Indoor trampoline park company held liable for its actions in creating safety rules for its sub-groups creating liability for itself from the sub-group’s customers.

The parent company knew the employee handbook, which contained safety rules, which was given to the companies operating trampoline parks would be used to keep the customers of the parks safe. When the employee handbook was badly written, the parent company was liable to the injured plaintiff.

We have seen this before in Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. A second case will create greater concern and liability for actions of “safety” experts in the outdoor recreation industry.

Citation: Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

State: Arizona, United States District Court, D. Arizona

Plaintiff: Blake Haines

Defendant: Get Air Tucson Incorporated, et al

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses:

Holding: for the Plaintiff on the negligence claim and for the defendants on the Gross Negligence claim

Year: 2018

Summary

A prior company of some sort created safety rules in an employee handbook which were poorly written. The prior or parent company gave these rules to the trampoline parks to use. A plaintiff argued, successfully, the parent company was liable to him because the rules were poorly written, and the court agreed.

Third party contractors are increasingly brought into lawsuits because of their actions. The contractors are hired to decrease the risk to the customers, and the courts are holding when they fail, they are liable for their actions.

Facts

These facts on how the injury occurred, and the relationship between the parties came from a different decision in this case.

On September 8, 2013 Haines was at the Get Air Tucson indoor trampoline park and performed a move where he flipped multiple times off of a platform and into a foam pit. Haines “suffered catastrophic injuries from the maneuver, including fractured cervical vertebrae resulting in paralysis.” Following this incident, Haines filed suit in Pima County Superior Court on September 5, 2014 against the following defendants: Get Air Tucson, Inc.; Get Air Tucson Trampolines, LLC; Get Air Management, Inc.; Get Air, LLC; Trampoline Parks, LLC; Patti Goodell; Jacob Goodell; Kiersten Goodell; Scott Goodell; Alan McEwan Jr.; Val Iverson, individually and as owner or operator of Trampoline Parks, LLC; Jane and/or John Does #s 1-20; ABC Corporations 1-10; XYZ Partnerships 1-10; and ABC Limited Liability Corporations (LLCs) 1-10. Haines alleged claims for negligence, negligent design, negligence in safety standards, negligent supervision, negligent hiring and training of personnel, piercing the corporate veil, and punitive damages. Id.

There are three parties to this lawsuit. The plaintiff who was injured at the Defendant Get Air Tucson’s facility, Get Air Tucson and GALLC. GALLC was a former trampoline park that is no longer in business but seemingly a parent company?

GALLC created an employee handbook to be used by its clients (trampoline parks or franchisors). The plaintiff claims he was injured because of the “allegedly deficient safety rules contained in the Employee Handbook.” The handbook does not clearly define what a somersault is. The plaintiff was injured when he did a flip.

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson.

The case had been referred to a magistrate who created an order dismissing the gross negligence claims but keeping the negligence claims. That magistrate’s order was then reviewed, which is the decision this article is based on.

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH [employee handbook] as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. Judge Markovich found that summary judgment on the issue of a breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff.

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

The defendant GALLC argued it had no duty to the plaintiff.

In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported.

The court then reviewed how a duty was created and what the courts looked for in making that decision.

To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.

Whether or not a duty exists is a legal question to be determined by a court of law. A duty can arise if a special relationship exists between the parties or because of an “undertaking” of the defendant.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship.

So, the relationship alone between the plaintiff and GALLC was not enough to create a duty. However, the court did find a relationship because of GALLC’s attempt to create safety rules in the employee handbook for its customers.

However, even though there was no direct business-customer relationship, Plaintiff and GALLC, nevertheless, had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona’s case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

The Restatement (Second) of Torts states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

The court found that GALLC undertook to render services, the creation of the employee handbook, which contained safety rules, which were necessary to protect the customers of Get Air Tucson. Plaintiff alleged in its complaint that GALLC failed to exercise reasonable care for the creation of the safety rules, thus creating liability.

GALLC, failing to exercise reasonable care in developing the safety rules increased the harm to Get Air Tucson’s’ customers, like the plaintiff.

Additionally, the failure to perform a duty, development of reasonable safety rules, which Get Air Tucson owed to its customers, created liability.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

The court also found that there was a genuine issue of material fact because GALLC allegedly breached its duty to exercise reasonable care in the creation of the safety rules when the definition of a somersault which was used in the rules, and the definition was not clear. The issue was, did the actions of the plaintiff flipping constitute a somersault?

On top of that, when the manual or rules are not clear or are ignored, this creates greater liability on the companies involved.

Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, “as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults.

The court found GALLC was liable not because of its relationships between the parties, but because its actions constituted an independent undertaking that created a duty.

However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence.

So Now What?

Safety is always scary. How much do you write? If you don’t write enough, you don’t cover everything, and you could be found liable. If you write too much you don’t cover everything, and you are still found liable because either you did not cover the issue at hand, or you did not follow the rules you created.

You can’t follow the rules if the rules are too much to remember. You can’t handle an incident with a notebook in one hand trying to figure out what to do next.

Worse, you are a third party, and you inspect or write safety issues, and you are now liable to the customers of your customer who you were trying to protect. In Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry the defendant did an inspection of the property. The injured plaintiff argued the inspection was insufficient, and the defendant owed her a duty.

In this case the rules where insufficient, badly written, and seemingly not enforced, creating a duty to the injured plaintiff.

If you are an inspector or a rule writer, a third-party contractor hired to teach, inspect or write you had better to it correctly and completely. On top of that you better have a great liability insurance policy and contract with your client to protect you.

If you are a third-party contractor, expect to see more claims like this in the future.

What do you think? Leave a comment.

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Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640

Blake Haines, Plaintiff,

v.

Get Air Tucson Incorporated, et al., Defendants.

No. CV-15-00002-TUC-RM (EJM)

United States District Court, D. Arizona

October 19, 2018

ORDER

Honorable Rosemary Marquez United States District Judge.

Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).

I. Standard of Review

A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

II. GALLC’s Objection to Judge Markovich’s Report and Recommendation

As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.)[1] Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)

Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)

Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.

III. Discussion

As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.

A. Existence of Duty

“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.

Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.

In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.

The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

Restatement (Second) of Torts § 324A supports the existence of a duty in this case.[2] GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).

Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care, increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.

The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.

B. Breach

The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.

C. Liability of GALLC

Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).

IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.

—–

Notes:

[1] Record citations refer to the page numbers generated by the Court’s electronic filing system.

[2] Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).

—–


Arizona University did not owe student a duty of care during a study abroad program when the students organized an “off campus” trip, which resulted in a student’s death

Two different issues determine most outcomes in lawsuits against college & universities, whether the class was for credit or not and whether the incident occurred off campus or on campus.

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

State: Arizona, Court of Appeals of Arizona, Division One

Plaintiff: Elizabeth Boisson

Defendant: Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad

Plaintiff Claims: negligence

Defendant Defenses: no duty owed

Holding: for the defendant

Year: 2015

The deceased signed up for an international study abroad trip in China through the defendant university. While in China, the deceased and several other students organized a trip to Everest base camp. While at Everest base camp the deceased suffered altitude sickness and died.

From China, you can drive to the North Side base camp of Everest, which is at 19,000 feet.

During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

The trial court dismissed the plaintiff’s claims based on the defendant’s motion for summary judgment. This appeal followed.

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

The court first looked at the requirements to prove negligence in Arizona.

Although described in various ways, a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages.

Arizona uses a five-step test for negligence when most other states use a four-point test. The difference is Arizona expands the definition of proximate causation requiring an actual cause and a proximate cause to prove negligence.

Of the five steps, the first, whether or not there was a duty, is a decision that is made by the court.

The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Foreseeability is not an issue under Arizona’s law. Whether or not the defendant could foresee the injury to the plaintiff does not come into play when determining if a duty existed.

The court then looked at the duties owed by a college in Arizona to a student. Most duties arise when the relationships between the school and the student are custodial. Arizona does owe students a duty of reasonable care for on campus activities.

However, the duties owed for off-campus  activities by a university to a student are different.

Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.

This analysis has seven steps to determine the duty owed, if any, by an Arizona college.

…Arizona cases have identified the following factors in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, (2) whether the activity was part of the course curriculum, (3) whether the school had supervisory authority and responsibility during the activity, and (4) whether the risk students were exposed to during the activity was independent of school involvement. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus.

Here the trip was conceived and organized by the students. The students dealt with a Chinese tour company to make the arrangements. Not all the students in the study abroad program undertook the trip. The college offered no academic credit for the trip, and the trip was not in the curriculum of the program.

Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law.

The plaintiff hired an expert witness who stated that the university absolutely had a duty to the plaintiff. However, the court ignored the expert finding the determination of a duty was solely within the province of the court, and the expert witness’s opinion did not matter.

The trial court’s determination was upheld because the appellate court found that the school owed no duty to the deceased.

So Now What?

One important thing that parents seem to forget when their sons and daughters leave for college is not only are they leaving home, but they are also leaving any real supervision, custody or control. Colleges and universities are not baby sitters or parents and parents probably should be reminded of that fact.

Here, the effects were disastrous; however, the issues were clear. A group of students left campus to do something. Where campus is, did not matter and where the students went did not matter. Whether or not the effects of altitude on a student at 19, 000 did also not matter because the college did not arrange, run, manage or control the students.

What do you think? Leave a comment.

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Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Elizabeth Boisson, individually and on behalf of all statutory beneficiaries, Plaintiff/Appellant, v. Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad, Defendants/Appellees.

No. 1 CA-CV 13-0588

Court of Appeals of Arizona, Division One

236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

March 10, 2015, Filed

SUBSEQUENT HISTORY: Review denied by , , 2015 Ariz. LEXIS 348 (Ariz., Dec. 1, 2015)

PRIOR HISTORY: [***1] Appeal from the Superior Court in Maricopa County. No. CV2010-025607. The Honorable Douglas L. Rayes, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Knapp & Roberts, P.C., Scottsdale, By Craig A. Knapp, Dana R. Roberts, David L. Abney, Counsel for Plaintiffs/Appellants.

Garrey, Woner, Hoffmaster & Peshek, P.C., Scottsdale, By Shawna M. Woner, Stephanie Kwan, Counsel for Defendants/Appellees Arizona Board of Regents and State of Arizona.

Udall Law Firm, LLP, Tucson, By Peter Akmajian, Janet Linton, Counsel for Defendants/Appellees Nanjing American University, L.L.C., dba Yangtze International Study Abroad.

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.

JUDGES: THUMMA, Judge.

OPINION BY: THUMMA

OPINION

[*621] [**933] THUMMA, Judge:

P1 Elizabeth Boisson appeals from a judgment dismissing a wrongful death negligence claim arising out of the death of her son Morgan Boisson. The judgment was based on the ground that Defendants owed no duty to Morgan when, while studying abroad in China, he traveled to Tibet and died of altitude sickness. Finding no error, this court affirms.

