Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719
Posted: July 6, 2015 Filed under: Cycling, Legal Case, Mountain Biking, Tennessee | Tags: assembly, bicycle, burden of proof, Campground, Consumer, Cycling, Dangerous Condition, defective condition, deposition, entitled to judgment, favorable, front wheel, genuine, genuine issue, hearsay, Issue of Material Fact, Manufacture, Manufacturer, Marketing, matter of law, Mongoose, Mountain bike, moving party, non-moving, Product liability, Products Liability, Proximate Cause, Quick Release, remember, rode, seller, Skewer, Summary judgment, Tennessee, TPLA, unreasonably, unreasonably dangerous, Wheel 1 CommentTo Read an Analysis of this decision see Pacific Cycle not liable for alleged defective skewer sold to the plaintiff by Wal-Mart
Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719
A.B. By Next Friend, Rachelle Burnett, Plaintiffs, v. Pacific Cycle, Inc. and Wal-Mart Stores East, L.P., Defendants.
No.: 3:06-CV-266
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
2007 U.S. Dist. LEXIS 55719
July 31, 2007, Filed
COUNSEL: [*1] For A.B., next friend Rachelle Burnett, Plaintiff: Lori L Jessee, LEAD ATTORNEY, Bacon, Jessee & Perkins, Morristown, TN; Sidney W Gilreath, Timothy A Housholder, LEAD ATTORNEYS, Gilreath & Associates, PC, Knoxville, TN.
For Pacific Cycle, Inc., Wal-Mart Stores East, L.P., Defendants: Travis J Graham, LEAD ATTORNEY, Gentry, Locke, Rakes & Moore, LLP, Roanoke, VA.
JUDGES: Thomas A. Varlan, UNITED STATES DISTRICT JUDGE.
OPINION BY: Thomas A. Varlan
OPINION
MEMORANDUM OPINION
This civil action is before the Court on the defendants’ Motion for Summary Judgment [Doc. 12]. Plaintiffs, A.B. and next friend Rachelle Burnett (“Plaintiffs”), claim that A.B. was injured in a bicycle accident because of the negligence of the defendants. [Doc. 1] Specifically, Plaintiffs allege that defendant Pacific Cycle, Inc. (“Pacific”) was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. [Id. at PP 9-13] Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. (“Wal-Mart”) was negligent in the assembly, marketing, distribution, and sale of the bicycle in question. [Id. at PP 14-16] In their motion for summary judgment, the defendants argue that, pursuant to Fed. R. Civ. P. 56, [*2] they are entitled to judgment as a matter of law because Plaintiffs cannot prove that the bicycle was defective or unreasonably dangerous, nor can they prove that A.B.’s injury was caused by the alleged defect. Plaintiffs have not responded to the instant motion and the time for doing so has passed. See L.R. 7.1(a), 7.2.
The Court has carefully reviewed the pending motion, along with the supporting brief in light of the entire record and controlling law. For the reasons set forth herein, the defendants’ motion for summary judgment will be granted.
I. Relevant Facts
In approximately December, 2000, Plaintiffs purchased a Mongoose DXR / MGX mountain bike (the “Bicycle”) from the Jefferson City, Tennessee Wal-Mart. [Doc. 1 at P 5] The Bicycle was fully assembled when purchased. [Doc. 13, Attachment 2 at p. 3] The Bicycle’s front wheel was equipped with a quick release mechanism which allows the front wheel to be detached. [Doc. 1 at P 8] Plaintiffs never manually removed the front wheel from the Bicycle. [Doc. 13, Attachment 2 at p. 3, 5] Other than simple maintenance, including inflating the tires and oiling the chain, no work was ever performed on the Bicycle while in Plaintiffs’ possession. [*3] [Id. at p. 4]
A.B. rode the Bicycle frequently in the following years, varying from once a week to once every few days. [Doc. 13, Attachment 4 at p. 5] A.B. normally only rode the Bicycle in Plaintiffs’ driveway, yard, and at a nearby church. [Id. at p. 4] In June, 2004, Plaintiffs went on a camping trip and brought the Bicycle. [Doc. 13, Attachment 3 at p. 6] The Bicycle was transported to the campground in the back of Plaintiffs’ truck. [Id.] The wheels were not removed while the Bicycle was in transit to the campground. [Id.] Plaintiffs arrived at the campground on the afternoon of June 24, 2004. [Id.] A.B. did not ride his bicycle on June 24, 2004, but did ride it some on June 25, 2004 with no difficulty. [Id.] On June 26, 2004, A.B. again rode his bicycle around the campground, but this time had an accident and sustained a severe injuries to his face and head. [Id.] A.B. remembers “riding [the Bicycle] back to the campsite, and then . . . looking over and seeing this big family, and then everything went black.” [Doc. 13, Attachment 4 at p. 7] A.B. does not remember how the accident happened. [Id.] The accident was witnessed by an unknown camper [Id. at p. 8], but there is no evidence [*4] of record that the unknown camper has ever been identified. At the time of the accident, A.B. was just riding along on a smooth, gravel road, and was not trying to perform any tricks. [Id. at p. 10] A.B. does not remember whether the front wheel of the Bicycle came off before or after the accident. [Id.]
II. Standard of Review
Under Fed. R. Civ. P. 56(c), summary judgment is proper if “the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could [*5] find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.
The judge’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.
III. Tennessee Product Liability Act
Plaintiffs claim that Pacific was negligent in the design, manufacture, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the Tennessee Product Liability Act (“TPLA”). Plaintiffs further allege that Wal-Mart was negligent in the assembly, marketing, [*6] distribution, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the TPLA.
In order to recover against a manufacturer or seller under the TPLA, a plaintiff must prove that the product in question was “in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a). The TPLA defines a “defective” condition as “a condition of a product that renders it unsafe for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-102(2). The TPLA defines “unreasonably dangerous” as a product
dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.
Tenn. Code Ann. § 29-28-102(8). “These statutory definitions essentially codify the ‘consumer expectation test’ as the basis in Tennessee [*7] for assessing products liability.” Tatum v. Cordis Corp., 758 F. Supp. 457, 461 (M.D. Tenn. 1991).
“Thus, regardless of the theory, the plaintiff must show that something is wrong with a product that makes it defective or unreasonably dangerous.” Bradley v. Danek Medical, Inc., No. 96-3121, 1999 U.S. Dist. LEXIS 6449, at *25 (W.D. Tenn. Mar. 29, 1999) (citations omitted). Additionally, the plaintiff must show that the alleged defect or unreasonably dangerous condition of the product was both the proximate cause and the cause in fact of the plaintiff’s injury. Pride v. BIC Corp., 218 F.3d 566, 580 (6th Cir. 2000). “[A] device failure or malfunction will not, without more, render a manufacturer liable.” Bradley, 1999 U.S. Dist. LEXIS 6449, at *25 (citing Harwell v. American Medical Sys., Inc., 803 F. Supp. 1287, 1298 (M.D. Tenn. 1992)). “Moreover, the fact that plaintiff was injured is not proof of defect.” Id. (citing Fulton v. Pfizer Hosp. Products Group, Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App. 1993).
In the instant case, Plaintiffs have presented no proof in support of their claims, instead relying solely on their complaint. The plaintiffs’ complaint, even if accepted as true for [*8] purposes of summary judgment, consists of allegations which are not acceptable proof under Rule 56. Mere notice pleading is not sufficient to defeat a well-pled summary judgment motion. See Garth v. University of Kentucky Medical Center, No. 92-5177, 1992 U.S. App. LEXIS 14677, at *3-4 (6th Cir. June 16, 1992) (“To survive a motion for summary judgment, [the plaintiff] was required to do more than rest on her pleadings; she was required to demonstrate that a genuine issue for trial existed.”); Teamsters Local Union No. 486 v. Andersen Sand and Gravel Co., No. 82-1124, 711 F.2d 1059, 1983 U.S. App. LEXIS 13044, at *6 (6th Cir. May 11, 1983) (“Where the district court has afforded a party opposing summary judgment under Rule 56 an opportunity to set forth specific facts showing there is a genuinely disputed factual issue for trial and that opportunity has been ignored, summary judgment is appropriate if the movant has carried his burden of proof.”). After reviewing the record in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have failed to carry their burden and that the defendants’ motion for summary judgment should be granted.
Plaintiffs have not established that the alleged [*9] defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause in fact of the accident. A.B. admits that he can not remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident. [Doc. 13, Attachment 4 at p. 10] Nor is there any other evidence of record as to the cause of the accident. The Court notes that Ms. Burnett did indicate during her deposition that A.B. “told me before that he remembered the wheel coming off and it going forward,” but that testimony is inadmissible hearsay and not based upon Ms. Burnett’s own personal knowledge. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“hearsay evidence may not be considered on summary judgment”).
In contrast, the defendants have presented expert testimony proving that the accident was not caused by quick release mechanism on the Bicycle’s front tire and that the Bicycle was not defective nor unreasonably dangerous. [Doc. 13, Attachment 3] Accordingly, the Court finds that Plaintiffs have not carried their burden of proof with respect to identifying a defect or dangerous condition [*10] of the Bicycle and showing that the defect or dangerous condition was the proximate cause and the cause in fact of the plaintiff’s injury, and thus defendants’ motion for summary judgment will be granted.
IV. Conclusion
For the reasons set forth herein, the defendants’ motion for summary judgment [Doc. 12] will be GRANTED and Plaintiffs’ claims will be DISMISSED with prejudice.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
You probably are not liable, but the PR cost of not making sure your guests are going to be safe could swamp your business.
Posted: July 1, 2015 Filed under: Ohio, Paddlesports, Rivers and Waterways | Tags: Big Darby, Canoe, Canoe Livery, Livery, Ohio, Strainer, Trapper John Canoe Livery 4 CommentsStrainer traps several and creates near drowning on Ohio river that is canoed regularly.
I first saw this from a FB post which described more than the article does.
Canoe liveries are big business in Ohio and the Midwest. They provide a great way to all types of people to get on a river and enjoy nature and the water. The Big Darby Creek in central Ohio is one of those rivers.
In this case a strainer stretched most of the way across the river. It caught canoe after canoe which eventually forced one woman under the strainer where she was held for several minutes. CPR brought her back and everyone was saved. However the harrowing minutes on the river, 911 calls and the press reported the story.
The article at the end identifies the canoe livery who had rented the boats.
Whether or not the livery had any knowledge of the problem in advance is not known. However this is a great teaching situation where you can see the bad public relations costing more than possible litigation. Ohio has great release law and even allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
If you owned or ran a canoe livery should you send a boat down in the morning to check things out? Granted the tree could have fallen after the first staff boat went through and before the first rented canoe came down the river. However the odds are better that the tree fell overnight.
The next issue is whether the canoe livery had the right to remove the tree even if they did find it. I don’t remember Ohio water law enough to know.
If you know of the situation, should you inform you guests? Could you have posted a sign upstream of the strainer? What else can you do?
See: 9 canoeists pulled from Big Darby; 1 seriously hurt
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Oregon Recreational Use Statute used by US Forest Service to stop claim by injured snowmobiler
Posted: June 29, 2015 Filed under: Oregon | Tags: Deschutes, Deschutes National Forest, Motion to Dismiss, Recreational Use, Recreational Use Statute, Snowmobiling, US Forest Service, USFS 1 CommentCase does an excellent job of explaining the requirements that must be met to support a motion to dismiss.
Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168
State: Oregon, United States District Court for the District of Oregon
Plaintiff: Daniel T. Stringer
Defendant: US Forest Service, United States Department of Agriculture,
Plaintiff Claims:
Defendant Defenses: Recreational Use Statute
Holding: For the Defendant
Year: 2014
The plaintiff was with a group of people who rented snowmobiles and then drove them to the Deschutes National Forest. The plaintiff started to go snowmobiling with a group. On their way there the plaintiff took off across a field that was not with the other members of the group.
The plaintiff’s snowmobile went over a 15’ embankment where he suffered injuries.
The plaintiff sued the defendant US Forest Service for his injuries. This is the motion to dismiss the plaintiff’s complaint because of the Oregon Recreational Use Statute.
Analysis: making sense of the law based on these facts.
The court started by explaining in detail the steps necessary to dismiss a complaint on a Rule 12(b)(6) Motion to Dismiss.
To begin with a “complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” A claim is plausible when “the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct.” The factual allegations must present more than the “the mere possibility of misconduct.”
While considering a motion to dismiss, the Court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.”
Consequently the court can dismiss a claim when the court finds the facts, even if pleading more than simple claim of injury do not support the necessary steps to prove the plaintiff’s claim. The plaintiff’s complaint requires more than mere allegations.
The first issue was whether the United States could use a state statute as a defense to a claim.
The liability of the United States is determined “in the same manner and to the same extent as a private individual in like circumstances.” Because plaintiff’s accident occurred in Oregon, this action is governed by Oregon law.
The court then looked at the Oregon Recreational Use Statute, ORS § 105.682. Like most recreational use statutes, a landowner is not liable for injuries if they do not charge for the use of their land.
The plaintiff argued that because the defendant charged for use of the land at other locations in the Deschutes Forest the defendant, Forest Service could not rely on the recreational use statute. Here the US Forest Service charged to use the land to ski and to camp. However, the plaintiff was not camping or skiing, nor whether they are engaging in an activity at the location where fees are charged to ski or camp.
A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.
There must be some relationship between the fee charged and the activity which the plaintiff engaged in which caused his injury.
So Now What?
This case lays out an easy analysis to understand the requirements to win a motion to dismiss. Motions to dismiss are usually filed prior to the answer of the defendant being filed and are done so when the plaintiff’s claim fails in all respects to present any evidence which the court can find to support the claims of the plaintiff.
If the motion to dismiss is not granted the defendant is instructed to file their answer and discovery begins. After or during discovery, one or more of the parties can file a motion for summary judgment. A motion for summary judgment is normally how a case is dismissed prior to trial. Motions to dismiss are rarely granted.
In this case, the next motion would have probably been based on the fact the plaintiff assumed the risk by taking off, off the trail when he crashed.
This is also instructional in showing the defendant United States through any of its land-management agencies, Bureau of Land Management, National Park Service, US Forest Service, Bureau of Reclamation or US Fish & Wildlife Service.
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
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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
#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, Recreational Use Statute, Recreational Use, Snowmobiling, Deschutes, Deschutes National Forest, US Forest Service, USFS, Motion to Dismiss,
Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168
Posted: June 26, 2015 Filed under: Oregon | Tags: Oregon, Recreational Use, Recreational Use Statute, Snowmobiling, US Forest Service Leave a commentStringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168
Daniel T. Stringer, Plaintiff, v. United States Department of Agriculture (Forest Service), Defendant.
Civ. No. 6:13-cv-1902-MC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2014 U.S. Dist. LEXIS 150168
October 21, 2014, Decided
October 21, 2014, Filed
COUNSEL: [*1] For Daniel T Stringer, Plaintiff: J. Randolph Pickett, LEAD ATTORNEY, Pickett Dummigan Rhodes, LLP, Portland, OR; Matthew D. Kaplan, Matthew D. Kaplan, LLC, Portland, OR; R. Brendan Dummigan, Pickett Dummigan Rhodes, LLP, Portland, OR; Kristen C. West, Pickett Dummigan, LLC, Portland, OR.
For United States Department of Agriculture Forest Service, Defendant: James E. Cox, Jr., LEAD ATTORNEY, U.S. Attorney’s Office, Portland, OR.
JUDGES: Michael J. McShane, United States District Judge.
