed, stating the dangers were open and obvious to the reasonable user and not warning or signs were required.
*Apologies to Tesla and the song Signs
Pagel v. Marcus Corporation, 2008 Wisc. App. LEXIS 423
Litigation v. Jail Time
Posted: July 9, 2008 Filed under: Criminal Liability | Tags: Aviation, Concorde, Continental, Continental Airlines, France, United Airlines Leave a commentMany times I hear the argument that we need to adopt the European legal system. The belief is that the Europeans don’t sue, make it very hard to sue and that is a better system for defendants. That is correct; however the European system also has a little twist we don’t have in the US: Jail Time.
In Europe the requirements to start a lawsuit are very high and the types of things you can sue over are limited. However the requirements to be arrested and charged with a crime are low, are much broader and the level of proof to convict someone are much lower. Example of this is playing out in the US and France this week.
On July 25, 2000 a Concorde jet crashed in France killing all on board. On July 3, 2008 Continental Airlines and two Continental employees were charged in a French court with manslaughter. The crash was attributed to a piece of a Continental jet falling off as the jet was taking off. That piece of metal was run over by the Concorde jet causing a tire to blow out and the parts going into the engine causing the crash.
Here in the US, Continental might be sued for this type of thing. Maybe money would be exchanged, maybe. No crime would be charged because there was no scienter or “criminal mind.” No one was attempting or thinking about a crime, there was no criminal intent.
That is not required in Europe or France, where by the way you are guilty until proven innocent to some extent.
In most European countries there is a very different way of approaching problems. There the government is in charge of making the public safe. In realty, in our “Laissez-faire” business environment most businesses are kept in line by the threat of litigation. In Europe businesses are kept in line by the government who puts you in jail if you are not doing a good job, if you fall out of line.
For information on the charges against continental airlines see: Airline to be tried for Concorde crash and French court to try US airline over Concorde crash.
Laissez-faire by the way is a French term.
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