FACTS1 AND PROCEDURAL HISTORY

1 The superior court struck supplemental filings relating to the summary judgment [***2] briefing and, on Elizabeth’s motion, struck portions of certain declarations filed by Defendants. Because the judgment is properly affirmed on other grounds, this court does not address these issues or the finding that there were no disputed issues of material fact. See Monroe v. Basis School, Inc., 234 Ariz. 155, 157 n.1 ¶ 3, 318 P.3d 871, 873 n.1 (App. 2014).

P2 Morgan was an undergraduate student at the University of Arizona, which is governed by the Arizona Board of Regents (ABOR). In the fall of 2009, Morgan and 16 other university students spent the semester studying in China at Nanjing American University (NAU). This study-abroad program, sometimes referred to as Yangtze International Study Abroad (YISA), was a collaborative effort between ABOR and NAU.

P3 While in China, the study-abroad program included school-sponsored trips to various cities in China with NAU faculty. At other times, the students organized their own trips. During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

P4 As relevant here, Elizabeth filed a complaint [***3] against the State of Arizona, ABOR and NAU (collectively Defendants), asserting a wrongful death negligence claim pursuant to Arizona Revised Statutes (A.R.S.) sections 12-611 to -613 (2015).2 After discovery, motion practice and oral argument, the superior court granted Defendants’ motions for summary judgment on the ground that Defendants “owed no affirmative duty of care to Morgan while he was a participant on the subject trip to Tibet.” After entry of judgment, Elizabeth timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, [*622] [**934] and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

2 Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

DISCUSSION

I. Duty In An Arizona Common Law Negligence Claim.3

3 Because the parties do not claim that any other law applies, this court applies Arizona law. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 501, 917 P.2d 222, 230 (1996).

P5 Although described in various ways, [HN1] a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007); Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983); Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979). “The first element, whether a duty exists, is a matter of law for the court to decide.” Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230 (citation omitted).

[HN2] The existence of a duty of care is [***4] a distinct issue from whether the standard of care has been met in a particular case. As a legal matter, the issue of duty involves generalizations about categories of cases. Duty is defined as an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.

Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted).

P6 As noted by the Arizona Supreme Court, pre-2007 case law addressing duty “created ‘some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.'” Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (citation omitted). Gipson, however, expressly held “that [HN3] foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in [***5] prior opinions.” 214 Ariz. at 144 ¶ 15, 150 P.3d at 231. Accordingly, foreseeability is not a part of the duty inquiry and those portions of pre-Gipson cases relying on foreseeability when addressing the issue are no longer valid.

P7 Although a duty can arise in various ways, Elizabeth argues: (1) the student-school relationship imposes a duty on Defendants here and (2) public policy imposes such a duty. [HN4] Recognizing the concept of duty is context dependent, Gipson indicates that duty may arise from the relationship between the parties or, alternatively, from public policy considerations. Gipson, 214 Ariz. at 145 ¶ 18, ¶ 23, 150 P.3d at 232; accord Monroe v. Basis School, Inc., 234 Ariz. 155, 157, 159 ¶ 5, ¶ 12, 318 P.3d 871, 873, 875 (App. 2014); see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”).

A. Duty Based On The Student-School Relationship.

1. Context Of The Duty.

P8 [HN5] “The student-school relationship is one that can impose a duty within the context of the relationship.” Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873. Arizona case law shows the duty most clearly applies in on-campus activities in the primary and secondary school context, where the relationship is custodial. Monroe, 234 Ariz. at 158 ¶ 9, 318 P.3d at 874. Arizona case law is less clear whether and to what extent the duty applies in off-campus [***6] activities in the primary and secondary school context. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41–42, 796 P.2d 470, 473–74 (1990) (holding school district owed duty to high school student injured in elementary school-created crosswalk); Collette v. Tolleson Unified Sch. Dist., No. 214, 203 Ariz. 359, 54 P.3d 828 (App. 2002) (holding school owed no [*623] [**935] duty to third party who was injured by high school student who left campus in violation of school policy).

P9 In the college and university context, courts in other jurisdictions “are split on whether a college owes an affirmative duty to its students.” Restatement (Third) of Torts: Physical and Emotional Harm § 40 Reporters’ Notes cmt. l (2012) (Restatement) (citing cases). [HN6] Arizona case law, however, indicates a college or university does owe its students a duty of reasonable care for on-campus activities. See Jesik v. Maricopa Cnty. Cmty. Coll. Dist., 125 Ariz. 543, 611 P.2d 547 (1980); see also Delbridge v. Maricopa Cnty. Cmty. Coll. Dist., 182 Ariz. 55, 58–59, 893 P.2d 55, 58–59 (App. 1994) (holding college owed duty to student for injury incurred during college class, even though college did “not have a permanent campus”). It is undisputed that the Tibet trip was not an on-campus activity.

P10 The parties have cited, and the court has found, no Arizona case addressing whether a college or university owes its students a duty of reasonable care for off-campus activities. Section 40(b)(5) of the Restatement, applied by the Arizona Supreme Court in a different context, imposes a “duty of reasonable care with [***7] regard to risks that arise within the scope of the relationship” for “a school with its students.” Restatement § 40(a), (b)(5).4 As framed by the parties, Restatement § 40 provides that a college or university may owe a duty to its student “to risks that occur while the student is at school or otherwise engaged in school activities.” Restatement § 40 cmt. l (emphasis added). No Arizona case has recognized a duty by a university or a college in any context comparable to this case. In addition, Restatement § 40, in its final form, was promulgated in 2012, meaning there is comparatively little guidance in construing “otherwise engaged in school activities.” Restatement § 40 cmt. l. This lack of authority is significant given that Elizabeth has the burden to show the existence of a duty. Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230.

4 In the common carrier context, Nunez v. Professional Transit Mgmt. of Tucson, Inc., applied Restatement § 40 Proposed Final Draft No. 1 (2007). 229 Ariz. 117, 121 ¶¶ 17–18 & n.2, , 271 P.3d 1104, 1108 & n.2 (2012); see also Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873 (citing Restatement § 40 in primary school context).

P11 [HN7] Recognizing that the existence of duty is a legal, not a factual, matter, Gipson cautioned against “a fact-specific analysis of the relationship between the parties” in determining whether a duty of care exists. Gipson, 214 Ariz. at 145 ¶ 21, 150 P.3d at 232 (considering whether duty existed in a case not involving a categorical relationship). Accordingly, [***8] this court does not look at “the parties’ actions” alleged to determine “if a duty exists.” Id. at 145 ¶ 21, 150 P.3d at 232. Instead, this court looks to the legal factors identified elsewhere to determine whether the Tibet trip was an off-campus school activity for which Defendants owed Morgan a duty of reasonable care. See Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 472–75 ¶¶ 10–18, 323 P.3d 753, 755–58 (App. 2014) (citing cases); Wickham v. Hopkins, 226 Ariz. 468, 471–73 ¶¶ 13–23, 250 P.3d 245, 248–50 (App. 2011) (citing cases); see also Monroe, 234 Ariz. at 157-59 ¶¶ 5-11, 318 P.3d at 873-75.

2. The Trip Was Not An Off-Campus School Activity For Which Defendants Owed Morgan A Duty.

P12 [HN8] In the college and university setting, duty is not governed by custody or in loco parentis concepts. Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“There comes a time when an individual must take it upon himself to be responsible for his own education and well-being. No person can be insulated against all the risks of living.”). Similarly, “[t]he scope of the duty imposed by the student-school relationship is not limitless.” Monroe, 234 Ariz. at 157 ¶ 6, 318 P.3d at 873. “[T]he duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.” Id. at [*624] [**936] 157–58 ¶ 6, 318 P.3d at 873–74 (citing cases and Restatement § 40(b)(5) cmts. f, l).

P13 In what are at best analogous [***9] contexts, Arizona cases have identified the following factors [HN9] in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; (2) whether the activity was part of the course curriculum, Delbridge, 182 Ariz. at 59, 893 P.2d at 59; (3) whether the school had supervisory authority and responsibility during the activity, id.; Monroe, 234 Ariz. at 161 ¶ 18, 318 P.3d at 877; and (4) whether the risk students were exposed to during the activity was independent of school involvement, Collette, 203 Ariz. at 365 ¶ 23, 54 P.3d at 834. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus. See 5 James A. Rapp & Jonathan M. Astroth, Education Law § 12.09[6][c] (2014) (citing cases).

P14 Applying these factors, the Tibet trip was conceived by exchange students who wanted to see Mount Everest, not for any NAU-related purpose. After doing some research, a student made arrangements directly with Tibettours, a Tibet-based tour company, which then set the itinerary, arranged trip details and served as a guide during the trip. Fourteen [***10] of the 17 study abroad students then went on the trip and paid Tibettours directly, or through the coordinating students. The trip, details of the trip and the cost of the trip were not part of the study-abroad program or any course curriculum, and no academic credit was awarded for the trip. At the students’ request, NAU student liaison Zhang Fan helped the students communicate with Tibettours and arrange flights, and also provided a letter, required by the Chinese government to secure required permits, stating the students were NAU students. At the students’ request, the professors agreed to allow the students to make up classes they missed if they participated in the trip. Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law. See Monroe, 234 Ariz. at 159 ¶ 11, 318 P.3d at 875; Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Rapp & Astroth, Education [***11] Law § 12.09[6][c] (citing cases).5

5 This does not mean that a university or college lacks a duty to protect its students for activities occurring off campus on property owned or controlled by the university or college, or for off-campus functions controlled or regulated by the university or college. See, e.g., Barkhurst, 234 Ariz. at 473–74 ¶¶ 12–14, 323 P.3d at 756–57 (discussing Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994)); accord Monroe, 234 Ariz. at 157–58 ¶ 6 n.2, 318 P.3d at 873–74 n.2 (citing Delbridge, 182 Ariz. at 59, 893 P.2d at 59).

P15 Elizabeth argues that the Tibet trip was a school activity because: (1) Defendants “knew that study-abroad programs pose dangers,” and issued students cell phones to “safeguard . . . [them] during their study-abroad program;” (2) 14 of the 17 exchange students participated in the trip; (3) Defendants let students make up the classes they missed during the trip and (4) the trip would not have been possible without Fan’s assistance.