OPINION BY: Michael J. McShane
OPINION
OPINION AND ORDER
MCSHANE, Judge:
Plaintiff Daniel Stringer was injured while snowmobiling in the Deschutes National Forest. The United States Forest Service (Forest Service), which manages the Deschutes National Forest, allows members of the public to snowmobile on approximately 600 miles of trail within the forest free of charge.
The Court is asked to consider whether the Forest Service waived sovereign immunity under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. Because Stringer neither paid a “charge” nor engaged or intended to engage in an activity subject to a “charge,” this Court finds that the Forest Service did not waive its immunity. Thus, defendant’s motion to dismiss, ECF No. 10, is GRANTED. [*2]
PROCEDURAL AND FACTUAL BACKGROUND
This action arises out of a snowmobile accident occurring in the Deschutes National Forest. On March 24, 2012, Stringer, along with five companions, rented five snowmobiles at a rental facility in Bend, Oregon. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1. After receiving a 15-minute training tutorial, the group traveled to Wanoga Sno-Park. Decl. of James E. Cox, Jr. 2, ECF No. 13-3. Wanoga Sno-Park, a snowmobiling park located within the Deschutes National Forest between Bend and Mount Bachelor, is open to the public free of charge.1 See Decl. of Kevin W. Larkin 2-3, 5 ECF No. 11.
1 The state of Oregon does charge a $5 vehicle parking fee to park in the Wanoga Sno-Park parking lot. See Compl. 2-3, ECF No. 1; OREGON DEP’T OF TRANSP.,OREGON.GOV: SNO-PARK PARKING PERMITS, http://www.oregon.gov/ODOT/DMV/pages/vehicle/sno_park_permits.aspx(last visited Oct. 20, 2014).
At approximately 10 a.m., Stringer and his group departed on snowmobile trail #5 heading west toward Elk Lake Resort. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer operated a two person sled accompanied by his fiancee, Danielle McBurnett. Compl. 3, ECF No. 1. Between 11:30 a.m. and 11:45 a.m., the group arrived at Elk Lake Resort. Decl. of [*3] James E. Cox, Jr. 5, ECF No. 13-1. After a brief break, the group decided to postpone lunch and return to Wanoga Sno-Park on snowmobile trail #5 heading east. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1.
At approximately 12:50 p.m., the group approached a bridge at Falls Creek. See Decl. of James E. Cox, Jr. 1, ECF No. 13-1. Stringer, accompanied by McBurnett, sped up and pulled away from the group. Id. at 5. As he pulled away, Stringer left the trail and cut across an open meadow. Compl. 3, ECF No. 1. Realizing that the meadow led to an embankment of Falls Creek, Jessi Davis, a member of the snowmobiling group, sped up in an unsuccessful attempt to warn Stringer. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer’s snowmobile launched over the creek and crashed into the far embankment head-on. Compl. 3, ECF No. 1. Stringer and McBurnett fell approximately 15 feet to the bottom of the ravine; resulting in extensive injuries. Id. at 3, 5. Stringer now seeks damages under the FTCA. Id. at 6.
STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim is plausible on its face when [*4] the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.
While considering a motion to dismiss, the Court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations and internal quotation marks omitted).
DISCUSSION
Plaintiff, in reliance on Coleman v. Oregon Parks & Recreation Dep’t, 347 Or. 94, 217 P.3d 651 (2009), contends that defendant waived sovereign immunity under the FTCA by making a “charge” under ORS §§ 105.672(1)(a), 105.688(3). In response, defendant contests plaintiff’s interpretation of Coleman and argues that a charge was not made, and even if made, Wanoga Sno-Park is specific, separate, and distinct from any land that made such a charge.
The FTCA waives the sovereign immunity of the United States for claims based on the negligence of United States employees. 28 U.S.C. § 1346(b)(1); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995). The liability of the United [*5] States is determined “in the same manner and to the same extent as a private individual in like circumstances.” 28 U.S.C. § 2674. Because plaintiff’s accident occurred in Oregon, this action is governed by Oregon law. 28 U.S.C. § 1346(b)(1); Yanez, 63 F.3d at 872.
As stated in ORS § 105.676, “it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes . . . by limiting their liability toward persons entering thereon for such purposes . . . .” ORS § 105.6822 advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.” Coleman, 347 Or. at 97.
2 ORS § 105.682 provides:
(1) Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational [*6] purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.
(2) This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.
ORS § 105.688, however, limits the immunity provided in ORS § 105.682. ORS § 105.688 provides, in relevant part:
(3) Except as provided in subsection[] (4) . . . of this section, the immunities provided . . . do not apply if the owner makes any charge3 for permission to use the land for recreational purposes . . . .
(4) If the owner charges for permission to use the owner’s land for one or more specific recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section,4 the immunities . . .apply to any use of the land other than the activities for which the charge is imposed. If the owner charges for permission to use a specified part of the owner’s land for recreational [*7] purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities . . . apply to the remainder of the owner’s land.
3 ORS § 105.672(1)(a) defines “Charge” as “the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.” This definition excludes “the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.” ORS § 105.672(1)(c).
4 ORS § 105.688(8) provides:
(8) Notices . . . may be given by posting, as part of a receipt, or by such other means as may be reasonably calculated to apprise a person of:
(a) The limited uses of the land for which the charge is made, and the immunities provided under ORS 105.682 for other uses of the land; or
(b) The portion of the land the use of which is subject to the charge, and the immunities provided under ORS 105.682 for the remainder of the land.
Plaintiff contends that, under Coleman, defendant waived immunity by charging “a fee for any use of the land.” P1.’s Resp. to Def.’s Mot. to Dismiss 5, ECF No. 15 (emphasis in original). Specifically, plaintiff argues that because defendant charged third-parties5 a camping fee or a ski-lift fee within the Deschutes National Forest, defendant [*8] waived recreational immunity as to plaintiff’s injury occurring in that same forest. Id. at 5-8. This Court looks to Coleman.
5 Neither plaintiff nor any member of his snowmobiling group paid a camping fee or purchased a ski-lift ticket.
In Coleman, plaintiffs Bradley and Bonnie Coleman arrived at William M. Tugman State Park (Tugman Park) intending to camp overnight. 347 Or. at 96; Coleman v. Oregon Parks & Recreation Dep’t (Coleman App. Ct.), 221 Or. App. 484, 486, 190 P.3d 487 (2008), rev’d, 347 Or. 94, 217 P.3d 651 (2009). At that time, Tugman Park charged a fee for campsite and gazebo rental, but was otherwise open to the public free of charge. Coleman, 347 Or. at 96. Bradley, having arrived at the campsite, decided to explore the park with a friend on their mountain bikes. Coleman, 347 Or. at 96; Coleman App. Ct., 221 Or. App. at 486. While on a designated trail, Bradley rode his bike off a connected bridge, which lacked a ramp on one side. Coleman App. Ct., 221 Or. App. at 486.
The Supreme Court, in a four-to-three decision, denied defendant’s motion for summary judgment and concluded that defendant “did not establish that it made ‘no charge for permission to use’ Tugman Park.” Coleman, 347 Or. at 104. The Court further provided:
To be entitled to immunity, the landowner must make no charge for permission to use the land. If the landowner makes a charge for permission to use the its land, immunity does not apply, even if the injured person is not engaged in the use that was [*9] the basis for the charge at the time of injury. So, as in this case, if the landowner makes a charge to use a park for camping, the landowner forfeits its immunity, even if a camper is injured while biking.
Id. at 102-103 (emphasis in original). Plaintiff, in reliance on an excerpt from this quoted material, seeks to extend Coleman to the current action. This Court declines to do so.
The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. Decl. of Kevin W. Larkin 2, ECF No. 11. A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.6 See Hannon v. United States, 801 F. Supp. 323, 327 (E.D. Cal. 1992) (“The fact that somewhere else in the Inyo National Forest someone other than the plaintiff is charged for services does not negate the immunity defense throughout the Forest.”). As articulated in Coleman, there must be some requisite relationship between the fee charged and the injured plaintiff. 347 Or. at 103-104 (“As campers, plaintiffs were entitled to use all of Tugman Park, including its bike trials . . . . The state also did not establish that [*10] as a camper, plaintiffs’ use was limited to the piece of land associated with the charge.”) (emphasis added); see also Colin v. United States, No. C-99-5045 EDL, 2001 WL 776998, at *12 (N.D. Cal. May 17, 2001) (awarding summary judgment to defendant where “Plaintiff and his companions paid no fee to obtain access to the lake, either directly or indirectly”).7
6 The Coleman Court was presented with an analogous hypothetical:
Why, queries the state, would the legislature preclude recreational immunity for the owner of a 100-acre property that charged to use an equestrian riding center located on 10 acres of that land, but made 90 acres available to the public for free, when the plaintiff was injured hiking on the separate and distinct 90 acres?
347 Or. at 103. The Court declined to address the hypothetical, but indicated that “the land” as used in ORS § 105.688(2)(a) (amended 2009 and 2010), “may refer to a specific, separate, and distinct piece of real property.” Id.
7 In Colin, plaintiff was injured while diving into Lake Sonoma. 2001 WL 776998, at *1. At that time, the United States charged fees for overnight camping and boat launching. Id. at *11. Plaintiff, however, only engaged in activities that were free of charge: “day use of the swimming and picnic facilities.” [*11] Id.
Stringer, unlike the Colemans, lacked this requisite relationship. Stringer was neither a camper nor a skier;8, he was a snowmobiler. As a snowmobiler, Stringer engaged in an activity not subject to a “charge” under ORS § 105.672(1)(a). This conclusion is further supported by Justice Balmer’s dissenting opinion. In that opinion, Justice Balmer explained:
[U]nder the majority’s reasoning, if a person decided to rent a campsite (or to rent the gazebo), the state may not assert recreational immunity as to injuries suffered by that person while riding on a bike trial, but the state may assert such immunity as to a person who does not rent a campsite and who incurs an identical injury in an identical place on the land.
Coleman, 347 Or. at 109 (Balmer, J., dissenting). Stringer, like the dissent’s hypothetical non-camping bicyclist, is subject to recreational immunity. Had Stringer been either a camper or a skier, the state may have waived recreational immunity under ORS § 105.688. However, that factual scenario is not before this Court.
8 This Court reserves judgment as to whether either the camping fee or ski-lift fee qualify as “charges” under ORS § 105.672(1)(a).
CONCLUSION
For these reasons, defendant’s motion to dismiss, ECF No. 10, is GRANTED.
IT IS SO ORDERED.
DATED [*12] this 21st day of October, 2014.
/s/ Michael J. McShane
Michael J. McShane
United States District Judge
Oregon Recreational Use Statute
Posted: June 26, 2015 Filed under: Oregon | Tags: Forest Service, Oregon, Recreational Use, Recreational Use Statute, Snowmobiling, US Forest Service, USFS Leave a commentOregon Statutes
Title 10. PROPERTY RIGHTS AND TRANSACTIONS
Chapter 105. Property Rights
PUBLIC USE OF LANDS
Current through 2015 Regular Session, Acts 2 through 49, 51 through 187, 189 through 204, 206 through 217, 222, and 228 through 241
§ 105.672. Definitions for ORS 105.672 to 105.696
§ 105.699. Rules applicable to state lands
§ 105.700. Prohibiting public access to private land; notice requirements; damages
§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way
(1) As used in this section:
(a) “Structures” means improvements in a trail, including, but not limited to, stairs and bridges, that are accessible by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.
(b) “Unimproved right of way” means a platted or dedicated public right of way over which a street, road or highway has not been constructed to the standards and specifications of the city with jurisdiction over the public right of way and for which the city has not expressly accepted responsibility for maintenance.
(2) A personal injury or property damage resulting from use of a trail that is in a public easement or in an unimproved right of way, or from use of structures in the public easement or unimproved right of way, by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance does not give rise to a private claim or right of action based on negligence against:
(a) A city with a population of 500,000 or more;
(b) The officers, employees or agents of a city with a population of 500,000 or more to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;
(c) The owner of land abutting the public easement, or unimproved right of way, in a city with a population of 500,000 or more; or
(d) A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in a city with a population of 500,000 or more.
(3) Notwithstanding the limit in subsection (2) of this section to a city with a population of 500,000 or more, by adoption of an ordinance or resolution, a city or county to which subsection (2) of this section does not apply may opt to limit liability in the manner established by subsection (2) of this section for:
(a) The city or county that opts in by ordinance or resolution;
(b) The officers, employees or agents of the city or county that opts in to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;
(c) The owner of land abutting the public easement, or unimproved right of way, in the city or county that opts in by ordinance or resolution; and
(d) A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in the city or county that opts in.
(4) The immunity granted by this section from a private claim or right of action based on negligence does not grant immunity from liability:
(a) Except as provided in subsection (2)(b) or (3)(b) of this section, to a person that receives compensation for providing assistance, services or advice in relation to conduct that leads to a personal injury or property damage.
(b) For personal injury or property damage resulting from gross negligence or from reckless, wanton or intentional misconduct.
(c) For an activity for which a person is strictly liable without regard to fault.
§ 105.672. Definitions for ORS 105.672 to 105.696
As used in ORS 105.672 to 105.696 :
(1) “Charge”:
(a) Means the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.
(b) Does not mean any amount received from a public body in return for granting permission for the public to enter or go upon the owner’s land.
(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.
(2) “Harvest” has that meaning given in ORS 164.813.
(3) “Land” includes all real property, whether publicly or privately owned.
(4) “Owner” means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.
(5) “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.
(6) “Special forest products” has that meaning given in ORS 164.813.
(7) “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.
Cite as ORS 105.672
History. 1995 c.456 §1; 2007 c. 372, §1; 2009 c. 532, §1; 2010 c. 52, § 1
§ 105.676. Public policy
The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, for gardening, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, gardening, woodcutting or the harvest of special forest products.
Cite as ORS 105.676
History. 1995 c.456 §2; 2009 c. 532, §3
§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products
(1) Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.
(2) This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.
Cite as ORS 105.682
History. 1995 c.456 §3; 2009 c. 532, §4
§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights
(1) An owner of land who either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.
(2) The fact that an owner of land allows the public to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products without posting, fencing or otherwise restricting use of the land does not raise a presumption that the landowner intended to dedicate or otherwise give over to the public the right to continued use of the land.
(3) Nothing in this section shall be construed to diminish or divert any public right to use land for recreational purposes acquired by dedication, prescription, grant, custom or otherwise existing before October 5, 1973.
(4) Nothing in this section shall be construed to diminish or divert any public right to use land for woodcutting acquired by dedication, prescription, grant, custom or otherwise existing before October 3, 1979.
Cite as ORS 105.692
History. 1995 c.456 §5; 2009 c. 532, §5
§ 105.699. Rules applicable to state lands
The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.
Cite as ORS 105.699
History. 1979 c.434 §8; 1995 c.456 §7
§ 105.700. Prohibiting public access to private land; notice requirements; damages
(1) In addition to and not in lieu of any other damages that may be claimed, a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:
(a) The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and
(b) The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.
(2) A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:
(a) For land through which the public has no right of way, the landowner or agent must place a notice at each outer gate and normal point of access to the land, including both sides of a body of water that crosses the land wherever the body of water intersects an outer boundary line. The notice must be placed on a post, structure or natural object in the form of a sign or a blaze of paint. If a blaze of paint is used, it must consist of at least 50 square inches of fluorescent orange paint, except that when metal fence posts are used, approximately the top six inches of the fence post must be painted. If a sign is used, the sign:
(A) Must be no smaller than eight inches in height and 11 inches in width;
(B) Must contain the words “Closed to Entry” or words to that effect in letters no less than one inch in height; and
(C) Must display the name, business address and phone number, if any, of the landowner or agent of the landowner.
(b) For land through which or along which the public has an unfenced right of way by means of a public road, the landowner or agent must place:
(A) A conspicuous sign no closer than 30 feet from the center line of the roadway where it enters the land, containing words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____ MILES”; or
(B) A sign or blaze of paint, as described in paragraph (a) of this subsection, no closer than 30 feet from the center line of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders the land, except that a blaze of paint may not be placed on posts where the public road enters the land.
(3) Nothing contained in this section prevents emergency or law enforcement vehicles from entering upon the posted land.
(4) An award of liquidated damages under this section is not subject to ORS 31.725, 31.730 or 31.735.
(5) Nothing in this section affects any other remedy, civil or criminal, that may be available for a trespass described in this section.
Cite as ORS 105.700
History. 1999 c.933 §1
Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596
Posted: June 26, 2015 Filed under: Florida, Legal Case, Paddlesports, Rivers and Waterways | Tags: Canoe Livery, Canoe Trip, Canoeing, Church Group, duty, Guide, Quadriplegic Leave a commentTo Read an Analysis of this decision see
Church was not liable for injuries on a canoe trip because the church did not control the land along the river.
Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596
John Clark, Appellant, v. Lumbermans Mutual Insurance Company and Orange Park Assembly of God, Appellees
No. AU-168
Court of Appeal of Florida, First District
465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596
March 7, 1985
COUNSEL: Adam H. Lawrence of Lawrence & Daniels, Miami; and Brent M. Turbow, Jacksonville, for Appellant.
Charles Cook Howell, III of Howell, Liles, Braddock & Milton, Jacksonville, for Appellee.
JUDGES: Smith, L., J. Mills and Nimmons, JJ., concur.
OPINION BY: SMITH
OPINION
[*553] John Clark, plaintiff below, appeals a final summary judgment in favor of the appellees in this negligence action. After an examination of the whole record, we conclude that no interpretation of the undisputed material facts would support a finding of liability for negligence on the part of the appellee Orange Park Assembly of God (hereinafter “church”). We affirm.
The following facts, taken from depositions filed in this cause, are germane to this appeal. Appellant suffered a broken neck and was rendered a quadriplegic during a diving accident on the St. Mary’s River, located in Nassau County, Florida. The accident occurred during a canoe trip and picnic sponsored, planned and conducted by the appellee church. The church had hired Mr. Gary Hines to be its “minister of youth.” Hines, [**2] a paid, full-time employee of the church, was to direct and coordinate the activities of the church’s youthful members. The trip in question took place June 13, 1981. Its logistics were planned and coordinated by Hines. Approximately 40 to 50 people, including appellant, ultimately participated in the trip. Appellant, a high school graduate, was twenty-one years of age at the time of his injury. He was, in his own words, in excellent health, a good swimmer who was familiar with various water sports.
On the day of appellant’s accident, trip members were transported by church bus and van to a canoe rental establishment located on the St. Mary’s River called the Canoe Outpost. Hines did not attempt extensive instructions to trip members regarding canoe operation or the physical characteristics of the river they were about to traverse. Trip members were instructed by Hines that suitable beaches for swimming existed on the river; however, Hines acknowledged that he had not made inquiries prior to the trip as to the location or suitability of any of the river’s beaches.
During the trip, appellant and a canoeing companion, Lee Brannen, sighted what they thought was a suitable place [**3] for swimming, and beached their canoes. Brannen testified that he ran out into the water approximately three steps and then executed a shallow, racing-type dive into the water, which was approximately chest deep on Brannen, who was six feet one inch tall. Brannen testified he felt it would be “crazy” to attempt a “deep dive,” as he had not yet ascertained the exact depth of the water. Appellant then attempted to execute a similar dive, following what both he and Brannen testified was essentially the same path Brannen had taken in making his dive. Both testified that appellant’s dive differed from Brannen’s. Brannen testified that appellant had not run as far into the water as Brannen had, and that appellant jumped somewhat higher prior to the dive in a manner Brannen characterized as a “piking” of appellant’s body, with the result that appellant’s head and arms preceded the rest of his body into the water. Unfortunately, the result of appellant’s attempted dive was a broken neck and consequent paralysis. The record is unclear as to what, exactly, caused appellant’s injuries, since appellant was unable to state categorically that he hit his head on the river bottom as a result [**4] of his dive. However, all deponents testified that the river bottom area where appellant dove was clear of obstructions.
Appellant instituted the pending action alleging, among other things, that the appellee church had violated its duty to warn of the shallowness of the water in the beach area, where appellant had attempted his dive, failed to determine in advance the safe and unsafe areas to swim along the [*554] St. Mary’s River, and failed to point out proper sites for swimming and diving by the trip members. Appellant also alleged that the church had failed to adequately supervise the canoeing trip.
Appellees moved for summary judgment, asserting that the church breached no legal duty owed the appellant; that appellant had actual knowledge of the allegedly dangerous condition of the beach where his accident occurred; and that appellant’s actions constituted the sole proximate cause of his injury. The trial court granted the motion for summary judgment, finding that the beach area where appellant’s accident occurred contained no latent or unknown dangers; that the appellee church did not breach any legal duty owed the appellant; and that appellant’s actions were the [**5] sole proximate cause of his injury. This appeal followed.
We are governed by certain well known principles applicable in negligence actions. [HN1] Issues of negligence and probable cause will normally be answerable only by a jury, and not by motion for summary judgment, unless the facts adduced “point to but one possible conclusion.” Cassel v. Price, 396 So.2d 258, 260 (Fla. 1st DCA 1981) (citations omitted), rev. den. mem., 407 So.2d 1102 (Fla. 1981). In order to prevail on a motion for summary judgment in a negligence action, the defendant must show either no negligence on his part proximately resulting in injury to the plaintiff, or that the plaintiff’s negligence was the sole proximate cause of his injury. Goode v. Walt Disney World Co., 425 So.2d 1151, 1154 (Fla. 5th DCA 1982), rev. den. mem., 436 So.2d 101 (Fla. 1983). However, as often stated, “the mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone.” Cassel v. Price, supra, at 264 (citations omitted). Judged by these standards, we find that the trial court correctly granted appellees’ motion for summary judgment.
[**6] Initially, we find without merit appellant’s attempt to affix liability based upon breach of a duty of due care by the church as a “possessor” or “occupier” of land. Appellant contends that the church, by allowing appellant and other members of the trip to utilize the beach where appellant was injured, constructively “possessed” this portion of the beach area, citing Arias v. State Farm Fire and Casualty Company, 426 So.2d 1136 (Fla. 1st DCA 1983). We disagree. In Arias, the plaintiff was injured after a “john boat” in which she was a passenger collided with a partially submerged diving dock located in a lake directly in front of lakefront property owned by a defendant on Lake Hampton, in Bradford County. The defendant in Arias argued that since the land beneath the lake was owned by the state, rather than by the defendant, he was not in a position to exercise control over the land upon which the submerged dock rested, and hence he owed the plaintiff no duty to warn of the hazard. The Arias court rejected this contention, stating:
[HN2] The liability of an occupant of real property for injuries caused by an alleged dangerous defective condition on the premises [**7] depends generally upon his control of the property, regardless of whether he had title thereto, or whether he has a superior right to possession of property which is in the possession and control of another. (citation omitted)
Id. at 1138.
There are no facts in this case which would tend to satisfy the elements of “possession” or “control” which led to the court’s decision in Arias. The facts in Arias were that the nearly submerged dock was located several hundred feet directly in front of the defendant’s lakefront property, and that while it was located in the lake before defendant bought the property, the defendant had modified it by placing a thin shelled cement surface on the dock. The Arias court held that it could not be determined, as a matter of law, that the defendant had “failed to maintain the requisite control over the boat dock.” 426 So.2d at 1138. Here, by contrast, the church had no actual or constructive “presence” at the beach prior to the accident. [*555] Appellant and Brannen were the first two canoeists to reach the beach, and hence “occupy” it. Hines arrived a number of minutes after the appellant and other members of the group, [**8] and made no attempt to exercise “de facto” control over the beach or over activities on the beach.
Moreover, the view that potential liability may exist under facts such as found in Arias is premised upon the existence of a hidden danger of which the land owner or occupier has or should have superior knowledge, as compared to the injured party. Here, no evidence was produced to establish the existence of any hidden dangers at the situs of the accident. It was uncontradicted that the river bottom and the beach contained no rocks or obstructions. Nor can the depth of the water itself have been considered a hidden danger, since both appellant and Brannen testified that they were well aware of its relatively shallow depth. Switzer v. Dye, 177 So. 2d 539 (Fla. 1st DCA 1965). Appellant testified that he was aware of the danger of diving into shallow water, and was aware that the water depth at the beach where he was injured was indeed properly characterized as shallow. Hence, there existed in the case at bar no “hidden danger” so as to trigger the rule in Arias.
We think the same result is required here if the potential liability of the church is considered in relation [**9] to its duty to investigate the river for dangerous conditions. The “harmful condition” of the beach (assuming, without accepting, the correctness of this characterization by appellant) was recognized and hence was obvious to all who testified below. Therefore, no breach of duty occurred, since the “harmful condition” was in fact obvious to appellant, who indisputably possessed sufficient maturity to appreciate the danger, and was not in a dependency relationship with the appellee church. See Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert. den., 446 U.S. 909, 100 S. Ct. 1836, 64 L. Ed. 2d 261 (1980); cf. Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (school children between the ages of seventeen and eighteen considered to be under an in loco parentis relationship vis-a-vis school officials).
Appellant also maintains that the church assumed a duty of due care by voluntarily acting as a “tour guide” in organizing and conducting the canoeing trip upon which appellant was injured, citing Kaufman v. A-1 Bus Lines, Inc., 416 So.2d 863 (Fla. 3d DCA 1982) (Kaufman II). There, the plaintiff was injured when she fell off a cat-walk while touring a museum visited by [**10] tour groups sponsored by the defendant. The Third District had previously affirmed the Kaufman trial court’s dismissal of Ms. Kaufman’s initial complaint, but did so without prejudice to her right to file an amended complaint alleging defendant’s actual knowledge of the allegedly dangerous condition that caused her injury. Kaufman v. A-1 Bus Lines, Inc., 363 So. 2d 61 (Fla. 3d DCA 1978) (Kaufman I). Subsequently, Ms. Kaufman filed an amended complaint alleging that the defendant’s actual knowledge of the allegedly dangerous condition causing her injury created a duty to warn on the defendant’s part. The court in Kaufman II found that the defendant could be held liable for negligence while acting as a tour guide, based on the well-known proposition that [HN3] an action undertaken for the benefit of another, even if performed gratuitously, must be performed in accordance with the duty to exercise due care. 416 So. 2d at 864; see also Padgett v. School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981).
We agree with appellant that a church’s sponsorship and organization of a canoeing trip could give rise to a legal duty to exercise reasonable care in exercising [**11] these responsibilities. Padgett, supra. We observe, however, that Kaufman II is distinguishable from the case at bar due to the Kaufman II defendant’s status as a common carrier. Furthermore, in view of the undisputed evidence concerning the circumstances under which the accident occurred, we do not find it necessary to examine the [*556] extent of the church’s duty in this case, or to categorize the relationship between plaintiff and defendant here, which would otherwise guide our decision in determining whether the church carried its burden of showing the absence of evidence indicating a breach of duty by the church causing injury to appellant, as required to entitle it to summary judgment. 1
1 Cf., Section 768.13, Florida Statutes (1981), the “Good Samaritan Act,” with commercial transactions (Kaufman II, the “tour guide” situation) and dependency relationships (Rupp; schools in an in loco parentis relationship with students).
Even assuming, arguendo, that the church [**12] owed a duty of adequate supervision to appellant, the breach of which would render it liable for ordinary negligence, appellant can be barred from recovery if his own action in diving into the shallow water was the sole proximate cause of his accident. Phillips v. Styers, 388 So. 2d 221 (Fla. 2d DCA 1980), quoting Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973): ” [HN4] A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage.” We hold that appellant was properly barred from proceeding further with his claim because the evidence below is susceptible to no conclusion other than that he had sufficient intelligence, experience, and knowledge to – and in fact did – both detect and appreciate the physical characteristics of the swimming place in question and the potential danger involved in attempting his shallow water dive. See, Lister v. Campbell, 371 So. 2d 133 (Fla. 1st DCA 1979), Hughes v. Roarin 20’s, Inc., 455 So. 2d 422 (Fla. 2d DCA 1984). 2
2 See, also, Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 (1969), appeal dismissed, 400 U.S. 922, 91 S. Ct. 192, 27 L. Ed. 2d 183 (1970) (church and its representatives held not liable for negligent supervision of Sunday school picnic at lake resort during which youth drowned while attempting to swim from platform in deep water back to shore).
[**13] For the foregoing reasons, the judgment below is
AFFIRMED.
MILLS and NIMMONS, JJ., CONCUR.
G-YQ06K3L262
http://www.recreation-law.com
Thompson v. Summers, 1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103
Posted: June 26, 2015 Filed under: Legal Case, South Dakota | Tags: Ballooning, FAA, Negligence, Negligence per se, Regulations, Rescue Doctrine, South Dakota, Supreme Court Leave a commentThompson v. Summers, 1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103
Marvin Thompson, Plaintiff and Appellant, v. Charles Summers, Defendant and Appellee.
# 19940
Supreme Court of South Dakota
1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103
June 4, 1997, Argued
August 13, 1997, Opinion Filed
PRIOR HISTORY: [***1]
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT. PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE THOMAS L. TRIMBLE Judge.
DISPOSITION:
Reversed and remanded.
COUNSEL:
DAVE L. CLAGGETT of Claggett & Madsen, Spearfish, South Dakota, Attorneys for plaintiff and appellant.
DONALD A. PORTER of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, South Dakota, Attorneys for defendant and appellee.
JUDGES: SABERS, Justice. KONENKAMP, Justice, concurs. MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur in result.
OPINION BY: SABERS
OPINION: [**389]
SABERS, Justice.
¶2 On September 4, 1993, Charles Summers was piloting a hot air balloon in an instructional flight over Rapid City, accompanied by flight student Matt McCormick. At about 8:25 a.m., Summers attempted to land the balloon in a public recreational area of Rapid City’s flood plain known as the “greenway.” Marvin Thompson, also a hot air balloon pilot, was at the greenway and recognized the balloon as one he sold to Summers. As Thompson observed Summers’ descent, he became concerned the wind was going to drag the balloon into nearby high voltage power lines. As the balloon skimmed across the ground toward the power lines, Thompson ran over and seized the basket of the balloon, hoping to prevent it from making contact with the power lines. Despite his efforts, Thompson suffered severe electrical burns to over 60% of his body. Summers and McCormick were apparently not injured.
¶3 Thompson sued Summers for his injuries, claiming he was negligent in not employing the rip cord to “rip out” the balloon, a procedure which instantly deflates and stops the balloon. Failure to do so, he claims, was negligence and the cause of his injuries. He argues that, under the “rescue doctrine,” it was foreseeable to Summers that a bystander might intervene when Summers’ negligence put others in peril. In addition, Thompson claims Summers violated several state and federal statutory duties of care pertaining to hot air balloon piloting and landing safety, including proper use of the ripcord.