P16 Defendants’ purported knowledge that participating in the study-abroad program would involve “risks not found in study at” the University of Arizona in Tucson does not help answer whether the trip was a school activity. See Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (rejecting foreseeability as factor in determining duty). Similarly, providing the students cell phones “with which they can contact faculty and staff to answer [***12] questions and solve problems day or night from any part of China” does not make the Tibet trip a school activity. And although many study-abroad students decided to go on the trip, some did not. Allowing [*625] [**937] classes to be made up at the students’ request similarly does not mean the trip was a school activity and the record suggests that students would have gone to Tibet even if it meant they could not make up classes they missed. Finally, it may be that the trip would not have been possible but for Fan’s assistance in response to the students’ request. That, however, does not mean Defendants owed Morgan a duty while on the trip. No authority cited holds the existence of a duty turns on whether a defendant made something possible. Indeed, such a rule would mean an almost unlimited number of individuals and entities could be found to have owed a duty here, including the airline that flew the students to Tibet, the manufacturer of that airplane and the provider of the airplane fuel. [HN10] Although a “but for” inquiry often is relevant in determining whether a plaintiff has shown causation after a duty and its breach are established, it does not address whether a duty exists. See id. at 145 ¶ 21, 150 P.3d at 232.

P17 Nor [***13] does Elizabeth’s reliance on 2007 and 2009 YISA brochures and an affiliation agreement between YISA and the University of Arizona alter the analysis. The substance of the 2009 brochure is not contained in the record. The description attributed to the brochure (“Additional Travel Opportunities,” noting “that students in past programs had visited Tibet”) does not make the trip here a school activity. Presuming the 2007 brochure applied to the Fall 2009 program, that document states: (1) “[i]ncluded in your program fee will be trips to important cities or sites in China;” (2) in addition, “students will have a week or more of time off to travel on their own” and (3) “[o]ur staff will help with all aspects of planning these trips throughout China.” That Defendants may have helped students plan “travel on their own” does not impose on Defendants a duty for the student-planned Tibet trip. Similarly, YISA agreeing to provide “student support services — translation assistance, travel planning, and emergency assistance” — does not impose upon Defendants a duty to protect students from harms in the student-planned Tibet trip.

P18 Elizabeth also argues on appeal that selected excerpts from ABOR’s internal [***14] code of conduct mean the Tibet trip was a school activity. Although Elizabeth cited this document in superior court to show that the exchange program was an ABOR-sponsored activity, she did not argue it established a duty. By not pressing that argument then, Elizabeth cannot do so now. See Fisher v. Edgerton, 236 Ariz. 71, 75 n.2 ¶ 9, 336 P.3d 167, 171 n.2 (App. 2014).6 Even absent waiver, Elizabeth has not shown how ABOR’s code of conduct — addressing “misconduct . . . subject to disciplinary action” and “the promotion and protection” of “an environment that encourages reasoned discourse, intellectual honesty, openness to constructive change and respect for the rights of all” at state universities — makes the Tibet trip a school activity imposing a duty on Defendants.

6 Similarly, Elizabeth alleged negligence per se in superior court based on ABOR’s internal code of conduct, but did not further develop that claim. See Fisher, 236 Ariz. at 75 n.2 ¶ 9, 336 P.3d at 171 n.2; see also Steinberger v. McVey, 234 Ariz. 125, 139 ¶ 56, 318 P.3d 419, 433 (App. 2014) (noting negligence per se claim “must be based on a statute enacted ‘for the protection and safety of the public'”) (citation omitted).

P19 Finally, Elizabeth relies on the opinions of Dr. William W. Hoffa, her “standard of care” expert, who took the position that study-abroad programs should categorically owe a duty to students [***15] throughout all aspects of the program. But the question of whether a duty exists is an issue of law for the court to decide, not experts. Badia v. City of Casa Grande, 195 Ariz. 349, 354 ¶ 17, 988 P.2d 134, 139 (App. 1999) ( [HN11] “The issue of whether a duty exists is a question of law for the court, unaffected by expert opinion.”); see also Monroe, 234 Ariz. at 157 ¶ 4, 318 P.3d at 873 (existence of duty “is a matter of law for the court to decide”) (citing Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230). Moreover, as Elizabeth concedes, Dr. Hoffa’s testimony goes to the standard of care and other issues that are premised on the existence of a duty. See Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted). Accordingly, Dr. Hoffa’s opinions do not resolve the question of whether a duty exists.

[*626] [**938] P20 For these reasons, the superior court properly concluded that the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty.

B. Duty Based On Public Policy.

P21 In discussing whether public policy should recognize a duty here, Elizabeth

cites no public policy authority, and we are aware of none, supporting a general duty of care against harm away from school premises, absent a school-supervised activity or a particular statute. To hold otherwise would imply that the student-school relationship extends to situations where the school lacks custody [***16] over the student and the student is not participating in a school-sponsored activity. We decline to define the scope of duty in such broad terms.

Monroe, 234 Ariz. at 161 ¶ 20, 318 P.3d at 877. For these reasons, Elizabeth has not shown that public policy considerations result in Defendants owing Morgan a duty for the Tibet trip.

II. Other Issues On Appeal.

P22 Having found Defendants did not owe Morgan a duty for the Tibet trip, this court affirms the judgment and need not address the other issues raised on appeal. ABOR’s request for taxable costs on appeal is granted contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

P23 The judgment in favor of Defendants is affirmed.


Travel agents have a very limited duty to disclose, unless they know about a hazard. If you book for others, you are a travel agent.

College students on break to Mexico on a “party train” fell between the cars. Decedent was the 4th student to fall which gives rise to the liability of the travel agent. This is an early Arizona case voiding releases also.

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

State: Arizona

Plaintiff: Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer

Defendant: Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X

Plaintiff Claims: Negligence, violation of the Arizona Consumer Fraud Act,

Defendant Defenses: No duty and release

Holding: For the Plaintiff

Year: 1994

The defendant is a travel agency that specialized in college tours. These college tours are more famously known for taking students south of the boarder during breaks to party where the age to drink is lower and so is about everything else.

One of these tours included an eighteen hour train ride known as the “Party Train.” The plaintiff and a friend decided to move forward and investigate the engine. Between the cars were extensions between the cars were covered with some sort of plate. However the last passenger car had not extension and no plate extending back from the freight car or engine. The plaintiff stepped off and fell from the train to her death.

The plaintiff was the fourth student to die this way on a tour organized by the defendant, although the particular incidents leading to the student deaths were slightly different.

The decedent’s parents sued the travel agency for themselves and representing the estate of the deceased. The trial court dismissed the case because there was no duty of care owed to the plaintiff by the defendant travel agent.

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

The court started its analysis by looking at the duty owed by the defendant as a travel agent.

(1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours.

The defendant argued that because it could not control the train and had no knowledge of the specific condition leading to the decedent’s death the travel agent had no duty to the plaintiff.

Duty is an issue of law and as such the courts decide whether or not there was any duty. Juries apply the facts to the law.

Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.”

If the court decides no duty exists then no trial is held. No duty, no negligence. However the appellate court saw the existence of a duty differently from the trial court which stated there was no duty.

The court concluded the relationship between the decedent and the defendant was like an agency, since the defendant was a travel agent.

Different occupations owe different duties to their guests, customers, clients, patrons or consumers. The court set out the duties of a travel agent under Arizona law, which included a duty to disclose. “These duties include the duty to disclose material dangers known to the agent.” This duty “…does not represent an extension of tort liability upon an agent it results from an exposition of the pre-existing duty of care owed a principal by his agent.”

That duty requires the travel agent to disclose information the traveler would like to know.

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.

That duty appears to be wide open as well as trap. What the traveler wants to know is usually unknown until communicated by the traveler to the agent. However, “The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance.”

However the fact the travel agent does not know what the traveler wants to know is a bar to their duty to disclose. “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.”

The court concluded that a jury must decide whether or not three other students had died on that train was something the deceased wanted to know.

The plaintiff’s also sued claiming violation of the Arizona consumer fraud act. The omission of the other deaths violated the act.

Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby.

The act defined merchandise to include services. The trial court found that death was not related to the information contemplated by the act to be disclosed. Again the appellate court found differently.

The final issue was whether or not a release was in existence and valid.

The itinerary contained a paragraph stating the defendant waived liability. There was also an invoice for the trip with the same release language as on the itinerary. The decedent acknowledge in her payment for the trip that she had “read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions.”

The trial court denied the validity of the release and the appellate court agreed. “Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.”

The appellate court agreed and stated: “Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage carelessness.””

The court also quoted Restatement (Second) of Agency § 419 (1957), and found the lack of the disclosure of the other deaths also violated the requirements for the release to be valid.

…such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

The appellate court then sent the case back for trial.

Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial.

So Now What?

Duties owed to your customer, consumer or guests vary based on the occupation of the defendant. You need to make sure you understand those duties. More importantly, you need to make sure you understand your classification or job description.

Many outfitters and guides as well as college and university programs book for third parties. College’s book trips, outfitters and guides will book for their competitors when their trips are full. This changes their duties because their relationship with the client has changed.

This case also provides another way that releases can be void and reinforces a common way. Any time the court can find a failure to disclose a release will be void. Courts in the way past would use the argument that a release should be void because it encourages defendants to be careless leading to injuries.

Arizona courts have slowly chipped away at the defense of release for several decades. Unless the activity is protected by statute, the courts have found easy and unobtrusive ways to void releases. Not enough to ring alarm bells, but each time, enough to void the release.

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

 

 

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Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Plaintiffs/Appellants, v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X, Defendants/Appellees. Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Cross-Appellees. v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Anton Cerkvenik and JANE Doe Cerkvenik, husband and wife. Cross-Appellants.

2 CA-CV 93-0175

COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT B

181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

May 17, 1994, Filed

SUBSEQUENT HISTORY: [***1] Petition for Review Denied December 20, 1994.

PRIOR HISTORY: APPEAL FROM THE SUPERIOR COURT OF MARICOPA COUNTY. Cause No. CV 91-17422. Honorable J. Kenneth Mangum, Judge, Honorable Sherry H. Hutt, Judge.

DISPOSITION: REVERSED IN PART AFFIRMED IN PART

CASE SUMMARY:

COUNSEL: Treon, Strick, Lucia & Aguirre, by Arthur G. Newman, Jr. and Richard T. Treon, Phoenix, Attorneys for Plaintiffs/Appellants/Cross-Appellees.

Teilborg, Sanders & Parks, P.C., by Brian R. Burt and Rick N. Bryson, Phoenix, Attorneys for Defendants/Appellees/Cross-Appellants.

Jennings, Kepner and Haug, by James L. Csontos, Phoenix, Attorneys for Defendants/Appellees Dennis Anderson.

JUDGES: JAMES D. HATHAWAY, Judge, WILLIAM E. DRUKE, Chief Judge, PHILIP G. ESPINOSA, Presiding Judge.

OPINION BY: JAMES D. HATHAWAY

OPINION

[**70] [*295] OPINION

HATHAWAY, Judge.