¶4 Without submitting an answer, Summers made a motion to dismiss the complaint, alleging that Thompson failed to state a claim upon which relief could be granted according to SDCL 15-6-12(b)(5) [hereinafter Rule 12(b)(5) ], which provides:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
…
(5) Failure to state a claim upon which relief can be granted[.] [1]
The trial court granted the motion and dismissed the complaint with prejudice. Thompson appeals.
STANDARD OF REVIEW
¶5 A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff’s claim, not the facts which support it. Stumes v. Bloomberg, 1996 SD 93, p 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993) (citations omitted). The motion is viewed with disfavor and is rarely granted. Schlosser directs the trial court to consider the complaint’s allegations and any exhibits which are attached. The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom. The motion may be directed to the whole complaint or only specified counts contained in it…. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) ]. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and “examine the complaint to determine if the allegations provide for relief on any possible theory.” [quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1971) ].
506 N.W.2d at 418 (emphasis added). As this appeal presents a question of law, our review is de novo, with no deference given to the trial court’s legal conclusions. City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771.
¶6 WHETHER ANY LEGAL THEORY EXISTS TO SUPPORT THOMPSON’S CLAIM.
¶7 Thompson advances at least three legal theories which may support his cause of action. We need not, and do not, decide whether he will ultimately succeed on any of these theories. See Schlosser, 506 N.W.2d at 418:
[P]leadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action as this is a matter of proof, not pleadings. The rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations.
(Quoting Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985) (citing Federal Practice and Procedure, supra )).
¶8 First, Thompson argues that the common law of negligence, particularly the “rescue doctrine,” is applicable to this case. [2] That doctrine is simply an adjunct of the common law of negligence. It is “nothing more than a negligence doctrine addressing the problem of proximate causation.” Lowery v. Illinois Cent. Gulf R.R. Co., 891 F.2d 1187, 1194 (5th Cir.1990); accord Stuart M. Speiser et al., The American Law of Torts § 9:23, at 1147 (1985) (“In considering the rescue doctrine and its ramifications, it must be always kept in mind that many–if, indeed not most–American courts regard it in terms of proximate causation.”). This theory provides that one who, through negligence, jeopardizes the safety of another, may be held liable for injuries sustained by a “rescuer” who attempts to save the other from injury. See 57A AmJur2d Negligence § 689 (1989):
A rescuer’s right of action against the initial negligent actor rests upon the view that one who imperils another at a place where there may be bystanders, must take into account the chance that some bystander will yield to the impulse to save life or even property from destruction and will attempt a rescue; negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.
(Footnotes & citations omitted). Interestingly, the rescue doctrine can be traced to an 1822 case involving a crowd rushing to assist a descending balloonist. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 44, at 307 & n.63 (5th ed.1984) (citing Guille v. Swan, 19 Johns. 381 (N.Y.1822), and noting that since that case, the concept of the rescuer is “nothing abnormal”).
¶9 Summers argues that Thompson cannot raise this theory in this appeal because he did not present it to the trial court. We disagree for two reasons: First, Thompson’s complaint and his brief in opposition to the motion to dismiss adequately set forth his reliance on the rescue doctrine. [3] In his complaint, he stated:
Plaintiff perceived the situation to be an imminent threat to the general public on land and further perceived Defendant and Matt McCormick to be in imminent danger of severe physical harm or death. Plaintiff, in an attempt to prevent the same, went to the location of the balloon and grabbed on to it to help prevent it from drifting into the power lines.
(Emphasis added). In his brief, he reiterates the foregoing portion of his complaint, and adds: “Thompson responded to the emergency. In attempting to prevent an accident from happening, he grabbed the balloon to help prevent it from hitting the power lines.”
¶10 In opposing the motion to dismiss, Thompson briefed the case of Olson v. Waitman, 88 S.D. 443, 221 N.W.2d 23 (S.D.1974), which is not precisely on point, but somewhat analogous to the rescue doctrine, and certainly a common law negligence case. That case held that the jury was properly instructed that a plaintiff may have been contributory negligent when she was pinned under a car after she got behind it to push it from a ditch. However, it was error to so instruct the jury on the plaintiff’s second claim of negligence (she was severely burned after the defendant attempted to drive the car off of her). This court held that the plaintiff had two separate claims of negligence against the defendant and stated:
Regardless of how negligent the plaintiff may have been in getting into this predicament, she did not thereby give the defendant license to thereafter injure her with impunity. Id. at 446, 221 N.W.2d at 25 (remanding for new trial with proper instructions).
¶11 Clearly, Thompson adequately outlined his claim even if he did not include the term “rescue doctrine”. See, e.g., Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899, 100 SCt 208, 62 L.Ed.2d 135 (1979) (stating that a complaint should not be dismissed because it does not state with precision all elements that give rise to a legal basis for recovery); accord Jackson Sawmill Co., Inc., v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).
¶12 The second reason we disagree with Summers’ argument that Thompson cannot raise a legal theory for the first time on appeal concerns the nature of a Rule 12(b)(5) motion. It is settled law that the trial court is under a duty to determine if the plaintiff’s allegations provide for relief on any possible theory, regardless of whether the plaintiff considered the theory. Schlosser, 506 N.W.2d at 418; Eide v. E.I. Du Pont De Nemours & Co., 1996 SD 11, p 7, 542 N.W.2d 769, 771; Federal Practice and Procedure § 1357; Seeley v. Brotherhood of Painters, 308 F.2d 52, 58 (5thCir.1962) (“[T]he theory of the plaintiff in stating his claim is not so important and the complaint should not be dismissed on motion unless, upon any theory, it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved in support of his claim.”); cf. Doss v. South Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir.1987) (“[T]he fact that a plaintiff pleads an improper legal theory does not preclude recovery under the proper theory.”); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir.1979) (“The ‘theory of the pleadings’ doctrine, under which a plaintiff must succeed on those theories that are pleaded or not at all, has been effectively abolished under the federal rules.”).
¶13 Summers argues the motion to dismiss was properly granted because Thompson cannot establish a duty owed by Summers to Thompson. Summers claims that he would have had to request Thompson’s assistance to establish a duty under these circumstances. At the very least, he argues, Summers must have been aware of Thompson’s presence. [4] At oral argument, counsel for Summers went so far as to state there must be a “relationship” between the plaintiff and the defendant before a duty can be established. On the contrary, it is foreseeability of injury to another, not a relationship with another, which is a prerequisite to establishing a duty necessary to sustain a negligence cause of action. See SDCL 20-9-1, wherein the Legislature codified the common law of negligence: “Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.” See also Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 662 (S.D.1995), where this court stated, “To establish a duty on the part of the defendant, it must be foreseeable that a party would be injured by the defendant’s failure to discharge that duty.”
¶14 Additionally, Summers misapprehends the principles of the rescue doctrine. The basic theory of this doctrine is that the defendant’s negligence in placing another in a position of imminent peril is not only a wrong to that person, but also to the rescuing plaintiff. Wharf v. Burlington N. R.R. Co., 60 F.3d 631, 635 (9th Cir.1995); Dinsmoore v. Board of Trustees of Memorial Hosp., 936 F.2d 505, 507 (10thCir.1991); Lowery, 891 F.2d at 1194; Bonney v. Canadian Nat’l Ry. Co., 800 F.2d 274, 276 (1st Cir.1986); Barger v. Charles Mach. Works, Inc., 658 F.2d 582, 587 (8th Cir.1981); Barnes v. Geiger, 15 Mass.App.Ct. 365, 446 N.E.2d 78, 81-82 (1983) (collecting cases); Metzger v. Schermesser, 687 S.W.2d 671, 672 (Mo.Ct.App.1985); see generally The American Law of Torts, supra § 9:23; Prosser & Keeton, supra § 44, at 307-09 (collecting cases from nearly every state). The rescuer may also recover from the imperiled party if that party’s negligence caused the peril. Wharf, 60 F.3d at 635. As indicated above, “negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.” 57A AmJur2d Negligence § 689 (1989). Judge Cardozo’s statement regarding the rescue doctrine is often quoted in these cases:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 437 (1921).
¶15 This theory of “duty” comports with the well-established view of this court. See, e.g., Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d 227, 229-30 (S.D.1994) (“Whether a duty exists depends on the foreseeability of injury.”); accord Muhlenkort, 530 N.W.2d at 662; see also Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assocs. Co., 500 N.W.2d 250, 254 (S.D.1993) (“We instruct trial courts to use the legal concept of foreseeability to determine whether a duty exists.”).
¶16 Under Thompson’s second theory, he claims that Summers violated a standard of care as provided in SDCL chapter 50-13, “Air Space and Operation of Aircraft.” “Aircraft” includes balloons. SDCL 50-13-1. SDCL 50-13-4 provides:
Flight in aircraft over the lands and waters of this state is lawful, unless … so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.
See also SDCL 50-13-6, which provides, in relevant part:
The owner and the pilot, or either of them, of every aircraft which is operated over lands or waters of this state shall be liable for injuries or damage to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom in accordance with the rules of law applicable to torts in this state.
Additionally, SDCL 50-13-16 provides:
It is a Class 1 misdemeanor to operate an aircraft within the airspace over, above and upon the lands and waters of this state, carelessly and heedlessly in intentional disregard of the rights or safety of others, or without due caution and circumspection in a manner so as to endanger or be likely to endanger any person or property.
All of these statutes were presented to the trial court. This court has consistently held that “an unexcused violation of a statute enacted to promote safety constitutes negligence per se.” Bell v. East River Elec. Power Coop., Inc., 535 N.W.2d 750, 755 (S.D.1995) (citing Engel v. Stock, 88 S.D. 579, 225 N.W.2d 872, 873 (1975); Bothern v. Peterson, 83 S.D. 84, 155 N.W.2d 308 (1967); Blakey v. Boos, 83 S.D. 1, 153 N.W.2d 305 (1967)).
¶17 Third, Thompson argues that Summers violated certain federal regulations [5] relating to hot air balloon piloting and landing safety, including proper use of the ripcord in emergency operations. See, e.g., 14 C.F.R. § 61.125(e)(5), which requires applicants for a commercial certificate for piloting balloons to have knowledge in
Operating principles and procedures for free balloons, including emergency procedures such as crowd control and protection, high wind and water landings, and operations in proximity to buildings and power lines.
Additionally, id. § 61.127(f) sets minimum proficiency requirements for balloon pilots and requires competence in, among other procedures, landing and emergency operations, including the use of the ripcord. See also id. § 91.13 (“No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”). These regulations were presented to the trial court.
¶18 Whether Summers violated one or more of these statutes and regulations, and if so, whether the violation was the proximate cause of Thompson’s injuries constitutes a question for the factfinder. Violation of the statute “alone is not sufficient to render them liable to the plaintiff. Before they may be held to respond in damages it must further appear that their violation of the duty placed on them by this rule was the proximate cause of plaintiff’s injury. The burden of establishing this is on the plaintiff.” Blakey, 83 S.D. at 8, 153 N.W.2d at 309 (citation omitted); accord Musch v. H-D Coop., Inc., 487 N.W.2d 623, 625-26 (S.D.1992):
With regard to the proximate cause issue, this court has recognized that the mere violation of a statute is insufficient to support an action for damages. Rather, a plaintiff must show that the violation of a statutory duty was the proximate cause of his injury to support a recovery in negligence. Serles v. Braun, 79 S.D. 456, 113 N.W.2d 216 (1962); Zeller v. Pikovsky, 66 S.D. 71, 278 N.W. 174 (1938). In Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981), we stated: “For proximate cause to exist, ‘the harm suffered must be found to be a foreseeable consequence of the act complained of…. The negligent act must be a substantial factor in bringing about the harm.’ Williams v. United States, 450 F.Supp. 1040, 1046 (D.S.D.1978).”
(Emphasis & alterations omitted). Questions of proximate cause are for the jury in “all but the rarest of cases.” Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995); Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 903 (S.D.1994); Holmes v. Wegman Oil Co., 492 N.W.2d 107, 114 (S.D.1992).
CONCLUSION
¶19 “Negligence is the breach of a legal duty imposed by statute or common law.” Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988) (citing Walz v. City of Hudson, 327 N.W.2d 120, 122 (S.D.1982)). Thompson clearly outlined a claim under a common-law negligence theory. See id. (“The three necessary elements of actionable negligence are: (1) A duty on the part of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure.”). The rescue doctrine is part of the common law of negligence. Therefore, under the law governing a motion to dismiss under Rule 12(b)(5), it was improper to dismiss Thompson’s lawsuit even if the doctrine was not yet addressed in South Dakota. [6]
¶20 Additionally, Thompson set out South Dakota statutes and federal regulations which establish the standard of care for a hot air balloon pilot. The question is “whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief.” Schlosser, 506 N.W.2d at 418 (emphasis added). Thompson asserts at least three theories which may support his cause of action. Therefore, the trial court erred in holding as a matter of law that Thompson did not allege a duty owed by Summers. Whether he can ultimately succeed presents questions not capable of resolution by a motion to dismiss. We reverse and remand for trial.
¶21 KONENKAMP, J., concurs.
¶22 MILLER, C.J., and AMUNDSON and GILBERTSON, JJ., concur in result.
MILLER, Chief Justice (concurring in result).
¶23 I agree with Justice Sabers’ ultimate result and his discussion noting that Thompson’s complaint states various theories which may support the cause of action (common-law negligence, state statutes and federal regulations). I must merely concur in result, however, because I disagree with and disassociate myself from the discussion and analysis of the rescue doctrine, specifically pp 8-16 supra.
¶24 Analysis of the propriety and applicability of the rescue doctrine at this juncture in these proceedings is premature at best. The doctrine was not argued or advanced by Thompson as a theory to support his cause of action below. It is well settled that we will not review issues which have not been presented to the trial court. Boever v. Board of Accountancy, 526 N.W.2d 747, 750 (S.D.1995); Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 866 (S.D.1994) (citations omitted). Matters not determined by the trial court are not appropriate for appellate review. See Schull Construction Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963). The parties agree and the trial court’s memorandum indicates that the rescue doctrine was not considered in the trial court’s grant of the motion to dismiss. [7] Accordingly, we need not and should not examine the doctrine at this time. [8]
¶25 Any contention that the rescue doctrine was presented to the trial court via the language of the complaint is not persuasive reasoning for reviewing the rescue doctrine as a possible theory of recovery, especially when Thompson specifically concedes he failed to consider the doctrine or present it for the trial court’s consideration. While pleadings need not be so artfully drafted as to specifically list each and every possible claim, the complaint must set forth the facts alleged and contain the essential elements of the cause of action pursued in order to be sufficient. Harmon v. Christy Lumber, Inc., 402 N.W.2d 690, 693 (S.D.1987). See also Weller v. Spring Creek Resort, Inc., 477 N.W.2d 839, 841-42 (S.D.1991). Our deferential standard of review allowing complaints to survive a motion to dismiss for failure to state a claim so long as the “complaint states any valid claim for relief …. ‘on any possible theory,’ ” Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993) (citations omitted), does not require the trial court to ferret out and advance a theory on behalf of a party which has not been recognized in this jurisdiction. Such a requirement would put the trial court in the inappropriate position of advocating on behalf of a party and would unduly strain judicial resources in an effort to explore every conceivable theory, whether recognized in this jurisdiction or not.
¶26 Thompson’s complaint states sufficient theories to support his cause of action; therefore, the trial court’s grant of the motion to dismiss was in error and I agree with Justice Sabers that it should be reversed. However, I respectfully assert that the issue of whether the rescue doctrine is a valid theory of common-law negligence in this jurisdiction should be left until another day when the issue has been properly presented for our review.