In this action for the wrongful death of their daughter Molly, plaintiffs/appellants Maurers appeal from the trial court’s grant of summary judgment in favor of defendants/appellees Cerkvenik-Anderson Travel, Inc., College Tours, Dennis Anderson and Anton Cerkvenik (collectively, “CA”) on the basis that CA had no duty to Molly regarding the tour package she purchased. CA cross-appeals [***2] the court’s denial of summary judgment sought on the basis of waiver or release from liability and its refusal to award attorney’s fees. We reverse summary judgment as to appellants and affirm as to CA.

2 FACTS

Viewing the evidence in the light most favorable to the non-moving party, Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982), the facts are as follows. CA is a travel agency doing business as “College Tours.” Its business includes organizing, promoting, selling and operating student vacation tours destined for Mazatlan, Mexico. CA sets the itinerary, arranges for transportation and lodging and provides information relating to the students’ comfort, convenience and safety on the tour. For many years, the tour packages have included an eighteen-hour ride on a Mexican train traveling from Nogales to Mazatlan, as was the case with the tour purchased by the decedent. CA described this as a “Party Train.”

During the train ride from Nogales to Mazatlan, Molly and a friend decided to “adventure” forward in the trainto see the engine. The connecting areas between passenger railcars have metal floors with accordion-like “boots” extending from the [***3] sides of each railcar, forming an area in which it is safe to walk from the door at the end of one railcar to the door at the end of the other. En route, Molly paused and attempted to communicate in Spanish with an apparent employee of the railroad before going through a door, which turned out to be the front door of the foremost passenger car of the train. The car in front of this car was either a freight car or the engine. There was only a partial “boot” between the front of this car and the car in front of it. Beyond the door was only a narrow platform and then a large area between the cars, up to four feet wide, open straight down to the tracks and wheels of the train. It was dark, and after Molly stepped through the door, she fell to her death between the cars.

Molly was the fourth student to die by falling from a moving train on a student tour to Mazatlan organized by CA. Three other students had died previously, albeit the particular circumstances of each incident varied. The students on Molly’s tour were not informed of these prior incidents eventhough CA acknowledges that it “knew of other deaths on Mexican trains.”

[**71] [*296] DUTY OF TRAVEL AGENTS/TOUR OPERATORS

[***4] Appellants contend that CA had a duty (1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours. CA counters that it had no such duties as a travel agent, it lacked the right to control the train to make it safe, and it had no knowledge of the specific condition which caused Molly’s death.

[HN1] The existence of duty is an issue of law for the court to decide, Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985), not to be confused with details of conformance with a standard of conduct imposed by the relationship. Ibid. 146 Ariz. at 355, 706 P.2d at 367; see also, Lasley v. Shrake’s Country Club Pharmacy, Inc., 1994 Ariz. App. LEXIS 58, 162 Ariz.Adv.Rep. 10 (App. April 5, 1994). Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. [***5] “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.” W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 at 356 (5th ed. 1984). “If the court decides that no duty exists, then a trial is unnecessary.” Lankford & Blaze, The Law of Negligence in Arizona at 11 (1992). In this case, the trial court concluded that a trial was unnecessary because “no duty was owed by [CA] to [appellants’] decedent for the injuries which led to her death.” We disagree.

To conclude there is “no duty” is to conclude the defendant cannot be liable, no matter the facts. As the supreme court observed in Markowitz: “To postulate that the possessor of land has no duty at all to protect its invitees or warn of specific types of danger is to postulate that it can never be liable, no matter what the circumstances.” 146 Ariz. at 357, 706 P.2d at 369. The court asked the poignant question: “Would the state have been liable even if the park ranger, knowing of the hazard, had sat on the rock, watched David get ready to dive and said nothing?” Id. at 356, 706 P.2d at 368.

Adapting that query [***6] to the instant case, we believe an affirmative answer as to CA’s responsibility is compelled under principles governing agency relationships. As an Oklahoma court well summarized in Douglas v. Steele, 816 P.2d 586, 589 (Okla.App. 1991):

[HN2] An agent who handles travel and vacation plans is a special agent of the traveler for purposes of that one transaction between the parties. … And this is so even though the agent’s compensation may be paid by the company to whom she steers the business, much like an advertising agent….

[HN3] [The travel agent has] a duty to act with the care, skill and diligence a fiduciary rendering that kind of service would reasonably be expected to use…. This agency relationship also imposes a duty to promptly communicate to [the] principals confirmations and all other relevant information about the proposed travel plans and tours which would help them protect themselves from harm or loss.

(Citations omitted.) These duties include the [***7] duty to disclose material dangers known to the agent. See Tracy A. Bateman, Annotation, “Liability of Travel Publication, Travel Agent, or Similar Party for Personal Injury or Death of Traveler,” 2 A.L.R. 5th 396 (1992). This duty to disclose or warn of known dangers, as the court explained in Rookard v. Mexicoach, 680 F.2d 1257, 1263 (9th Cir. 1982), “does not represent an extension of tort liability upon an agent[;] it results from an exposition of the pre-existing duty of care owed a principal by his agent.” See also In re Swartz, 129 Ariz. 288, 294, 630 P.2d 1020, 1026 (1981) (agent’s duty to make full disclosure to principal of all material facts relevant to agency is fundamental to fiduciary relation); Walston & Co. v. Miller, 100 Ariz. 48, 410 P.2d 658 (1966); Restatement (Second) of Agency § 381 (1957), states the duty thusly:

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire tohave and which can be communicated [**72] [*297] [***8] without violating a superior duty to a third person.

The travel agent’s duty to disclose is not without limits, however. The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance. A travel agent is not an insurer, nor can he be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel. Nonetheless, it does not follow that because a travel agent cannot possibly presage all dangers, he should be excused entirely from his fiduciary duties toward his principal to warn of those dangers of which he is aware, or should be aware in the exercise of due care.

Rookard, 680 F.2d at 1263. [HN4] “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.” United Airlines, Inc. v. Lerner, 87 Ill.App.3d 801, 43 Ill. Dec. 225, 410 N.E.2d 225, ___, 43 Ill.Dec. 225, ___, 410 N.E.2d 225, 228 (1980);Restatement (Second) of Agency, § 381 (1957).

[***9] In this case, because of the duties existing through the agency relationship, the trial court erred in ruling otherwise.

CONSUMER FRAUD ACTION

Appellants contend that CA violated the Consumer Fraud Act (Act), A.R.S. § 44-1521, et seq., by omitting material facts and making misrepresentations to Molly in selling and promoting its tours. [HN5] A private right of action exists for breach of the Act. Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974). [HN6] Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby, A.R.S. § 44-1522(A) [***10] . The term “merchandise” includes “services.” A.R.S. § 44-1521(5). Accordingly, CA can be held liable for misrepresentations and “concealment, suppression or omission” of any material fact in selling its services.

Appellants contend the trial court evidently held, death, as a matter of law, is not a type of damage for which a private right of action may be brought under the Act. Appellants point out that they have found only one case in the nation that has considered the question. Duncavage v. Allen, 497 N.E.2d 433, 147 Ill.App.3d 88, 100 Ill.Dec. 455 (1986) (claim held to have been stated in suit against landlord for consumer fraud act violation for death of tenant based on representations and omissions about building safety.)

Appellants argue that no policy reason exists to exclude death as an injury for which a private action for damages may be brought under the Act when the omission of material information about safety has caused the death of the purchaser. They also contend that such a view is consistent with Arizona decisions in which the omission of information one has a duty to disclose causes death. See, e.g., Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d 1040 (1990) [***11] (trial court erred in ruling that motel owner owed no duty to disclose information about earlier presence of robber to independent contractor security guard who was later shot and killed by robber.) Moreover, appellants contend that neither the Act nor the cases interpreting it exclude death caused by a breach of the Act; rather, the cases have considered as an element of the cause of action the general “consequent and proximate injury” to the victim. See, Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 591 P.2d 1005 (App. 1979).

Finally, appellants argue that if a private right of action had not been recognized in Arizona, the statute is the sort the violation of which would have been treated as negligence per se and that death is a cognizable injury within the scope of an action for negligence per se. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). They persuasively conclude that, “recognition of a private [**73] [*298] right of action should not reduce the relief that would … otherwise have been available under negligence per se without the private right of action.” We agree.

We do not find any basis for an [***12] exemption when the damage resulting from the alleged violation is death. Accordingly, the trial court erred in granting summary judgment as to appellants’ claim under the Consumer Fraud Act.

CROSS-APPEAL ON CONTRACTUAL

RELEASE/WAIVER OF LIABILITY

CA contends in its cross-appeal that even assuming the existence of a duty, summary judgment against appellants must be affirmed because Molly released and/or waived any claim against them for any acts or omissions that led to her death. This issue has been raised both in the cross-appeal and as a cross-issue on appeal.

Molly’s itinerary contained the following provision:

XV. Terms and Conditions

… The purchaser releases and absolves College Tours from all liability for property loss or damage, caused and/or from all damages resulting in death or personal injury, loss of services, which may be sustained on account of, arising out of or while engaged in said trip, whether due to its own negligence or otherwise.

(Bold in original) The itinerary also contained a paragraph expressly entitled “Waiver of Liability.” This provision was set out separately from the other paragraphs in the itinerary and provided:

[***13] The students and the students [sic] relatives hereby waive any [sic] or liability for property damage, or personal injury, or death (Including the loss of services), which may be sustained by any student on account of, arising out of, or while engaged in said trip unless claimant establishes that the person or entity, versus whom the claim is made, violated the law or was guilty of a willful injury. Any alleged violation of law or willful injury must be the direct cause of the injury complained of; otherwise, the student and anyone making a claim as a result of any injury, damage or death to said student, hereby waives any such claim. All potential claimants hereby acknowledge that there are other means and tours available to visit Mexico or Hawaii and the student is not in an inferior bargaining position and thus freely accepts the responsibility contracted for herein. Each client has the right to choose to attend or not attend any event provided by College Tours and does so at their own discretion.

(Bold in original) Molly received an invoice form that also contained a “Waiver of Liability” provision virtually identical to that contained in the itinerary. [***14] It also contained a certification that the customer had read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. A copy of the invoice was returned to CA with Molly’s final payment for the trip.

In denying the defense motion for summary judgment on the release/waiver issue, the trial court explained:

This Court does not find waiver to be a valid defense to Plaintiffs’ claims. read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. Because the danger being waived was so specific and obvious in Valley National Bank v. National Assoc. for Stock Car Auto Racing, Inc., 153 Ariz.App. [sic] 374, 736 P.2d 1186 (App. 1987), that Court allowed the waiver to defeat Plaintiff’s claims. Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.

We find merit in the trial court’s distinction. Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage [***15] carelessness.” Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 382, 694 P.2d 198, 212 (1984).

[HN7] While an agent may be discharged from liability by an effective release, Restatement [**74] [*299] (Second) of Agency § 419 (1957), such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial. Accordingly, the court’s order denying CA’s Motion to Dismiss/Motion for Summary Judgment on waiver/release grounds [***16] is affirmed.

Reversed in part; affirmed in part.

JAMES D. HATHAWAY, Judge

CONCURRING:

WILLIAM E. DRUKE, Chief Judge

PHILIP G. ESPINOSA, Presiding Judge


Walnut Canyon National Monument celebrating its 100th Anniversary this Summer. Great Place for a Picnic

Celebrate Walnut Canyon National Monument’s 100th Anniversary with a Summer Picnic

FLAGSTAFF, ARIZONA – As part of the yearlong celebration of Walnut Canyon National Monument’s 100th anniversary, the Natural and Cultural Resources staff will host a summer picnic. Please join us for this family friendly event on Sunday, June 21, 2015 featuring special talks and tours highlighting the unique resources of Walnut Canyon National Monument. Whether you are a frequent visitor or it is your first time, this will be an excellent opportunity to meet with park biologists, ecologists, and archeologists to learn about Walnut Canyon National Monument.

Regular entrance fees apply. The entrance fee is $5.00/person for visitors 16 and over. America the Beautiful Passes are honored and sold. There is no additional fee for this event.

Reservations are required for the picnic. Please contact Lisa Leap at 928-526-1157 ext. 222. Picnic space is limited. Sign up for the various talks will occur on site.

Walnut Canyon’s Summer Picnic at the visitor center, Sunday, June 21, 2015

· -11:00 am -3:00 pm
· -Participants must bring their own food and beverage. Dessert will be provided.
· -Featured talks and tours will begin immediately after lunch. They will include:

o Ranger Cabin and CCC boundary fence

o Archeology along the Island Trail

o Archeology along the Ranger Ledge Trail

o Architectural styles at Walnut Canyon

o Bird watching and wildlife tracking/identification

o Plant identification and Ponderosa Pine

· -Picnic area is wheelchair accessible as are several of the tours.
· -Family friendly event.
· -Wear comfortable shoes/clothing; don’t forget your sun protection, extra water, and camera!

Event location

Walnut Canyon National Monument is located approximately 7.5 miles (12km) east of Flagstaff on I-40; take Exit 204, and head south. The Walnut Canyon Visitor Center is located at the end of this 3 mile road. Information can be obtained from (928)526-3367 and on the web at www.nps.gov/waca.

www.nps.gov

About the National Park Service: More than 20,000 National Park Service employees care for America’s 406 national parks and work with communities across the nation to help preserve local history and create close-to-home recreational opportunities. Visit us at www.nps.gov, on Facebook www.facebook.com/nationalparkservice, Twitter www.twitter.com/natlparkservice, and YouTube www.youtube.com/nationalparkservice.

WACASummerPicnic_Final 6-2-15.pdf


Grand Canyon Gondola Project seems to be Derailed

Grand Canyon Trust
Hello Friends,Good news! Years of fighting a well-funded campaign to build a mega resort and tramway on the Grand Canyon’s east rim have finally paid off.Save the Confluence family members and Navajo citizens opposed to the proposed “Escalade” development are celebrating. Escalade’s promoters are no longer employed in the executive office of the Navajo Nation.

On May 12, Navajo President Russell Begaye took office. The next day he issued a firm statement against Escalade. Begaye’s vice president, Jonathan Nez, added “any attempts to pass legislation to proceed with the development would be vetoed by the president.”

Save the Confluence family members expressed relief and thanked the new leaders for ending their “nightmare” under the Ben Shelly administration: “We believe ‘the two mighty’ rivers, the Colorado and the Little Colorado, have spoken.” They concluded that “while the president’s stance is being recognized as good and welcome news, we will remain cautious of the Navajo Nation Council.”

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As you know, protecting the Grand Canyon requires constant vigilance. The Forest Service is currently seeking public comments on whether to pave the way for a large subdivision and several million square feet of retail space near Tusayan, within half a mile of Grand Canyon National Park. You have until June 2, 2015 to comment.

The Grand Canyon Trust pledges our ongoing assistance to Save the Confluence families and efforts to permanently protect the confluence and Grand Canyon from inappropriate development.

Thanks to all for your enduring support to Keep the Canyon Grand.

With gratitude,

Roger Clark

Grand Canyon Program Director

P.S. Your donations make this work possible. Make a gift today.

Photo courtesy of Jack Dykinga


Comments Needed to Stop Development at the Grand Canyon South Rim & Loss of more Water

How to comment

The scoping process for the town of Tusayan’s roadway and utility easement application will run through June 2. To submit a comment online visit comments-southwestern-kaibab with “Tusayan Roadway Easements” in the subject line.

The Forest Service also will hold three public scoping meetings:

  • May 18 from 5 p.m. to 8 p.m. at Williams Elementary School Auditorium, 601 N. 7th Street, Williams
  • May 19 from 5 p.m. to 8 p.m. Grand Canyon Squire Inn, 100 Highway 64, Tusayan
  • May 20 from 5 p.m. to 8 p.m. Doubletree Hotel, 1175 Route 66, Flagstaff

or

you can write to:

Michael Williams, Forest Supervisor

Kaibab National Forest

Williams Ranger District

742 S Clover RD

Williams, AZ 86046

Your own comments are usually better than a talking points form letter. I would suggest you express your concerns about impacts on the GC National Park, including but not limited to night sky, water, wildlife, traffic. You might question the need for such a project as well as better definitions of the scope of the project beyond the easements.

The cumulative effects should be considered. Irreparable and irreversible damage could be done with out a complete and thorough EIS. Insist on one.

Naturally, you will want to comment on the national and international significance of the Grand Canyon Canyon .

Your comments thoughts and frustrations will not be considered if you do not make them formally known.

For those in the area, try to attend one of the public scoping meetings. If you do attend and do comment at more than one meeting, do not repeat yourself, alter your presentation.

 


Commercial Summer Fatalities: 2014

Our condolences to the families of the deceased.

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

Whitewater fatalities are light blue

Medical fatalities are light red

This is up to date as of July 1, 2014

If this information is incorrect or incomplete please let me know. Thank You.

Date

State

Activity

Where

How

Outfitter or Guide Service

Sex

Home

Age

Source

Source

5/28

AZ

Whitewater Kayaking

Colorado River, Grand Canyon, Badger Rapid

Did not right his kayak

 

M

 

43

http://rec-law.us/SVpdfb

 

6/3

AZ

Whitewater Rafting

Colorado River, Grand Canyon

Allergic reaction

 

F

Seattle, WA

54

http://rec-law.us/1l4xk4K

 

6/7

CO

Whitewater Rafting

Clear Creek

Fell out of raft, possible respirator problems

 

M

Brighton, CO

41

http://rec-law.us/1uEp3Fc

http://rec-law.us/1rafOwq

6/10

CO

Whitewater Rafting

Arkansas River, Salt Lick

boat flipped or dump trucked

Royal Gorge Rafting

M

Enid, OK

48

http://rec-law.us/1spBsRI

http://rec-law.us/1niITC2

6/14

CO

Whitewater Rafting

Arkansas River, Royal Gorge

respiratory problems before he and five other rafters were tossed out

 

M

Colorado Springs, CO

44

http://rec-law.us/1nl63ZF

http://rec-law.us/1lXMEAj

6/16

CO

Whitewater Rafting

Roaring Fork river

Fell out of raft

Blazing Adventures

M

Denver, CO

44

http://rec-law.us/1lB7jey

 

6/27

ID

Whitewater Rafting

Salmon River, The Slide

Ejected from raft

Epley’s Whitewater Adventure

M

Poulsbo, WA

50

http://rec-law.us/1x79IAj

http://rec-law.us/1qPcLds

Several of the water fatalities can be medical. A sudden full body cold water immersion can cause vasoconstriction in the hear resulting in death. See the Wikipedia listing Cold shock response.

If you are unable to see this graph, please email me at Rec-law@recreation-law.com and I will send you a PDF of the page.

What do you think? Leave a comment.

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

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

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

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Sad, Arizona school insurance no longer covering ropes courses.

Ropes courses are being torn down across the state because they can’t be insured

You can say bad attorneys, lousy program, bad instructors, freak accident. But the ropes course or challenge course industry is heading into the history books in Arizona. A lawsuit in Arizona against a public school will force all ropes courses in Arizona Public Schools to be removed.

Because of an accident in Tucson that forced the Arizona schools’ insurance company to pay out millions in a settlement, all ropes courses in Arizona must be removed from school property. Payson installed the ropes course with a federal grant.

In the past ten years I’ve found the following payouts due to ropes courses.

2008

$400,000

Sutter County California School District

Improperly tied into the course

2009

$4,700000

Alpine Towers International

Improper equipment and failure to train

$5.1 million in what we know about. Who knows how much has not been made public or settled.

And what really sucks about all this is ropes courses are not dangerous.

SeeRopes Course To Come Down

For more info on Ropes Courses & Litigation see:

Payouts in Outdoor Recreation                                                                             http://rec-law.us/121q2k2

Architects, Engineers and Recreation, we need the first two, to be successful in the second     http://rec-law.us/1gOSNeT

Assumption of the risk is used to defeat a claim for injuries on a ropes course       http://rec-law.us/SDZlBt

Based on the article yes there was going to be a lawsuit                                 http://rec-law.us/16JD0p3

Plaintiff raised argument in work/team building situation that they were forced to sign release  http://rec-law.us/XiKRug

Plaintiff uses standards of ACCT to cost defendant $4.7 million                   http://rec-law.us/11UdbEn

The standard of care for a ropes or challenge course changes based on who is running it and who is using it (30)                                                                                                               http://rec-law.us/L2tupe

$400,000 challenge course settlement for shattered ankle                             http://rec-law.us/1lk77Q7

When did journalism turn from telling a good factual story to trying to place blame for an accident?            http://rec-law.us/1cNrxMv

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Email: Rec-law@recreation-law.com

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

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Ropes Course, Challenge Course, Arizona, Arizona Public Schools, Payson Unified School District, PUSD,

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Business Opportunity Announced for Hospitality Contract on South Rim of Grand Canyon National Park

Feel like entertaining a million people a year? Read on!

Grand Canyon National Park Superintendent Dave Uberuaga has announced the availability of a prospectus for a business opportunity in the park, to provide lodging, food services, retail, transportation, mule rides, and other services on the South Rim.   This prospectus, similar to one announced on August 6, 2013, outlines the business opportunity, describes the existing business, and provides details on how to submit a responsive proposal.

The new 15 year contract is one of the largest in the National Park Service (NPS) in terms of revenue and lodging inventory. The services required in this prospectus have generated an average of approximately $66 million in gross revenues annually.