¶27 I am authorized to state that Justices AMUNDSON and GILBERTSON join in this concurrence in result.
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Notes:
[1] SDCL 15-6-12(b)(5) is identical to Federal Rule of Civil Procedure 12(b)(6).
[2] In response to Chief Justice Miller’s special writing, we are reversing on precisely the three theories which he lists as meriting reversal. The rescue doctrine is not, standing alone, a viable theory. It is part of negligence in the same way that respondeat superior, vicarious liability, imputed negligence, and concurrent negligence are a part of negligence. Whether the rescue doctrine will be adopted in South Dakota is premature at this state of the proceedings and must await proper disposition upon remand.
However, the rescue doctrine was pled, argued, and reached even if the precise term “rescue doctrine” was not employed. The complaint clearly demonstrates that Thompson set forth the facts and essential elements of this cause of action. The sum total of the trial court’s decision is as follows:
Defendant’s Motion to Dismiss for failure to state a claim upon which relief can be granted is hereby granted. In order for a negligence action to stand, there must be a duty on the part of the defendant running to the plaintiff; the existence of such a duty is a question of law for the Court. This Court finds that no such duty has been established by the Plaintiff in the case at bar, and therefore the case is dismissed. Defendant is requested to draft and submit the appropriate Order.
By determining that no duty existed, the trial court rejected all three theories, including the common law of negligence, of which the rescue doctrine is a part.
[3] While Thompson’s complaint did not include the term “rescue doctrine”, it pleads a legally sufficient cause of action for negligence under “notice pleading” theory. See SDCL 15-6-8(a):
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain
(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and
(2) a demand for judgment for the relief to which he deems himself entitled.
Relief in the alternative or of several different types may be demanded.
(Emphasis added); see also Norwest Bank Black Hills v. Rapid City Teachers Fed. Credit Union, 433 N.W.2d 560, 563 (S.D.1988) (“Under SDCL 15-6-8(a) it is not necessary to plead ‘duty’ in negligence cases where the existence of a duty may be logically inferred from the claim stated in one’s complaint.”); accord Korstad-Tebben, Inc. v. Pope Architects, Inc., 459 N.W.2d 565, 568 (S.D.1990). Thompson claimed that Summers breached a duty to him by failing to rip out the balloon. It did not require the trial court to “explore every conceivable theory” (infra p 25 (Miller, C.J., concurring in result)) to ascertain whether a duty was indeed owed. Duty is based upon foreseeability of injury to another. Analysis of this case depends upon whether injury to Thompson was foreseeable to Summers, and the rescue doctrine simply facilitates the analysis.
[4] Although not material on a motion to dismiss, Summers claims he did not know until afterward that Thompson tried to help him land safely. As noted, the court accepts the pleader’s description of events. Schlosser, 506 N.W.2d at 418.
[5] “The reasons which persuaded us to hold that the violation of a safety statute or ordinance is negligence as a matter of law apply with equal validity to safety rules and regulations[.]” Blakey, 83 S.D. at 7, 153 N.W.2d at 308.
[6] While this is the first time issues involving the rescue doctrine have been presented to this court, the public policy inherent in the doctrine is already in our statutes. The policy underlying the rescue doctrine is the public’s need for quick and courageous action in emergency situations. Compare SDCL 20-9-4.1, which provides individuals general immunity from liability for their actions in emergency situations:
No peace officer, conservation officer, member of any fire department, police department and their first aid, rescue or emergency squad, or any citizen acting as such as a volunteer, or any other person is liable for any civil damages as a result of their acts of commission or omission arising out of and in the course of their rendering in good faith, any emergency care and services during an emergency which is in their judgment indicated and necessary at the time. Such relief from liability for civil damages shall extend to the operation of any motor vehicle in connection with any such care or services….
(Emphasis added). By adopting this “Good Samaritan” statute, the Legislature adopted the public policy of encouraging persons, and–as the emphasized language indicates–not just professional persons, to act on their instinct when confronted with emergency situations. Of course, persons paid to act in emergencies cannot recover from the tortfeasor under the rescue doctrine. See, e.g., Gray v. Russell, 853 S.W.2d 928, 931 (Mo.1993) (en banc) (explaining the rationale for the “firefighter rule”):
Firefighters and police officers are hired, trained, and compensated to deal with dangerous situations affecting the public as a whole. Because of their exceptional responsibilities, when firefighters and police officers are injured in the performance of their duties the cost of their injuries should also be borne by the public as a whole, through the workers’ compensation laws and the provision of insurance benefits and special disability pensions.
(Citation omitted).
[7] At oral argument, Summers argued and Thompson conceded that the trial court was never presented with the rescue doctrine theory and did not reach the issue.
[8] There are a number of reasons for leaving an analysis of the rescue doctrine for another day. The rescue doctrine presents an issue of first impression in this jurisdiction. The failure to raise the doctrine below foreclosed the opportunity for full briefing and presentation of argument on the issue. The rescue doctrine should not be analyzed without the benefit of all the pertinent authorities and public policy arguments if a complete and informed decision is to be reached.
Additionally, “[p]rinciples of judicial restraint dictate that when an issue effectively disposes of the case, other issues that are presented should not be reached.” Poppen v. Walker, 520 N.W.2d 238, 248 (S.D.1994). The conclusion that the trial court’s motion to dismiss should be reversed on other theories negates the necessity of addressing the rescue doctrine on this appeal.
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Sorry Mr. 5 year old kid you bounced 3 times on the diving board that will be $250 or three days at hard labor
Posted: June 24, 2015 Filed under: Ohio, Swimming | Tags: Avon, Avon Ohio, City Pool, Rules, swimming pool Leave a commentOhio city contemplating making it criminal to violate swimming pool rules. (If criminal laws work, why do we have prisons?) A swimmer education program would be too much trouble and might save lifes?
There is no way to explain this, you just have to read the article. Avon drafts new pool rules with fines, charges and jail time as punishments.
How many double jumping five year olds do you think understand the difference between a rule and a law?
Since it is a law, and you are presumed to know and understand the law, the city does not even have to post signs about the rules. They can open the pool for free and just turn it into a source of revenue for the city.
Here are some of the rules from the article.
· No Gum
· No Cameras
· No Coolers
· Only one bounce permitted on the diving board
· Weak or non-swimmers are to remain in shallow, shoulder height water. (We will identify you when we find you at the bottom of the pool)
· Anyone under the influence of alcohol or drugs will be refused entry or removed from the premises.
· Horseplay (running, shoving, dunking, disobeying water feature rules, etc.) and profanity are not permitted.
· Persons with infectious diseases, open sores, or recently with diarrhea are not permitted in the pool(s) or sprayground. (OK, so how are these people spotted? Besides brown stripes on their bathing suits)
· Lifeguards are responsible for enforcing any additional rule& that, in their judgment, will help maintain a safe pool for your use and pleasure. (Even better, lifeguards are now allowed to make up rules to make your life a living hell cause you did not go out with me last week.)
· Water is not meant for drinking (so I guess we are pushing the concession stand big time…..)
· Take regular rest room breaks (You, yes you, you have not gone to the bathroom for 1 hour. You are in bathroom timeout!)
· Do not engage in prolonged underwater breath holding (another group that will be identified on the bottom of the pool. Who decides what prolonged is by the way?)
· Enter water feet first, no diving in shallow water, (but what about deep water?)
· No running on the diving board (makes sense I guess with only one bounce…)
· No acrobatic dives
· Patrons may not catch younger children who are jumping off the board. (the city prefers to let them drown?)
· Competitive diving requires appropriate supervision. (Cause we don’t want your friends saying that was a great dive, we only want judges!)
You can find the complete list of rules here.
Are we may be giving lifeguards too much power. Will the lifeguards in addition to taking Red Cross training have to be certified law enforcement officers to issue tickets? (Where are they going to keep their ticket book in swim trunks?)
This is how stupid this gets.
“If you do have a child deliberately breaking the rules we want to have the ability to come back and say, ‘hey you’re not supposed to be doing that,'” Jensen added.
It isn’t enough to have a rule that would allow you to through someone out of the pool and keep them out.
Is there a power hungry pool supervisor behind the scenes plotting the over through of Avon Ohio?
Why is the city council making the rules for the pool? Isn’t that the job of the park manager or the pool manager? Avon city council, got nothing else to do?
Can you see someone like the soup Nazis standing next to the diving board screaming at each kid “one jump for you!”
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Don’t charge for your backyard BBQs and your state Recreational Use Statute probably applies
Posted: June 22, 2015 Filed under: Michigan | Tags: Backyard, Land Skis, Michigan, Recreational Use Statute Leave a commentIt also helps the defense if you have tried the activity twice already and fallen which is how you were injured the third time.
Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127
State: Michigan, Court of Appeals of Michigan
Plaintiff: Diane A Winiecki
Defendant: Herbert Wolf and Katherine Wolf, landowners, and Richard George, land ski maker
Plaintiff Claims: Negligence probably, but never specifically identified
Defendant Defenses: Michigan Recreational Use Statute
Holding: For the Defendant Landowner
Year: 1985
The plaintiff was a cousin of the land owner. The land owner was hosting a family reunion in their back yard. The defendant Richard George had made a pair of “land skis” which consisted of “two wooden planks with foot holes made from pieces of inner tube.”
Two teams were formed to race around a tree and back. Everyone who tried the game fell. The plaintiff fell twice before falling a third time and injuring herself.
She sued for her injuries. The trial court dismissed her complaint and this appeal followed.
Analysis: making sense of the law based on these facts.
The trial court dismissed the complaint based on the Michigan Recreational Use Statute. The statute quoted in the case has changed. The new act is called MCL 324.73301 Liability of landowner, tenant, or lessee for injuries to persons on property for purpose of outdoor recreation or trail use, using Michigan trailway or other public trail, gleaning agricultural or farm products, fishing or hunting, or picking and purchasing agricultural or farm products at farm or “u-pick” operation; definition
The statute has been expanded considerably since this decision, however, the paragraph quoted by the quote is the same.
(1) Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.
The plaintiff’s major attempt at defeating the statute was arguing the statute did not apply to backyards, only other tracts. The court did not find any limiting language in the statute that would prohibit the statute from being applied in this case.
The duty of the courts is to interpret statutes as we find them. A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. The courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Ordinary words are to be given their plain and ordinary meaning.
The court also stated the statute would not protect a landowner from gross negligence or willful and wanton misconduct. However there were insufficient allegations made in the complaint for either a gross negligence or a willful and wanton claim to be upheld.
The case was dismissed.
So Now What?
I doubt that being asked to supply a side dish would change this decision.
What do you think? Leave a comment.
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Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127
Posted: June 19, 2015 Filed under: Legal Case, Michigan, Skiing / Snow Boarding | Tags: Backyard, Land Skis, Michigan, Recreational Use Statute Leave a commentWiniecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127
Diane A Winiecki, Plaintiff-Appellant, v. Herbert Wolf and Katherine Wolf, Defendants-Appellees, and Richard George, Defendant
Docket No. 80207
Court of Appeals of Michigan
147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127
June 26, 1985, Submitted
August 22, 1985, Decided
COUNSEL: Marshal E. Hyman, Birmingham, for plaintiff.
W. J. Zotter, Coticchio, Zotter & Sullivan, P.C., Detroit, for defendants.
JUDGES: R. M. Maher, P.J., and Bronson and D. F. Walsh, JJ.
OPINION BY: PER CURIAM
OPINION
[*743] [**120] Plaintiff appeals from an order of the Macomb County Circuit Court granting defendants Wolfs’ motion for summary judgment of dismissal, GCR 1963, 117.2(1).
Defendants Herbert and Katherine Wolf held a family reunion at their home in Tuscola County. Plaintiff is a cousin of Katherine Wolf. Another cousin, defendant Richard George, brought “land skis”, two wooden planks with foot holes made from pieces of inner tube which he manufactured himself, to the reunion. A game was played with the land skis involving two teams which were to race down to a tree in the yard and back. According to defendants, everyone fell down when they played. The third time plaintiff fell, she sustained injuries to her hip and pelvis which may require [*744] long-term medical care. Plaintiff filed this action to recover damages for her injuries.
The trial court granted defendants Wolfs’ motion for summary judgment based solely on the ground that the [***2] recreational use statute, MCL 300.201; MSA 13.1485, precluded plaintiff’s action against the defendant landowners. The issue on appeal is the correctness of the trial court’s application of that statute to this case.
The recreational use statute provides:
[HN1] “No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.”
Plaintiff, citing various indications of legislative intent, argues that the statute was not intended to protect landowners from liability for injuries occurring in their backyards. Defendants Wolf own a tract of land measuring 7.8 acres, but the land ski game was allegedly played on the lawn behind the garage.
[HN2] The duty of the courts is to interpret statutes as we find them. Melia v Employment Security Comm, 346 Mich 544, 561; 78 [***3] NW2d 273 (1956). A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959). The courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Id. Ordinary words are to be given their plain and [*745] ordinary meaning. Carter Metropolitan Christian Methodist Episcopal Church v Liquor Control Comm, 107 Mich App 22, 28; 308 NW2d 677 (1981).
This statute, as the trial court has already observed, is clear and unambiguous. Plaintiff was a person on the lands of another, without paying a consideration, for the purpose of an outdoor recreational use. [HN3] The statute offers nothing on its face excluding from its application the backyard of residential property. If the Legislature did not intend the statute to apply to parcels of land this size, it was within its power to insert words limiting the statute’s application, e.g., to lands in their natural state. As we, however, are constrained to apply the statute as written, we cannot say that the trial court erred in relieving defendants of liability based on the [***4] recreational use statue.
[HN4] The recreational use statute does not protect landowners from liability for gross negligence or for wilful and wanton misconduct. Plaintiff’s complaint, however, does not include allegations sufficient to make out a claim either of gross negligence or of wilful and wanton misconduct. McNeal v Dep’t of Natural Resources, 140 Mich App 625, 633; 364 NW2d 768 (1985); Matthews v Detroit, 141 Mich App 712, 717-718; 367 NW2d 440 (1985). The trial court correctly concluded that plaintiff had failed to state a claim of gross negligence or of wilful and wanton misconduct.
Affirmed.
Michigan Recreational Use Statute
Posted: June 19, 2015 Filed under: Michigan | Tags: Recreational Use Act, Recreational Use Statute Leave a commentMCL 324.73301 Liability of landowner, tenant, or lessee for injuries to persons on property for purpose of outdoor recreation or trail use, using Michigan trailway or other public trail,
gleaning agricultural or farm products, fishing or hunting, or picking and purchasing agricultural or farm products at farm or “u-pick” operation; definition
Chapter 324. NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT
Article III. NATURAL RESOURCES MANAGEMENT
Chapter 4. RECREATION
Subchapter 1. RECREATION
RECREATIONAL TRESPASS
Part 733. LIABILITY OF LANDOWNERS
Current through P.A. 42 of the 2015 Legislative Session
§ 324.73301. Liability of landowner, tenant, or lessee for injuries to persons on property for purpose of outdoor recreation or trail use, using Michigan trailway or other public trail, gleaning agricultural or farm products, fishing or hunting, or picking and purchasing agricultural or farm products at farm or “u-pick” operation; definition
(1) Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.
(2) A cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of entering or exiting from or using a Michigan trailway as designated under part 721 or other public trail, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. For purposes of this subsection, a Michigan trailway or public trail may be located on land of any size including, but not limited to, urban, suburban, subdivided, and rural land.