This historic lodging and hospitality contract (CC-GRCA001-15) will include lodging, retail and food service in the historic Grand Canyon Village including the El Tovar, Bright Angel Lodge, Thunderbird and Kachina Lodges, Maswik Lodge and Phantom Ranch, as well as retail and food service at Hermits Rest.  It will also continue to include transportation services such as bus tours, taxi service and mule rides. 

The historic Desert View Watchtower, which is currently operated as a gift shop, will be transferred to the NPS and will remain open to the public.

Concessions contracts are developed and issued under the authority of the Concessions Management Improvement Act of 1998, P.L. 105-391, and its attending regulations in 36 CFR §51. 

All interested parties are encouraged to apply and submit a responsive proposal to the prospectus. This new opportunity is being advertised on the Federal Business Opportunities web site, www.fbo.gov.  The prospectus is available online at http://www.concessions.nps.gov/prospectuses.htm.  To obtain a paper copy of the prospectus please contact Jennifer Parker at 303-969-2661303-969-2661.

Responsive proposals must be received by the Intermountain Regional Office by Monday, May 12, 2014.  For additional information, please contact Jennifer Parker, Chief of Concessions, Intermountain Region at 303-969-2661303-969-2661. 

What do you think? Leave a comment.

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

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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, NPS, National Park Service, Grand Canyon, Grand Canyon National Park, Concession Agreement, Mule Ride, El Tovar, Bright Angel Lodge, Thunderbird, Kachina Lodges, Maswik Lodge, Phantom Ranch, Desert View Watchtower,

 

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Arizona Ski Safety Statutes

Arizona Ski Safety Statutes

ARIZONA REVISED STATUTES

TITLE 5. Amusements and Sports

Chapter 7. Skiing

Article 1. General Provisions

Go to the Arizona Code Archive Directory

A.R.S. § 5-701 (2012)

§ 5-701. Definitions

In this chapter, unless the context otherwise requires:

1. “Base area lift” means a passenger tramway that skiers ordinarily use without first using another passenger tramway.

2. “Chair lift” means a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans.

3. “Competitor” means a skier actually engaged in competition or in practice for competition with the permission of a ski area operator on any slope or trail or portion of any slope or trail designated for competition by the ski area operator.

4. “Conditions of ordinary visibility” means daylight and, if applicable, nighttime in nonprecipitating weather.

5. “Inherent dangers and risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator. Inherent dangers and risks of skiing include:

(a) Changing weather conditions.

(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.

(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.

(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.

(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.

(f) Collisions with other skiers.

(g) The failure of skiers to ski within their own abilities.

6. “Passenger tramway” means a device used to transport passengers uphill on skis or in cars on tracks or suspended in the air by the use of steel cables, chains, belts or ropes, usually supported by trestles or towers with one or more spans.

7. “Rope tow” means a mode of transportation that pulls a skier riding on skis as the skier grasps the rope with the skier’s hands.

8. “Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state.

9. “Ski area operator” means any corporation, company, partnership, firm, association or other commercial entity, including a natural person, and its employees, agents, members, successors in interest, affiliates and assigns that have responsibility for the operations of a ski area.

10. “Ski Slopes and Trails” means those areas designated by a ski area operator for use by skiers for any of the purposes listed in paragraph 11.

11. “Skier” means a person using a ski area for the purpose of skiing or sliding downhill on snow or ice on skis, a toboggan, sled, tube, skibob or snowboard or any other device, using any of the facilities of a ski area, including ski slopes and trails, or observing any activities in a ski area as a sightseer or visitor.

12. “Surface lift” means a mode of transportation that pulls skiers riding on skis by means of attachment to an overhead cable supported by trestles or towers. Surface lift includes a J-bar, a T-bar, a platter pull and any similar device.

History: Last year in which legislation affected this section: 1997

§ 5-702. Posting passenger information signs

A. A ski area operator shall maintain a sign system with concise, simple and pertinent information for the protection and instruction of people on a passenger tramway.

B. A ski area operator shall prominently display signs that are readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime passengers, as follows:

1. At or near the loading point of each passenger tramway, rope tow and surface lift advising that any person not familiar with the operation of the tramway, rope tow or surface lift should ask ski area personnel for assistance and instruction.

2. In a conspicuous place at the loading area of each two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car.

3. In the interior of each car in a two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car and that gives instructions for procedures in the case of emergencies.

4. At all chair lifts stating the following:

(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (c) of this paragraph.

(b) “Keep ski tips up” or “keep tips up”, which shall be posted ahead of any point where skis may come in contact with a platform or the snow surface while a skier is seated in the chair lift.

(c) “Prepare to unload”, which shall be posted at least fifty feet ahead of the unloading area.

(d) “Remove pole straps from wrists”, which shall be posted where applicable.

(e) “Stop gate”, which shall be posted where applicable.

(f) “Unload here”, which shall be posted at the point designated for unloading.

5. At all rope tows and surface lifts stating the following:

(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (b) of this paragraph.

(b) “Prepare to unload”, which shall be posted at least fifty feet ahead of each unloading area.

(c) “Remove pole straps from wrists”, which shall be posted where applicable.

(d) “Safety gate”, “stay in tracks” or “stop gate”, which shall be posted where applicable.

(e) “Unload here”, which shall be posted at the point designated for unloading or where applicable.

C. At the operator’s discretion a ski area operator may post additional signs not required by subsection B.

D. Before opening a passenger tramway to the public each day, a ski area operator shall inspect the tramway for the presence of the signs required by subsection B or that are posted pursuant to subsection C.

E. The extent of the responsibility of a ski area operator under this section is to post and maintain the signs required by subsection B and to maintain any signs posted pursuant to subsection C. It is a rebuttable presumption that all passengers and skiers saw and understood the signs if evidence exists that the signs required by subsection B or that are posted pursuant to subsection C were posted and the signs were maintained.

History: Last year in which legislation affected this section: 1997

§ 5-703. Posting ski information signs

A. A ski area operator shall maintain a sign and marking system with concise, simple and pertinent information for the protection and instruction of skiers. The signs required by this section shall be readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime skiers.

B. A ski area operator shall place a sign that depicts and explains signs and symbols that skiers may encounter in the ski area in a position where all skiers who are proceeding to the uphill loading point of each base area lift will see the sign. The sign shall depict and explain at least the following signs and symbols:

1. A green circle and the word “easier”, which designates the least difficult ski slopes and trails of the ski area.

2. A blue square and the words “more difficult”, which designates the ski slopes and trails of the ski area that have a degree of difficulty between the least difficult and most difficult slopes and trails.

3. A black diamond and the words “most difficult”, which designates the most difficult ski slopes and trails of the ski area.

4. A figure in the shape of a skier with a band running diagonally from corner to corner of the sign with the word “closed” printed beneath the emblem.

C. If applicable, a ski area operator shall place a sign at or near the loading point of a passenger tramway that states one of the following:

1. If the tramway transports passengers only to the more difficult or most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘more difficult’ (blue square emblem) and ‘most difficult’ (black diamond emblem) slopes and trails only.”.

2. If the tramway transports passengers only to the most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘most difficult’ (black diamond emblem) slopes and trails only.”.

D. If a ski area operator closes a ski slope or trail or a portion of a ski slope or trail to the public, the operator shall place a sign notifying skiers that the slope or trail or portion of the slope or trail is closed at each identified entrance to the slope or trail or closed portion of the slope or trail. In lieu of placing a sign at each identified entrance, the ski area operator may close off the entrance with rope or fences.

E. A ski area operator shall place a sign at or near the beginning of each ski slope or trail that contains the appropriate symbol of the relative degree of difficulty of that slope or trail as set forth in subsection B. The requirements of this subsection do not apply to a ski slope or trail that is designated “easier” if a skier may substantially view the slope or trail in its entirety before beginning to ski the slope or trail.

F. A ski area operator shall mark the ski area boundaries that are designated on the trail map.

G. A ski area operator shall mark all ski lift tickets and season passes that the operator sells or makes available to skiers with the following in clearly readable print:

WARNING: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions, existing and changing snow surface conditions, surface or subsurface conditions, whether marked or unmarked, collisions with natural or man-made objects, whether marked or unmarked and the failure of skiers to ski within their own abilities.

H. A ski area operator shall post and maintain signs where ski lift tickets and ski school lessons are sold and in a location that is clearly visible to skiers who are proceeding to the uphill loading point of each base area lift that state the following in clearly readable print:

WARNING—IMPORTANT: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing. Some of these risks are listed on your lift ticket or season pass. Please review your ticket or pass and ask the ski area personnel for more information.

History: Last year in which legislation affected this section: 1997

§ 5-704. Additional duties of ski area operators

A. If maintenance equipment is being used to maintain or groom any ski slope or trail that a ski area operator has not designated as closed pursuant to section 5-703, subsection D, the ski area operator shall place a conspicuous notice at or near the beginning of the slope or trail and at any entrance points to the slope or trail that notifies skiers about the presence of the equipment.

B. All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following:

1. One lighted head lamp.

2. One lighted red tail lamp.

3. A red or orange flag that is at least forty square inches in size and that is mounted at least five feet above the bottom of the tracks.

C. A ski area operator has no duties to any skier who skis beyond the designated boundaries of the ski area.

History: Last year in which legislation affected this section: 1997

§ 5-705. Duties of skiers in any action against the ski area operator

In any civil action brought by a skier against a ski area operator, the duties of a skier shall be as follows:

1. At all times a skier has the sole responsibility to know the range of the skier’s own ability to negotiate a ski slope or trail and to ski within the limits of that ability. A skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing.

2. Before using a chair lift, passenger tramway, rope tow or surface lift, a skier shall have the knowledge and ability to safely load, ride and unload from the device.

3. A skier shall maintain control of the skier’s speed and course at all times when skiing and shall maintain a proper lookout to enable the skier to avoid collisions with other skiers and with natural and man-made objects, whether marked or unmarked.

4. A skier shall avoid snow maintenance and grooming equipment, vehicles, lift towers, signs and other equipment located on ski slopes and trails.

5. A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property. A skier is presumed to have seen and understood all signs and notices posted pursuant to sections 5-702, 5-703 and 5-704. Under conditions of decreased visibility, the duty rests on the skier to locate and ascertain the meaning of all the signs and notices.

6. A skier shall only use skis, snowboards and other equipment that have been equipped with a functional strap or other device designed to reduce the risk of runaway equipment.

7. A skier shall not ski on a ski slope or trail or a portion of a ski slope or trail that a ski area operator has designated as closed pursuant to section 5-703, subsection D.

8. A skier shall not begin to ski from a stationary position or enter a ski slope or trail from the side unless the skier is able to avoid colliding with moving skiers already on the ski slope or trail.

9. A skier shall not cross the uphill track or place any object in the uphill track of a rope tow or surface lift except at locations that have been designated for crossing by a ski area operator.

10. A skier shall not move uphill on any passenger tramway or use any ski slope or trail while the skier’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug.

11. A skier involved in a collision with another skier that results in an injury shall not leave the vicinity of the collision before giving the skier’s name and current address to an employee of the ski area operator or a member of a paid or voluntary ski patrol. This paragraph does not prohibit a skier from leaving the scene of a collision to secure first aid for a person who is injured in the collision. If a skier leaves the scene of a collision to secure first aid, the skier shall leave the skier’s name and current address as required by this paragraph after securing the first aid.

12. A skier shall not knowingly enter the public or private lands of an adjoining ski area if the owner of that land has closed that land to skiers and the landowner or the ski area operator has designated the adjoining land as closed.

History: Last year in which legislation affected this section: 1997

§ 5-706. Release of liability

In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.

History: Last year in which legislation affected this section: 1997

§ 5-707. Competition

A. Before the beginning of any competition, a ski area operator shall allow any competitor a reasonable visual inspection of the course or area where the competition is to be held.

B. A competitor accepts the risk of all course conditions, including weather and snow conditions, course construction or layout and obstacles that a visual inspection immediately before the run could have revealed.

C. In any action brought by a competitor against any ski area operator, if the ski area operator proves that the participant in the competition signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.

HISTORY: Last year in which legislation affected this section: 1997


Fred Phillips Consulting, LLC has a job on the Lower Colorado

Seasonal Job Announcement Lower Colorado River and tributaries in Arizona, California and Nevada

The Yellow-billed Cuckoo was named Cuculus ame...

The Yellow-billed Cuckoo was named Cuculus americanus in 1758. (Photo credit: Wikipedia)

Position: Yellow-Billed Cuckoo Field Crew Leaders and Surveyors, Lower Colorado River, Arizona, California, and Nevada

Start Date:  May30- August 25

Status: Seasonal

Number of Openings: 2 Crew Leaders and 9 Surveyor Crew

Fred Phillips Consulting (FPC) is potentially looking for 2 field crew leaders and 9 surveyor crew members to conduct Yellow-Billed Cuckoo surveys on the Lower Colorado River from Lake Mead area south to the U.S. Mexican Border pending funding. The teams will be based out of Yuma, AZ, Parker, AZ, and Blythe, CA and work will be conducted at Havasu National Wildlife Reserve, Bill Williams River NWR, Cibola NWR, and Yuma East Wetlands. FPC is teaming with PRBO Conservation Science to conduct 5 years of yellow-billed cuckoo monitoring on the Lower Colorado River. FPC is a small business environmental consulting company based out of Flagstaff, AZ. We have been designing, implementing, managing and monitoring large-scale habitat restoration projects on the Lower Colorado River for over 12 years, including wildlife and bird surveys.

Two crew leaders are needed to conduct surveys from May 30- August 30. Crew leaders will assist with Yellow-billed cuckoo surveys along the lower Colorado River. Duties will include: supervising 1-5 biological technicians, project logistics, data collection and management, and conducting presence/absence surveys.

Nine field surveyors are needed from May 30- August 30. Field surveyor crew duties include conducting presence/absence yellow-billed cuckoo surveys using a playback tape method and data entry. 

Qualifications Required:

Crew leaders must have 1) at least one year of field crew leader experience and an additional 2-3 years of avian survey

Colorado River @ Lake Mead National Recreation...

Colorado River @ Lake Mead National Recreation, Nevada / Arizona (Photo credit: Wikipedia)

experience, 2) know how to navigate using a map and GPS unit, 3) have computer and data management skills, 4) experience with call-back bird survey methods, 5) the ability to carry a heavy backpack in hot and humid conditions, off-trail in remote areas. Crew leaders need to have a valid driver’s license and be certified in First Aid and CPR.

Field surveyors must: 1) have previous avian field work experience, 2) skills using a map and GPS unit in the field, 3) be able to carry a heavy backpack in hot and humid conditions, off-trail in remote areas, 4) have computer skills, and 5) work in pairs or individually in the field.

Housing and work vehicles will be provided. Individuals will be responsible for getting themselves to and from field housing during non-working hours.

Field and Survey Conditions:

The Lower Colorado River is hot and humid during the summer with temperatures ranging from 80-115 F. Field work is initiated in the early morning prior to sunrise, and often times accessing field sites will be conducted in the dark. Work will include conducting surveys in the morning and entering data on the computer the same day. Field staff will work a 5 day on and 2 day off schedule, but must be able to work any days of the week. The schedule may change and field staff must be adaptable to those changes. Some crew, particularly crew leaders, may have to work over 40 hour weeks.

Check out more of the exciting work we are doing at http://www.fredphillipsconsulting.com

Email/Mail Resume and references to:

Yellow billed cuckoo fws

Yellow billed cuckoo fws (Photo credit: Wikipedia)

Heidi Trathnigg

htrathnigg@fredphillipsconsulting.com

401 South Leroux Street

Flagstaff, AZ 86001

928-773-1530 Phone

928-774-4166 Fax

What do you think? Leave a comment.

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

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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer,

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Arizona Sales Representative

ARIZONA REVISED STATUTES

TITLE 44. TRADE AND COMMERCE

CHAPTER 11. REGULATIONS CONCERNING PARTICULAR BUSINESSES

ARTICLE 15. SALES REPRESENTATIVE CONTRACTS

Go to the Arizona Code Archive Directory

A.R.S. § 44-1798.01 (2012)

§ 44-1798.01. Sales representative contract

A. The sales representative and the principal shall enter into a written contract. The contract shall set forth the method by which the sales representative’s commission is to be computed and paid.

B. The principal shall provide each sales representative with a signed copy of the contract. The principal shall obtain a signed receipt for the contract from each sales representative.

§ 44-1798.02. Termination of sales representative contract; payment of earned commissions

A. If an agreement of services is terminated for any reason both of the following apply:

1. All the commissions due through the time of termination shall be paid to the sales representative within a period of not to exceed thirty days after termination.

2. All the commissions that become due after the effective date of termination shall be paid to the sales representative within fourteen days after they become due.

B. The principal shall pay the sales representative all commissions due while the business relationship is in effect in accordance with the agreement between the parties.

C. A principal who fails to comply with subsections A and B of this section is liable to the sales representative for damages in the amount of three times the sum of the unpaid commissions owed to the sales representative.

D. The prevailing party in an action brought under this section is entitled to the cost of the suit, including reasonable attorney fees.

E. Commissions shall be paid at the usual place of payment unless the sales representative requests that the com-missions be sent by registered mail. If, in accordance with a request by the sales representative, the sales representative’s commissions are sent by mail, the commissions are deemed to have been paid as of the date of the registered postmark on the envelope.

F. Unless payment is made pursuant to a binding and final written settlement agreement and release, the acceptance by a sales representative of a commission payment from the principal does not constitute a release as to the balance of any commissions claimed due. A full release of all commission claims that is required by a principal as a condition to a partial commission payment is null and void.

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Posts will keep coming but I’m in the Grand Canyon

Sorry, but you can’t turn down a Grand Canyon Trip

My posts will keep coming, I’ve scheduled them in advance and however comments will not get approved.

I’ll be back after May 13th.

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

Twitter: RecreationLaw

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Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

Poster for Grand Canyon National Park, Arizona...

Poster for Grand Canyon National Park, Arizona, USA (Photo credit: Wikipedia)

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Glen Canyon Dam LTEMP EIS Upcoming Public Meeting to Discuss Alternatives

LTEMP EIS Upcoming Public Meeting to Discuss Alternatives
*********************************************************

The public is invited to participate in a two-day meeting on alternatives being considered for inclusion in the Glen Canyon DamLong Term

Glen Canyon Dam

Glen Canyon Dam (Photo credit: Wikipedia)

Experimental and Management Plan Environmental Impact Statement (LTEMP EIS) being prepared by the Bureau of Reclamation (Reclamation) and the National Park Service (NPS). The meeting will be held on April 4 and 5 at the High Country Conference Center located at 201 West Butler Avenue, Flagstaff, AZ 86001. The meeting is tentatively scheduled for 8 a.m. to 5 p.m. both days.

The preliminary draft alternatives being considered for evaluation will be presented and discussed at this meeting hosted by Reclamation and the NPS. Stakeholders and other attendees who have alternatives to propose should bring those ideas to the meeting. PowerPoint slides and posters are welcome. To be added to the agenda, register for the meeting as explained below, provide your email address, and indicate that you will be presenting an alternative.

Those wishing to attend the meeting are encouraged to register through the LTEMP EIS Web site at http://ltempeis.anl.gov/involve/pubschedule/, but registration is not required.
Alternatives to be considered in the EIS must meet the purpose and need of the LTEMP. The EIS will document and evaluate the impacts of the alternatives carried forward for analysis.

For More Information
********************

To learn more about how you can participate in the EIS process, visit the “Getting Involved” page of the LTEMP EIS Web Site
(http://ltempeis.anl.gov/involve/index.cfm).

If you have questions or need more information, contact the LTEMP EIS Webmaster at ltempeiswebmaster@anl.gov

Please forward this message to any party you feel may be interested in the LTEMP EIS.

_________________CONTACTS/SUBSCRIPTIONS________________

FEEDBACK

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Grand Canyon LTEMP EIS Scoping Report Available and Web-Based Meetings

LTEMP EIS Scoping Report Available
**********************************

Glen Canyon Dam

Image via Wikipedia

Public comments on the scope of the Long-Term Experimental and Management Plan (LTEMP) Environmental Impact Statement (EIS) for Glen Canyon Dam operations were gathered by the Bureau of Reclamation (Reclamation) and the National Park Service (NPS) during the Public Scoping Period, which closed on January 31, 2012. A series of public scoping meetings were held in November 2011. During these meetings, Reclamation and the NPS provided the public with information about the LTEMP EIS and opportunities to meet with and ask questions of technical experts.

Reclamation and the NPS have reviewed and evaluated the comments received and developed the “Summary of Public Scoping Comments on the Glen Canyon Dam Long-Term Experimental and Management Plan Environmental Impact Statement” (Scoping Report), which is now available on the Documents page of the LTEMP EIS Web site at http://ltempeis.anl.gov/documents/

Upcoming Web-Based Public Meetings
**********************************

Two Web-based public meetings will be held on March 27, 2012 at 1:00pm and 6:00pm Mountain Daylight Time. The public is invited to participate in these meetings, which will provide a summary of public comments on the scope of the LTEMP EIS. The public will be able to watch a live overview of the Scoping Report, and will have an opportunity to ask questions of technical experts and managers involved in the EIS.