(3)A cause of action shall not arise against the owner, tenant, or lessee of land or premises for injuries to a person who is on that land or premises for the purpose of gleaning agricultural or farm products, unless that person’s injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.
(4) A cause of action shall not arise against the owner, tenant, or lessee of a farm used in the production of agricultural goods as defined by section 35(1)(h) of the former single business tax act, 1975 PA 228, or by section207(1)(d) of the Michigan business tax act, 2007 PA 36, MCL 208.1207, for injuries to a person who is on that farm and has paid the owner, tenant, or lessee valuable consideration for the purpose of fishing or hunting, unless that person’s injuries were caused by a condition which involved an unreasonable risk of harm and all of the following apply:
(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.
(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or to warn the person of the condition or risk.
(c) The person injured did not know or did not have reason to know of the condition or risk.
(5) A cause of action shall not arise against the owner, tenant, or lessee of land or premises for injuries to a person, other than an employee or contractor of the owner, tenant, or lessee, who is on the land or premises for the purpose of picking and purchasing agricultural or farm products at a farm or “u-pick” operation, unless the person’s injuries were caused by a condition that involved an unreasonable risk of harm and all of the following apply:
(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.
(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or to warn the person of the condition or risk.
(c) The person injured did not know or did not have reason to know of the condition or risk.
(6) As used in this section, “agricultural or farm products” means the natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary, including, but not limited to, trees and firewood.
Cite as MCL 324.73301
History. Amended by 2007, Act 174, s 4, eff. 12/21/2007.
Add. 1995, Act 58, Imd. Eff. May 24, 1995 .
Walnut Canyon National Monument celebrating its 100th Anniversary this Summer. Great Place for a Picnic
Posted: June 18, 2015 Filed under: Arizona | Tags: x, y, z Leave a commentCelebrate 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.
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
$2.1 M award after jury trial for snow tubing injury in PA.
Posted: June 17, 2015 Filed under: Assumption of the Risk, Pennsylvania, Snow Tubing | Tags: Snow Tubing, Tubing, tubing hill Leave a commentThe way the plaintiff arrived at the hill with tickets unintentionally skirted the release & risk management procedures in this case. The rest of the mistakes were just dumb. Appeal should follow.
This is an article from Pennsylvania written after a jury verdict. It is before an appeal, if any. Do not rely on it for any law, but it is full of interesting risk management issues.
Please read the article: Berks jury awards $2.1M to man in snow tubing crash
A Pennsylvania verdict against a ski area with a tubing hill was for $2.1 million. The plaintiff was part of a group. After skiing all day a friend in the group gave him tubing tickets. He went tubing without signing the release because he already had tickets.
Risk Management Issue Number 1: how do you sell tickets and get release signed
The plaintiff went down the run and hit the stop at the bottom incurring some injuries along the way. Before he could get out of the way, another tuber hit him either increasing his injuries or creating new, worse injuries.
Risk Management Issue Number 2: how do you design a run so that the tubers are not “stopped” but slow to a gentle stop?
Risk Management Issue Number 3: how do you make sure tubers don’t run into each other?
Risk Management Issue Number 4: how do you create a safe exit from the tubing hill
The lawsuit was based on failure to warn which then brings up how many signs can you have posted or should you just put up a drive through screen to have everyone watch for an hour.
I knew a raft company that required people to hand in their release to get their PFD. No PFD you could not get on the bus to go raft.
What else could you do?
Do Something
This case is the perfect example of a combination of “errors” and an injury lead to a massive payout.
This is a great example of holes in a program. How many you can afford to fill is the biggest question. Also remember that the article was based on what the reporter figured out from attending the trial and what he was told by the plaintiff at the end of the trial. The facts might be different.
How knows what the ending may be or where this is going, we probably will never know.
Read the article: Berks jury awards $2.1M to man in snow tubing crash
What do you think? Leave a comment.
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If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Posted: June 15, 2015 Filed under: Adventure Travel, Jurisdiction and Venue (Forum Selection), Kansas | Tags: Bahamas, Forum selection clause, Jurisdiction, Jurisdiction and Venue (Forum Selection), Venue Leave a commentThe exception is cheap vacations where the hotels and resorts won’t have you sign a forum selection clause when you arrive.
Mcarthur v. Kerzner International Bahamas Limited, 2015 U.S. App. LEXIS 5058
State: Kansas, United States Court of Appeals For The Eleventh Circuit
Plaintiff: John C. Mcarthur, Sandra S. Mcarthur
Defendant: Kerzner International Bahamas Limited, Kerzner International Limited, Island Hotel Company Limited, Paradise Island Limited
Plaintiff Claims: negligence
Defendant Defenses: Forum Selection Clause
Holding: For the Defendant
Year: 2015
The plaintiffs, husband and wife, went to the Bahamas to watch a college basketball tournament. While at a resort, the husband slipped and fell near the pool injuring his back. The plaintiff’s filed a lawsuit in the federal district court in Kansas. The defendants filed a motion to dismiss based on the forum selection clause the plaintiff’s had signed.
A forum selection clause is the same as a jurisdiction and venue clause. It identifies the place and the law that will be applied to the case.
The district court dismissed the plaintiff’s claims and the plaintiff’s, husband and wife, appealed to the Eleventh Circuit Court of Appeals. This is the decision of the Eleventh Circuit Court of Appeals.
Analysis: making sense of the law based on these facts.
The plaintiff’s booked their travel through a travel agent who was hired by the university or done in conjunction with the university. The travel agent upon booking the rooms received a contract from the hotel which required the travel agent to inform the guests of the rules and contract provisions.
The relationship between a travel agent and the hotel is different from most contracts. First whether or not a contract exists is based on the relationship. If a contract exists it is to pay a commission a specific way to the travel agent and/or be based on a relationship. However, in every situation there is a third party beneficiary to the contract or third parties that are part of the contract, the travelers. Either way the travelers have an interest in the contract. The travel agent usually has requirements as part of the contract to communicate parts or the entire contract to their customers, the travelers.
Sometimes the travel agent is the agent of the travelers. In cases where the travel agent is an agent, then the travel agent must communicate all things known or required by the hotel to the traveler.
Those terms and provisions, which were to be communicated in this case included:
…two provisions in which the travel agent agrees to notify their clients that when they book their reservation through the travel agent, they are subject to certain terms and conditions governing their stay at Atlantis.
A section of the contract indicates that the additional terms and conditions are available on the Atlantis website.
The terms and conditions provide that the guest will be asked to sign a form agreeing to certain terms related to any claims the guest may have as a result of the guest’s stay at the Atlantis Resort. It specifically states that “I agree that any claim I may have against [several named defendants and others], along with their parent, related and affiliated companies at every tier, . . . resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever.”
Because the travel agent is an “agent” of the plaintiff the plaintiff had constructive notice of the terms of the agreement before they arrived in the Bahamas. Constructive notice means you legally had notice of the facts or pleadings at issue even if you did not have actual notice.
When the plaintiff’s arrived at the resort, they signed a registration card titled Acknowledgement, Agreement and Release. This too had a choice of forums clause requiring all suits to be brought in the Bahamas.
The court first reviewed the law surrounding forum selection clauses.
A forum selection clause will be invalidated where “(1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.”
The test on whether a forum selection clause goes too far or overreaches is:
To determine whether there was fraud or overreaching in a non-negotiated forum selection clause, the court looks to “whether the clause was reasonably communicated to the consumer. A useful two-part test of ‘reasonable communicativeness’ takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.”
The court found “The Bahamas is an adequate alternative forum, and the public interest factors weigh in favor of transfer.” The court then looked at the arguments raised by the plaintiffs as to why the forum selection clause should be invalidated. However, the plaintiff’s did not argue any of the four factors necessary to overcome the selection in the clause.
Consequently, the court upheld the District Court’s dismissal of the claim. The plaintiffs were free to go to the Bahamas and file their claim again.
So Now What?
The legal term for deciding the case should be dismissed is forum non conveniens. Latin for the forum is not convenient, meaning the right one based on the contract.
There are two keys here that were critical for the court to rule this way. The first was the forum selected was reasonable for the situation. Normally, you have to choose the forum of the defendant, where the defendant is served or where you may catch the defendant temporarily. (There are classic “stories” of serving defendants in airplanes as they flew over a particular state.)
There must be a reasonable reason for the selection you choose. If you are based in one state and the plaintiff’s come from others, you cannot just choose any state with the best law or the hardest courts to find. You must choose a state where the accident happens if you are fixed, what the accident may happen if you are running trips in other states or the state where you are legally based.
The second is the plaintiff’s had the opportunity, whether or not they took it, to see the forum selection clause, and the other contractual terms, prior to leaving their homes. This might have resolved with a different result if the forum selection clause and other contracts, such as a release, had been handed to the plaintiff’s upon the arrival without any notice they would be required to sign it.
If the client had not signed the agreement at the time of check in, and if they claimed they had not read or received the contract, the plaintiff’s might still have been held to the contract because they took advantage of the benefits the contract offered.
Get your release, with its forum selection clause, in front of the plaintiff as soon as possible. Now days it can be part of the sign up process online or posted on your website or emailed to the guest when their credit card is run.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Complete this Survey to Promote Cycling and Tourism in Washington
Posted: June 11, 2015 Filed under: Adventure Travel, Cycling, Mountain Biking, Washington | Tags: #Tourism, Bike Trail, Cycling, Hiking Trail, Mt Shuksan, Mt. Baker, Survey, Trail, Washington Leave a commentBy participating in this survey you will help a grassroots citizens group realize a pedestrian path along the Mt Baker Highway corridor.
Mt Baker Highway, AKA Washington State Highway 542 stretches 58 miles from sea level in Bellingham, Washington to Artist’s Point at an elevation of 5,140 feet – a scenic overlook above tree line that on clear days treats visitors to sublime views of Mt Baker and Mt Shuksan.
Since 1992 Whatcom County has had plans to build a pedestrian pathway from Bellingham to Artist’s Point and dubbed it the Bay to Baker Trail (B2B). However due to a number of factors little has been accomplished. Right of way has been established in some areas, and in those areas some sections of the trail is under water for much of the year, some travel heavily undercut banks 100 feet above the North Fork Nooksack River, and at least one section acts as the local garbage dump.
Due to its beauty the highway attracts heavy traffic during the winter ski and summer hiking seasons. RVs, families coming up to recreate in SUVs, sports cars, sport motorcycles traveling at triple digits due to virtually no speed enforcement, and road cyclists all share this road. To compound the mix there are residential communities on the highway with limited options for residents to safely walk or ride bikes to community destination. At the local middle school if a child shows up to school with their bike they are sent home due to the hazard that riding on the road represents.
The mild winter that the Pacific Northwest experienced this last year was a shock to the small, tourist dependent communities in the shadow of Mt Baker. Businesses closed and residents watched as skiers, snowboarders and snowmobilers, who bring much needed revenue to the area, disappeared. It was a call to action as residents and business owners realized that perhaps some diversification of recreational opportunities was in order.
Inventorying the material that they had to work with, a group of residents and business owners has banded together in an attempt to motivate government to take action on the Bay to Baker Trail. John Adam, owner of Glacier Ski Shop, believes that pedestrian infrastructure will not only make the area more attractive to visitors, but will also provide residents with a safe option to getting in a vehicle and burning fossil fuels when they need a quart of milk. Paul Engel, who owns Wild and Scenic River Tours, added that, “Hundreds of reports show that when pedestrian pathways are created in a community it brings nothing but good – the population is healthier, vehicular traffic is reduced, property values are stable and local businesses see more traffic. Everyone benefits”
It would be easy to see why businesses would want to increase tourist traffic, and a small group of locals have pointed fingers at them and stating that they just want to “cash in”. When in reality it is more a matter of staying in businesses. And while a very small group of locals oppose the trail effort, the vast majority are for it. One of those is Marty Grabijas, a product developer in the outdoor industry. According to Marty, “What we have here is so special. The access to big wilderness and high alpine environments is incredible, and I can see why some want this to remain their private paradise. However no matter how much we want it we can’t turn the clock back. We do however have an opportunity to engineer the Mt Baker Highway corridor for the future. With a pedestrian pathway we can reduce vehicle congestion, and provide residents and visitors with a safe way to get around on foot or on a bike. My motive for being involved is to create safe places to walk and ride for everyone. The Mt Baker area is visually stunning, and with a safe pathway in the highway corridor a bike is the perfect vehicle for visiting services in one of the several small towns, or connecting to Forest Service roads and exploring the area.”
This citizens group is in the due diligence stage of forming a pedestrian and equestrian advocacy group. Part of that process is showing a want and need for pedestrian pathways by gauging interest of residents, visitors and potential visitors. By participating in their survey you will provide them with the data points they need to attempt to secure funding in Whatcom County’s 2017 / 18 budget to see portions of the Bay to Baker Trail become reality.
Regardless if you have been to the Mt Baker area, your feedback is valuable.
Go to the Survey Here: https://www.surveymonkey.com/s/MTBAKERTA
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Mt. Baker, Survey, Washington, Mt Baker, Mt Shuksan, Trail, Cycling, Tourism, Bike Trail, Hiking Trail,
Summer 2015 Commercial Fatalities
Posted: June 10, 2015 Filed under: Colorado, Montana, Mountaineering, Paddlesports | Tags: 2015, All American Adventures, Calving, Chugach Powder Guides, fatality, Flipped, Geyser Whitewater Expedition, Glacier, Summer, Whitewater Rafting Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of June 1, 2015. Thanks.
Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.
Red is a probable death due to medical issues unrelated to the activity
Dark blue is a death of an employee while working
|
Date |
Activity |
State |
Location |
What |
Age |
Sex |
Location 2 |
Reference |
Company |
|
3/2 |
Backcountry Skiing |
AK |
Chugach Mountains |
Calving Glacier |
28 |
M |
|
Chugach Powder Guides |
|
|
5/23 |
Whitewater Rafting |
CO |
Clear Creek |
Raft Flipped |
47 |
F |
M258.5 |
All American Adventures |
|
|
5/31 |
Whitewater Rafting |
MT |
Gallatin River |
Raft Flipped |
43 |
M |
House Rock |
Geyser Whitewater Expedition |
If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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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, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition,
Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Posted: June 8, 2015 Filed under: Pennsylvania | Tags: agency, Apparent Authority, Dunns River Falls, Hotel, Jamaica, Montego Bay, Principal, Tour Company Leave a commentApparent agency requires actual cloaking by the principal with the cloth of agency on the agent so that third parties believe what they are assuming. The third parties must then reply on the agency to their detriment.
Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901
State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania
Plaintiff: Malleria Cash and Frederika Harrell
Defendant: SIX CONTINENTS HOTELS
Plaintiff Claims: Negligence
Defendant Defenses: No relationship with the true defendant
Holding: For the defendant
Year: 2004
The plaintiffs in this case were in Montego Bay Jamaica. They were staying with the defendant, Holiday Inn Sunspree Hotel. Through the hotel, they arraigned a tour to Dunns River Falls in Ocho Rios, Jamaica with Harmony Tours, Ltd.
Harmony Tours Ltd maintained a desk in the hotel lobby. However, there was no other legal connection between Holiday Tours and the defendant hotel.
The plaintiffs were transported to the falls and dropped off “for a long period of time without any guidance or assistance.” While they were there, the plaintiffs claimed they were trying to climb the waterfall without the assistance of a guide, slipped, fell, and sustained injuries.
They filed this suit in Federal District Court for the Eastern District of Pennsylvania, which the parties agreed was the correct court and that Pennsylvania law, controlled the case.
Analysis: making sense of the law based on these facts.
The court started out going through the requirements as the court to grant a motion for summary judgment filed by the defendant. The issue that must be answered on whether to grant a motion for summary judgment is “whether reasonable minds may differ as to the verdict.” If there are no facts that are in dispute and no reasonable mind can find differently then the motion should be granted.
However, if the facts can be interpreted differently or a reasonable mind might find them differently, then a motion for summary judgment should not be granted.
The basis for the argument of the plaintiffs that the tour company was related was not legal but apparent. The plaintiffs argued the tour company was an apparent agent of the tour company. An apparent agent is defined as:
…one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such an apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.
If the principal “clothes his agent with apparent authority is estopped to deny such authority.” However, the court could find nothing that supported this argument.
In looking at the facts the court identified all the ways the plaintiff has been informed that the defendant hotel was not associated with the tour company.
No one ever represented that the tour company was an agent or affiliated in any special way with the hotel. The ticket the plaintiffs were given after purchasing the tour states:
…take notice that Harmony Tours Ltd. which conducts tours and excursions sold at this desk is an independent contractor. Holiday Inn (Jamaica) Inc. is not responsible for any loss, damage or injury which anyone may suffer arising out of, or in the course of, or in connection with any such tour or excursion.
On top of that, there was no evidence offered by the plaintiff to support its theory.
Even if there was evidence to support facts showing apparent authority, the plaintiffs must then prove that they justifiably relied upon the representation. The plaintiffs would have to argue that they relied upon representations that the tour was the principal of the hotel and that the hotel made a representation that led to the injury.
In this case, that is a reach based on the facts and the court did not buy it.
The case was dismissed.
So Now What?
The critical part is whenever it may appear that you are in a relationship with another business, and you are not; you need to make all customers of both or yours aware of the facts.
Notices posted at the cash register of a retail store that the store is not related to any of the third parties soliciting business in the store.
If you are a hotel, then a sign in the lobby explaining the relationship or near any brochures as well as in this case, printing that notice on the receipt.
Always be upfront with your relationship with your customers.
What do you think? Leave a comment.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
Outdoor Recreation Insurance, Risk Management and Law
Author: Outdoor Recreation Insurance, Risk Management and Law To Purchase Go Here:
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Posted: June 1, 2015 Filed under: New Jersey, Skydiving, Paragliding, Hang gliding | Tags: Fee Shifting Provisions, Freefall, Freefall Adventures, Inc., Indemnification, Prima facie, Release, sky diving, Skydiving Leave a commentThe plaintiff’s claims were dismissed because the plaintiff failed to present enough evidence to support any elements of his claim for his injuries from skydiving.
Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155
State: New Jersey, Superior Court of New Jersey, Appellate Division
Plaintiff: Joseph Dare and Patricia Dare
Defendant: Freefall Adventures, Inc., John Ed-Dowes, Warren Acron, and Eric Keith Johnson, Defendants-Respondents.
Plaintiff Claims:
Defendant Defenses:
Holding:
Year: 2002
The plaintiff was injured when he attempted to avoid colliding with another skydiver. The co-participant had left the airplane first and was lower than the plaintiff; therefore, the co-participant had the right of way.
The plaintiff had been jumping from this site with the defendant for two years, which totaled 137 jumps, including every week the six months before the accident.
Prior to jumping the plaintiff signed a release. The release was five pages long and included an indemnity agreement. The plaintiff also signed a release for Cross Keys Airport, Inc.
The plaintiff sued his co-participant skydiver, as well as the jump facility for his injuries.
The plaintiff denied that it was the cause of his injury; however, he had made arrangements to have his wife photograph him during the jump. In order to allow his wife the opportunity to photograph him, he had to steer through buildings towards the concession trailer where his wife was located.
The defendants filed a motion for summary judgment, which was granted because the plaintiff failed to establish a prima facie case of negligence.
Prima facie, Latin for first look, which legally means the plaintiff, could not establish any facts or sufficient facts to support its claims. A plaintiff must show enough to the court to establish the very basics supporting the elements in its claim.
The defendant had argued that based on the release it should be awarded its attorney fees and costs; however, the trial court did not grant this motion.
Analysis: making sense of the law based on these facts.
The court first looked at the standard of care between participants in a sporting event.
…the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” The Court’s determination was grounded on two policy considerations; the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by voluntary participation in games and sports.
The reckless standard is a greater standard than the negligence standard. That means the acts of the co-participant to be liable for the injuries of another participant must be beyond negligent acts.
The applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a “contact” or “noncontact” sport. The recklessness or intentional conduct standard of care articulated in Crawn was not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities.
Another reason for the application of the reckless standard rather than the negligence standard is the concern that the lower standard would create a flood of lawsuits for any sporting injury.
Recklessness under New Jersey law “entails highly unreasonable conduct, involving “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”
“The standard is objective and may be proven by showing that a defendant ‘proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'”. “Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”
The court also felt that a failure on the part of the plaintiff to provide expert testimony as to what standard of care was for skydiving doomed the plaintiff’s claims.
skydiving requires the training and licensing of participants. According to the record, it involves knowledge and conduct peculiar to the activity, including an understanding of wind direction and velocity, proper diver spacing, control of descent, and avoidance of ground hazards.
The appellate court upheld the trial court’s dismissal of the plaintiff’s claims against the other co-participant skydiver. The court then looked at the plaintiffs’ claims against the defendant sky diving operation. The court found that the recklessness standard did not apply to the facility.
Consequently, the question here was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, plaintiff’s risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which Freefall operated its facility. Plaintiffs failed to demonstrate such a material increase in risk.
For the plaintiff to make a claim against the defendant facility, he would have to prove that the facility materially increased the risks over that of a normal sky-diving facility. Again, the plaintiff failed to prove that or provide enough evidence to proceed with his claims.
There was absolutely no evidence presented that Freefall failed to supervise the divers on the day of plaintiff’s accident. The record established that the loading of the aircraft, its operation, and the jumps themselves, were uneventful. Nothing suggests that Freefall personnel knew or should have known that plaintiff, or any other diver, was in peril because of the conduct of other participants. Moreover, Freefall had no way of controlling plaintiff’s, Johnson’s, or any other jumper’s maneuvering of their parachute canopies during the descent. Both plaintiff and Johnson were trained and licensed sky-divers. It is undisputed that once airborne, it was their duty alone to proceed with due care.
The plaintiff also claimed the landing zone of the defendant facility was not in accordance with regulatory minimums; however, he never stated what those minimums were or how the defendant’s facility failed to meet those minimums.
The appellate court upheld the dismissal of the plaintiff’s claims.
We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard applied to Freefall, and, based on the evidentiary material submitted, summary judgment was properly granted to all defendants.
The court then looked at the indemnification provisions in the release which the court called “fee shifting provisions.”
The court looked at how other states had handled fee-shifting provisions in sky-diving cases. New Jersey had not looked at the issue in skydiving but had examined the issue in other cases, which had found the provisions were void.
The court reiterated that the plaintiff’s claim had been dismissed based on the plaintiff’s failure to present a prima facie case, not based on the release. The fee-shifting provisions were part of the release. Under New Jersey law, “that sound judicial administration is best advanced if litigants bear their own counsel fees.” Even when fee-shifting provisions are allowed, they will be strictly construed.
Essentially, the fee-shifting clause in Freefall’s release/waiver may be construed as an indemnification agreement, whereby plaintiff has agreed to pay counsel fees incurred by Freefall in defending plaintiffs’ suit, even if the cause of plaintiff’s injuries was Freefall’s own negligence. Such agreements, of course, must also be strictly construed against the indemnitee.
Reviewing construction law and finding no recreational case law where a fee-shifting provision had been upheld the court determined the provisions were void as a violation of public policy.
Against this backdrop, we conclude that the fee-shifting provision in Freefall’s agreement is void as against public policy. It obviously runs counter to our strong policy disfavoring fee shifting of attorneys’ fees.
The deterrent effect of enforcing such a fee-shifting agreement offends our strong policy favoring an injured party’s right to seek compensation when it is alleged that the injury was caused by the tortious conduct of another.
The court also justified its decision by saying that because skydiving was regulated boy by the FAA and the New Jersey Department of Transportation it would be wrong to allow recovery of attorney fees by the defendant when the plaintiff argued the regulations had been violated, Even though the plaintiff’s arguments had no proof.
The defendant also attempted to argue the plaintiff’s complaint was frivolous which under a New Jersey statute would have allowed the defendant to recover their attorney fees defending a frivolous claim. However, the court found there were enough bases in the plaintiff’s complaint that it did not meet the frivolous claim threshold.
So Now What?
As stated in several other cases, indemnification clauses, even when well written, as you might assume from a five-page release, rarely result in recovery of attorney fees.
This also shows that the length of the release is not a deterrent, whether the release is effective in some courts. Some people balk at a release over one page. However, when stopping a multi-million dollar claim a few pieces of paper are not a big issue.
Have your release written so that it protects you and all possible co-defendants and maybe includes a well-written indemnification clause.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
Connect
If you like this let your friends know or post it on FB, Twitter, or LinkedIn
Facebook Page: Outdoor Recreation & Adventure Travel Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
@2015-2023 Summit Magic Publishing, LLC
G-YQ06K3L262
#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, Freefall Adventures, Inc., Skydiving, Sky Diving, Freefall, Fee Shifting Provisions, Indemnification, Prima facie, Release,
Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155
Posted: May 29, 2015 Filed under: Legal Case, New Jersey, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Fee Shifting Provisions, Freegall Adventures, Release, sky diving, Skydiving, Waiver Leave a commentTo Read an Analysis of this decision see
New Jersey does not support fee-shifting provisions (indemnification clauses) in releases in a skydiving case.
Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155
Joseph Dare and Patricia Dare, his Wife, Plaintiffs-Appellants, v. Freefall Adventures, Inc., John Ed-Dowes, Warren Acron and Eric Keith Johnson, Defendants-Respondents. Joseph Dare and Patricia Dare, his Wife, Plaintiffs-Respondents, v. Freefall Adventures, Inc., and John Eddowes, Defendants-Appellants, Warren Acorn and eric Keith Johnson, Defendants.
A-2629-00T1, A-2789-00T1
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
349 N.J. Super. 205; 793 A.2d 125; 2002 N.J. Super. LEXIS 155
February 4, 2002, Argued
March 21, 2002, Decided
COUNSEL: Stephen Cristal, argued the cause for Joseph and Patricia Dare, appellants in A-2629-00T1 and respondents in A-2789-00T1 (Mark J. Molz, attorney; Mr. Cristal, on the brief).
Kelly Johnson, argued the cause for Freefall Adventures, Inc. and John Eddowes, respondents in A-2629-00T1 and appellants in A-2789-00T1 (Ms. Johnson, on the brief).
Vincent J. Pancari, argued the cause for respondent Eric K. Johnson in A-2629-00T1 (Kavesh, Pancari, Tedesco & Pancari, attorneys; Robert Pancari, on the brief).
JUDGES: Before Judges HAVEY, COBURN and WEISSBARD. The opinion of the court was delivered by HAVEY, P.J.A.D.
OPINION BY: HAVEY
OPINION
[**127] [*209] The opinion of the court was delivered by
[**128] HAVEY, P.J.A.D.
Plaintiff Joseph Dare was injured in a skydiving accident when he attempted to avoid colliding with defendant Eric Keith Johnson, a co-participant in the jump. 1 Prior to the jump, the plaintiff signed a release/waiver agreement with the operator of the skydiving facility, defendant Freefall Adventures, Inc. (Freefall), under [*210] hich the plaintiff released [***2] Freefall from any claims for injuries arising from Freefall’s negligence. The agreement further provided that, in the event plaintiff instituted a suit against Freefall, the plaintiff agreed to pay Freefall’s counsel fees incurred in defending the suit. The trial court granted summary judgment in favor of all defendants dismissing the plaintiffs’ personal injury action. The court concluded that plaintiffs failed to establish a prima facie case of negligence. 2 It also dismissed Freefall’s counterclaim in which it demanded counsel fees in accordance with the release/waiver agreement, as well as the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8.
1 Two appeals, A-2629-00T1, filed by plaintiffs, and A-2789-00T1, filed by defendants Freefall and John Eddowes, have been consolidated for purpose of this opinion.
2 Plaintiff Patricia Dare, Joseph’s wife, filed a per quod claim.
We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard [***3] applied to Freefall, and, based on the evidentiary material submitted, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995), summary judgment was properly granted to all defendants. We further hold that the fee-shifting provision under the release/waiver agreement signed by plaintiff is void as against public policy, and that Freefall is not entitled to counsel fees under the Frivolous Claims Statute. We therefore affirm dismissal of Freefall’s counterclaim.
Considering the evidentiary material in a light most favorable to plaintiffs, id. at 523, 666 A.2d 146, these are the facts. On July 9, 1995, plaintiff Joseph Dare, a licensed and experienced skydiver, having jumped on 137 prior occasions, utilized the skydiving facilities operated by Freefall 3 in Williamstown, Gloucester County. Plaintiff had been using the Freefall facility for over two years and nearly every week for the six months preceding his accident.
3 Freefall refers also to defendant John Eddowes, part owner of Freefall, and defendant Warren Acorn who, according to plaintiffs’ complaint, was a Freefall employee.
[***4] Prior to his jump on July 9, 1995, plaintiff executed a five-page “Waiver of Rights, Release and Indemnity Agreement” which [*211] defined the risks of injury or death associated with skydiving.
Page 3 of the waiver provided:
1. I hereby RELEASE AND DISCHARGE . . . FREEFALL . . . from any and all liability, claims, demands or causes of action that I may hereinafter have for injuries and damages arising out of my participation in parachuting activities.
2. I further agree that I WILL NOT SUE OR MAKE CLAIM against [Freefall] for damages or other losses sustained as a result of my participation in parachuting activities. . . . I also agree to INDEMNIFY AND HOLD [Freefall] HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in connection with any action brought as a result of my participation in parachuting activities. . . .
Page 4 provided:
2. EXEMPTION FROM LIABILITY. [Plaintiff] . . . releases [Freefall] [**129] . . . from any and all liability . . . arising out of any . . . injury to [plaintiff] . . . while participating in any of the activities contemplated by this AGREEMENT . . . whether such . . . injury results [***5] from the negligence of [Freefall] . . . .
3. COVENANT NOT TO SUE. [Plaintiff] agrees never to institute any suit or action at law or otherwise against [Freefall], its owners, officers, agents, employees, servants, or lessors . . . by reason of injury to [plaintiff] . . . arising from the activities contemplated by this AGREEMENT. . . .
[Emphasis added.]
A second “Agreement and Release,” signed by plaintiff, in favor of Cross Keys Airport, Inc. and Freefall stated:
5. REIMBURSEMENT FOR LEGAL FEES AND EXPENSES. The [plaintiff] expressly agrees and covenants to fully reimburse [Freefall] for all legal costs and reasonable counsel fees . . . paid by [Freefall], for the . . . defense of any and all actions or cause of action or claim or demand for damages whatsoever, which may hereafter arise or be instituted or recovered against [Freefall], by the [plaintiff] . . . regardless of any negligence on the part of [Freefall] . . . .
[Emphasis added.]