Those wishing to participate are encouraged to register through the LTEMP EIS Web site at http://ltempeis.anl.gov/involve/pubschedule/, but registration is not required. Participants are encouraged to log on to the webcast about 15 minutes before the start of each meeting to ensure they are connected before the meeting begins. For instructions on how to join and how to ask questions during the meetings, see
http://ltempeis.anl.gov/involve/pubschedule/

For More Information
********************

To learn more about how you can participate in the EIS process, visit the “Getting Involved” page of the LTEMP EIS Web Site
(http://ltempeis.anl.gov/involve/index.cfm).

If you have questions or need more information, contact the LTEMP EIS Webmaster at ltempeiswebmaster@anl.gov

Please forward this message to any party you feel may be interested in the LTEMP EIS.

_________________CONTACTS/SUBSCRIPTIONS________________

FEEDBACK

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AZ Republic – Congress must not derail anti-noise plan

Congress must not derail anti-noise plan

Mar. 1, 2012

The Republic | azcentral.com

After years of work, and decades of delay, the National Park Service is about to adopt a plan to manage aircraft noise at the Grand Canyon.

Bright Angel Point trail - Grand Canyon North Rim

Bright Angel Point trail - Grand Canyon North Rim (Photo credit: Al_HikesAZ)

Congress must not derail it.

The 1987 National Park Overflights Act called for the substantial restoration of natural quiet at the Grand Canyon.

Now, with that goal in sight, a proposed amendment to the Senate surface transportation bill would throw the process off track. It would change the wording of the 1987 law — setting the stage for years of litigation and yet more delay.

Sen. John McCain is sponsoring this measure. And Sen. Jon Kyl has signed on as a co-sponsor. So have Nevada’s Dean Heller and, making this a bipartisan misconcieved idea, Senate Majority Leader Harry Reid. (Why such high interest in Nevada? Air tours to the Grand Canyon happen to be big business in Las Vegas.)

This is their second effort. In 2010, when since-resigned John Ensign was Reid’s Senate mate, the four Arizona and Nevada senators proposed an end-run around the planning process. That legislation was ultimately withdrawn. This one should be dropped, too.

The National Park Service released its draft environmental document last year. The “preferred alternative” strikes a well-calibrated balance between reduced noise and opportunities for air tours. It would allow up to 65,000 air tours a year, 8,000 more than the total when the plan was written. It includes changes in routes and altitudes, plus at least one hour of quiet time before sunset and after sunrise.

The park service received nearly 30,000 comments from individuals and organizations. The final plan, which will likely be tweaked in response to some of those concerns, will be out this spring. Then the Federal Aviation Administration will consider the plan for safety issues.

McCain’s office says the proposed amendment would incentivize quiet technology and address FAA safety concerns. The plan, however, includes incentives for quiet technology that don’t conflict with the goal of reducing noise. The FAA’s concerns can and should be worked out in the final stages of the plan.

The majesty of the Grand Canyon includes the chance to experience natural quiet. The swish of wind through pines and the rush of the Colorado River echoing up the trail are valuable resources that need protection, just as archaeological sites do. We are so close to achieving that protection. Congress should not change the rules of the game in the very last minutes of play.

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Arizona limited right for parent to waive child’s right to sue

State Seal of Arizona.

Image via Wikipedia

TITLE 12.  COURTS AND CIVIL PROCEEDINGS

CHAPTER 5.  LIMITATIONS OF ACTIONS

ARTICLE 3.  PERSONAL ACTIONS

Go to the Arizona Code Archive Directory

A.R.S. § 12-553 (2011)

§ 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions

   A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:

   1. The person has taken control of the equine from the owner or agent when the injury or death occurs.

   2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.

   3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.

   4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person’s representation of his skills, health and experience with and knowledge of equines.

B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.

C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner’s permission is not liable for injury to or death of the equine or the rider or handler.

D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:

   1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.

   2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

E. As used in this section:

   1. “Equine” means a horse, pony, mule, donkey or ass.

   2. “Release” means a document that a person signs before taking control of an equine from the owner or owner’s agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

HISTORY: Last year in which legislation affected this section: 1998

NOTES:

Premises Liability

SCOPE OF IMMUNITY.

   This section does not shield stable owners from claims for negligent supervision, which do not involve horseback riding or activities directly relating thereto. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (Ct. App. 1998).

   Grant of summary judgment in favor of the riding stable operator was proper where the document that the rider signed contained sufficient information to have been considered a release; further, this section does not completely deprive injured equine riders of a remedy and thus it does not violate the anti-abrogation clause, Ariz. Const. art. 18, § 6. Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557, 2003 Ariz. App. LEXIS 162 (Ct. App. 2003).

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

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Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, #Arizona, #AZ, Parental Rights,

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Guiding Opportunity at Grand Canyon National Park

Arizona Outback Adventures will be conducting a series of day hikes on various trails at the South Rim of Grand Canyon National Park on May 19th 2012.

We are recruiting guides to join our existing staff for three days of work on a contract basis.

Pay is $100.00-$120.00 per day dependent upon experience and qualifications

Guaranteed gratuity plus additional tips possible

All meals, park entrance and camping fees included

Applicants are required to have:

·          Current WFR certification (or higher)

·          Current CPR certification

·          Good general knowledge of Grand Canyon’s history, geology, flora and fauna

·          Experience hiking the main trails from the South Rim

·          The ability to handle a group of seven diverse hikers on your own

·          The ability to follow specific instructions and procedures

·          A day pack, comprehensive first aid kit, trowel and all appropriate clothing and footwear for changing weather conditions

·          Be physically fit

·          Have a pleasant, friendly and engaging personality

·          Have a presentable appearance

·          Be available from 5:00am 5/17 through 9:00pm 5/19

·          Experienced Grand Canyon hiking and rafting  guides preferred

To apply email tim@aoa-adventures.com with a brief outline of your experience and qualifications, list all trails that you have hiked from the Main South Rim area (Hermit to Grandview) and the approximate number of times on each trail. Attach a current photo and a single sheet with a color scan of your Driver’s License, WFR Card and CPR card (if separate) with expiration dates clearly showing.

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

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Guiding Job in the Grand Canyon

Angel’s Gate Tours is looking for experienced Grand Canyon guides to lead sightseeing tours, day hikes and the occasional backpacking trip in Grand Canyon. We are specifically recruiting experienced Grand Canyon boatman and other Grand Canyon backcountry professionals. Please contact us if you meet the following requirements:

  • Minimum WFR certified, with CPR. (More advanced med certs are also acceptable).
  • Good driving record. (1 minor ticket is usually OK)
  • Must be able to pass Arizona DOT physical (this is pretty simple, basically it verifies that you can see, hear and move well enough to drive a vehicle).
  • Outstanding Grand Canyon knowledge. (You know your schist from Shi-nola, and can present complex material in an entertaining manner).
  • Hiking experience on all South Rim trails.

This is an excellent opportunity for Grand Canyon backcountry professionals that need to spend more time in town due to family, children, dog issues or other constraints. The majority of our tours and hikes depart from and return to Flagstaff daily. Please visit our website at www.SeeGrandCanyon.com and call (928) 814-2277 to schedule an interview. Angel’s Gate Tours is an EOE.

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States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-702

   All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

Wisconsin

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

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54.  Recreational activity liability prevented the use of a release

New York

General Obligation Law §  5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

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Four State Supreme Courts Reverse their Positions on Release

Releases are the foundation of most adventure outfitters program to prevent lawsuits. Dependent upon your base of operation and/or your area of operation a release or waiver is the best way to inform your guests of the risks and stop lawsuits. However, the law concerning releases has changed dramatically in four states over the past 18 months.

Changes started February of 2005 when the Wisconsin Supreme court overturned its law on releases. In a case involving a drowning at a

English: Seal of the Wisconsin Supreme Court

Image via Wikipedia

health club, Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 the Wisconsin Supreme Court set up a series of requirements for releases which will be impossible to meet. Each of the requirements allows the guest to invalidate the release or takes the legal teeth out of the release. The final requirement is a bargain for exchange requirement. This means the outfitter must offer the guest the opportunity to take the trip without signing a release for an additional charge. The additional charge to enjoy the adventure without signing a release must only be a nominal amount; however that does not make economic sense. (For a more thorough analysis see the Outdoor Recreation Law Review
Wisconsin Supreme Court decision threatens businesses relying on releases.)

Arizona Supreme Court

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In Arizona, in a race car mishap, the Arizona Supreme Court took an approach to releases no other state has adopted. In Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53, the Arizona Supreme Court held that releases, written contracts, are only an acknowledgement of risk. As such, the trier of fact, normally the jury, must decided whether the injured patron understood the risk of the activity and the release is additional, but not substantive proof of the knowledge. As such, releases in Arizona are not just proof of acknowledgement of risk rather than a contract to prevent a lawsuit. In the future, a defendant relying upon a release will be forced to go to trial to prove the injured guest understood the risk of the activity that injured him. (See the Outdoor Recreation Law Review
Surprising Arizona Supreme Court Decision Further Endangers Release Language.)

The New Mexico Supreme Courtdetermined that a statute designed to protect the Equine industry prevented the use of a release by a stable.

New Mexico Supreme Court

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In Berlangieri et al. v. Running Elk Corporation, et al., 48 P. 3d 70 (N.M. App. April, 2002 the New Mexico Supreme Court stated the New Mexico Equine Liability act provided the only protection for equine outfitters and therefore it prevented the use of a release. This decision is limited to only equine activities; however a similar decision in West Virginia was the beginning of a series of decisions invalidating releases. This is an example of a statute that was meant to protect an industry doing more harm than good. (See the Outdoor Recreation Law Review
Release of Liability Found to Violate Public Policy.)

Connecticut Supreme Court

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The final decision is a Connecticut Supreme Court decision, Hanks v. Powder Ridge Restaurant Corporation et al. 276 Conn. 314, 2005 Conn. LEXIS 500 that overruled a case with the identical fact situation six years earlier. In this case a patron at a tubing hill signed a release and was injured tubing. He sued and the Connecticut Supreme Court overruled itself stating releases were no longer valid in the state because it removed the incentive for the tubing operator to keep the premises safe. The Supreme Court held that releases for recreational activities violate public policy. Public policy is the protection the courts extend to the public to protect them when they cannot protect themselves. Those protections are normally limited to those necessities of live that the public cannot live without such as utilities or public transportation. (See the Outdoor Recreation Law Review Connecticut Supreme Court takes yet another bite out of releases with latest decision.)

All of these decisions are discouraging; however there are methods to change the results for a particular outfitter. The easiest and most important way is by using an effective Jurisdiction and Venue clause in a release. Jurisdiction means the law that will be applied and Venue means the location of the court that will hear the case. If you are operating in any of these four states, or another state that prohibits the use of a release, you can specify in the release the state where the case will be heard and the law that will be applied.

For Additional Analysis of these cases or to read the legal opinion, go to the Outdoor Recreation and Fitness Law Review.

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