On the day of the jump, plaintiff was accompanied by defendant Eric Johnson, another licensed and experienced skydiver, in the airplane transporting the divers to the drop [***6] zone. Johnson jumped first, followed by plaintiff. Plaintiff claims that he was injured because he was required to make an emergency turn during his descent in order to avoid colliding with Johnson. In his certification, plaintiff states:
Defendant Johnson [was] skydiving in a reckless manner; he was far outside the [landing] pattern, he was too low to the ground over the airplane runway. It was reckless of him to be that close to the runway at that altitude. It is one of the [*212] most basic rules of skydiving that you cannot land on or near a runway. Defendant Johnson was essentially being a “hot-dog,” which is inappropriate.
Because Defendant Johnson was so far outside the [landing] pattern, he had to recklessly cut across wind back toward the drop zone, and in doing so was heading right into [plaintiff’s] path of travel. Had [plaintiff] not maneuvered, [they] would have collided. In trying to avoid the collision, [plaintiff] maneuvered quickly, which caused [plaintiff] to fall down to the ground.
In his deposition plaintiff stated that during his descent the closest he came to Johnson was between 150 and 175 feet. He further acknowledged that since Johnson jumped first, [***7] Johnson had the right of way. 4 Plaintiff also admitted that prior to the jump he had arranged with his wife to have her photograph him during his jump. According to defendants, this plan required plaintiff to steer his flight toward a concession trailer operated by his wife, which was surrounded by buildings and other dangerous obstacles. Defendants argue that plaintiff’s sudden diversion from this path was necessary to avoid striking the buildings near his wife’s trailer.
4 [HN1] The United States Parachute Association, Skydiver’s Information Manual § 4.19F (1995), provides:
Right-of-way: The lower person has the right of way, both in freefall and under canopy. The higher person should always yield to anyone below. It is important to avoid collisions at all costs.
[**130] [HN2] The New Jersey Department of Transportation regulates parachuting centers in order “to foster, control, supervise and regulate sport parachuting. . . .” N.J.A.C. 16:58-1.2. The pertinent rules require participants to meet various training and licensing [***8] standards before parachuting, and define the manner and place where a jumper should exit the aircraft. However, the regulations do not impose any express duties upon the operator of the skydiving facility or define the standard controlling a skydiver’s conduct during his descent. See N.J.A.C. 16:58-1.1 to -3.1. Also, the Federal Aviation Administration (FAA) has appointed the United States Parachuting Association (USPA) to oversee the sport of parachuting. The USPA promulgates rules which: (1) require licensing; (2) prohibit jumps into hazardous areas and the use of [*213] alcoholic beverages and drugs; and (3) establish standards regarding canopy control, maneuvering and landing. See Skydiver’s Information Manual, supra, at § 4.06C(1); § 4.19; § 4.20D and § 4.23. Otherwise, skydiving is a self-regulated industry.
I
In granting summary judgment in favor of Johnson, the trial court concluded that even under the negligence, rather than the recklessness, standard, see Crawn v. Campo, 136 N.J. 494, 643 A.2d 600 (1994), plaintiffs had failed to demonstrate a prima facie case. The court stated:
The facts basically are that this defendant, Johnson, exited the [***9] airplane prior to [plaintiff] exiting the airplane. At the time . . . just before the accident, the plaintiff indicates that the closest he got to Mr. Johnson was between 150 and 175 feet which is half a football field away. Everyone concedes that the person lowest–closest to the ground has the right-of-way. Clearly, [plaintiff] was altering his drop pattern to some extent. His observation was that he thought Johnson was closer to the runway than he should have been, but that does not appear to me to be any proximate cause at all.
I frankly don’t see how reasonable men could differ on this even giving all of the necessary inferences to the plaintiff for this particular motion. I think I am compelled to grant the summary judgment in favor of this defendant. Given the fact that there is no expert to give us any guidance with respect to any other standard of care, even applying a basic standard of care in a negligence matter, I just can’t see how [Johnson] could have contributed to this accident at all.
We are satisfied that plaintiffs had the burden of proving that Johnson’s conduct was reckless, rather than negligent. In Crawn, a case involving an injury during an informal [***10] softball game, the Court held that [HN3] “the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” Id. at 497, 643 A.2d 600. The Court’s determination was grounded on two policy considerations; the promotion of vigorous participation in athletic activities, and the avoidance of a flood of litigation generated by voluntary participation in games and sports. Id. at 501, 643 A.2d 600. The Court added:
[HN4] Our conclusion that a recklessness standard is the appropriate one to apply in the sports context is founded on more than a concern for a court’s ability to discern [*214] adequately what constitutes reasonable conduct under the highly varied circumstances of informal sports activity. The heightened standard will more likely result in affixing liability for conduct that is clearly unreasonable and [**131] unacceptable from the perspective of those engaged in the sport yet leaving free from the supervision of the law the risk-laden conduct that is inherent in sports and more often than not assumed to be “part of the game.”
[Id. at 508, 643 A.2d 600 (emphasis added).]
Since Crawn, the recklessness [***11] standard of care has been applied to other informal sports activities. See, e.g., Obert v. Baratta, 321 N.J. Super. 356, 729 A.2d 50 (App.Div.1999) (applying recklessness standard when softball player sued teammate for injuries sustained as a result of teammate’s pursuit of fly ball during informal intra-office game); Calhanas v. South Amboy Roller Rink, 292 N.J. Super. 513, 679 A.2d 185 (App.Div.1996) (applying recklessness standard where roller skater suffered broken leg from collision with another skater). In Schick v. Ferolito, 167 N.J. 7, 767 A.2d 962 (2001), where a golfer was struck by an errant tee-shot, the Court expanded the Crawn holding to “all recreational sports,” whether perceived as “contact” or “noncontact” activities. Id. at 18, 767 A.2d 962. The Court observed that:
The applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a “contact” or “noncontact” sport. The recklessness or intentional conduct standard of care articulated in Crawn was [***12] not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities.
[Id. at 18-19, 767 A.2d 962]
[HN5] Skydiving is a popular, “risk-laden” recreational sport. Crawn, supra, 136 N.J. at 508, 643 A.2d 600. Therefore, there is no basis in fact or law to conclude that the recklessness standard under Crawn is inapplicable. Moreover, Crawn’s policy underpinnings clearly apply. As in recreational softball games or golf, it would hardly promote “vigorous participation” in the activity if skydivers were exposed to lawsuits when their mere negligence during descent caused an injury to a co-participant. Further, application of the simple negligence standard may invite a floodgate of [*215] litigation generated by voluntary participation in the activity. Id.136 N.J. at 501, 643 A.2d 600.
Even considering plaintiffs’ proofs most indulgently, we conclude that plaintiffs fail to meet the recklessness standard. [HN6] Reckless behavior entails highly unreasonable conduct, involving “an extreme departure from ordinary care, in a situation where a high degree of danger [***13] is apparent.” Schick, supra, 167 N.J. at 19, 767 A.2d 962 (citing Prosser & Keeton on Torts § 34, at 214 (5th Ed.1984)). “The standard is objective and may be proven by showing that a defendant ‘proceeded in disregard of a high and excessive degree of danger either known to him [or her] or apparent to a reasonable person in his [or her] position.'” Ibid. “Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.” Schick, supra, 167 N.J. at 20, 767 A.2d 962.
It is undisputed that Johnson, who jumped first, had the right-of-way during the descent and, according to skydiving standards, plaintiff had a duty to yield if, as plaintiff claims, Johnson altered his course. In addition, plaintiff was never closer than 150 to 175 feet to Johnson during the descent. Plaintiffs fail to demonstrate how, considering such a distance, Johnson “‘proceeded in disregard of a [**132] high and excessive degree of danger'” to plaintiff. Id. 167 N.J. at 19, 767 A.2d 962.
Moreover, unlike the applicable standard of care governing an informal softball game, where expert testimony is not required, [***14] Crawn, supra, 136 N.J. at 508-09, 643 A.2d 600, skydiving requires the training and licensing of participants. According to the record, it involves knowledge and conduct peculiar to the activity, including an understanding of wind direction and velocity, proper diver spacing, control of descent, and avoidance of ground hazards. The trial court correctly determined that because of the complexities and variables involved in applying pertinent skydiving guidelines, expert testimony was necessary to establish what standard of care applied to Johnson, and how he deviated from that [*216] standard. See Butler v. Acme Markets, Inc., 89 N.J. 270, 283, 445 A.2d 1141 (1982) [HN7] (expert testimony is necessary when the subject matter “is so esoteric that jurors . . . cannot form a valid judgment as to whether the conduct of the party was reasonable”); see also Giantonnio v. Taccard, 291 N.J. Super. 31, 43-44, 676 A.2d 1110 (App.Div.1996) (holding that expert testimony was required to establish the standard of care in the safe conduct of a funeral procession). Plaintiffs presented no such expert testimony, despite the opportunity to do so. In the circumstances, summary judgment was properly granted in [***15] favor of Johnson.
II
Plaintiffs next argue that the trial court erred in granting summary judgment to Freefall, contending that fact issues exist as to whether Freefall maintained and operated a reasonably safe skydiving facility. Freefall contends that Crawn’s recklessness standard applies.
Plaintiffs submitted certifications stating that Freefall: (1) exercised no control over the “reckless” behavior of skydivers using the facility; (2) permitted the consumption of drugs and alcohol by skydivers; (3) did not conform to applicable skydiving standards of care; and (4) established a drop zone that was not in conformance with industry standards.
We first reject Freefall’s argument that the recklessness standard applies. The Crawn/Schick recklessness standard was imposed in the context of claims arising out of injuries caused by a co-participant in the sports activity. Here, the question is what duty of care is owed by the operator of a facility where the injury occurred. Since Crawn, we have addressed this distinction.
For example, in Underwood v. Atlantic City Racing Ass’n, 295 N.J. Super. 335, 685 A.2d 40 (App.Div.1996), certif. denied, [***16] 149 N.J. 140, 693 A.2d 110 (1997), we held that the Crawn standard did not apply where a jockey was injured during a race because plaintiff’s theory was that the accident occurred as a result of the [*217] negligent installation of lighting by the racetrack, a condition that was not “inherent in sports and . . . not assumed to be ‘part of the game.'” Id. at 343, 685 A.2d 40 (quoting Crawn, supra, 136 N.J. at 508, 643 A.2d 600).
Similarly, in Rosania v. Carmona, 308 N.J. Super. 365, 367, 706 A.2d 191 (App.Div.), certif. denied, 154 N.J. 609, 713 A.2d 500 (1998), we concluded that the recklessness standard did not apply where a karate (dojo) student was injured by an instructor, holding that:
in this commercial setting, the jury should have been charged that defendants owed a duty to patrons of the dojo not to increase the risks inherent in the sport of karate under the rules a reasonable student would have expected to be in effect at that dojo . . . . the jury [**133] should have been charged that the correct scope of duty owed by the expert instructor and the academy was one of due care . . . .
[Id. at 368, 706 A.2d 191 (emphasis added).]
Thus, the [***17] question for the jury was whether the risks inherent in the karate match between plaintiff and his instructor “were materially increased beyond those reasonably anticipated,” applying “the ordinary duty owed to business invitees. . . .” Id. at 374, 706 A.2d 191.
Finally, in Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 342 N.J. Super. 527, 777 A.2d 380 (App.Div.), certif. denied, 170 N.J. 387, 788 A.2d 722 (2001), we held that the owner of a sports facility owed a “limited” duty to protect spectators from flying hockey pucks by providing secure seats for those spectators who request them, and also to screen any seats “that pose an unduly high risk of injury. . . .” Id. 342 N.J. Super. at 534, 777 A.2d 380. We concluded that imposition of this limited duty was “indirectly” supported by Crawn’s observation that [HN8] “‘the risk of injury is a common and inherent aspect of informal sports activity'” and “‘participants . . . assume the ordinary risks of those activities.'” Id. at 535, 777 A.2d 380 (quoting Crawn, supra, 136 N.J. at 500-01, 643 A.2d 600). We added:
[HN9] Although the operator of a sports facility is subject to a standard of care based on negligence rather than the recklessness [***18] standard applicable to participants in recreational sporting activities, McLaughlin [v. Rova Farms, Inc.], supra, 56 N.J. [288] at 303-04, 266 A.2d 284, it is appropriate in defining a sports facility [*218] operator’s duty of care to consider that any spectators choose to “assume the ordinary risks” of being struck by a flying ball or puck in order to obtain an unobstructed view of the playing field and that these are “common and inherent” risks of attending a baseball or hockey game. Crawn, supra, 136 N.J. at 500-01, 643 A.2d 600.
[Schneider, supra, 342 N.J. Super. at 535, 777 A.2d 380 (emphasis added).]
Consequently, the question here was whether, under the ordinary duty owed to business invitees, considering the nature of the risks associated with skydiving and the foreseeability of injury, Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515, 688 A.2d 1018 (1997), plaintiff’s risk of injury was materially increased beyond those reasonably anticipated by skydiving participants as a result of the manner by which Freefall operated its facility. Rosania, supra, 308 N.J. Super. at 374, 706 A.2d 191. Plaintiffs failed to demonstrate such a material increase [***19] in risk.
There was absolutely no evidence presented that Freefall failed to supervise the divers on the day of plaintiff’s accident. The record established that the loading of the aircraft, its operation, and the jumps themselves, were uneventful. Nothing suggests that Freefall personnel knew or should have known that plaintiff, or any other diver, was in peril because of the conduct of other participants. Moreover, Freefall had no way of controlling plaintiff’s, Johnson’s, or any other jumper’s maneuvering of their parachute canopies during the descent. Both plaintiff and Johnson were trained and licensed skydivers. It is undisputed that [HN10] once airborne, it was their duty alone to proceed with due care.
Further, no competent proof of drug abuse was presented; plaintiff conceded that he knew of no incident of drug use on the day in question. Also, John Eddowes, owner of Freefall, testified that his facility adhered to the industry’s “eight hour rule,” prohibiting consumption of alcohol within eight hours of a jump. Johnson [**134] testified that he complied with this rule, and there was no other evidence presented that Freefall personnel knew or should have known that Johnson or other jumpers [***20] had not complied with it. Although plaintiff stated that he smelled alcohol while on the aircraft, he was unable to say from whom the odor emanated. [*219] Moreover, there was no showing of how, even if alcohol had been consumed, that fact contributed to plaintiff’s accident. Tellingly, plaintiff opted to jump notwithstanding his alleged awareness of alcohol consumption.
Finally, plaintiffs claimed that Freefall’s drop zone was not in accordance with regulatory minimum size requirements. But no evidence, expert or otherwise, was presented to establish: (1) how, and to what degree, Freefall’s drop zone was not in compliance with industry standards; and (2) if the drop zone was substandard, how this deficiency was a proximate cause of plaintiff’s injury. Indeed, it is undisputed that Freefall’s facility was licensed and inspected by the Department of Transportation, and the facility was never cited for the size or condition of the drop zone. We conclude that summary judgment was properly granted in Freefall’s favor.
III
In its separate appeal, Freefall argues that the trial court erred in dismissing its counterclaim demanding counsel fees due it under the release/waiver signed by plaintiff. [***21] Alternatively, Freefall claims that counsel fees should have been awarded to it pursuant to the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and the court rule governing frivolous actions. R. 1:4-8.
As noted, prior to his jump plaintiff signed an agreement releasing Freefall from any liability in the event plaintiff is injured, even if the injury was a result of Freefall’s own negligence. Moreover, the agreement had a fee-shifting provision, requiring plaintiff to pay Freefall’s counsel fees in the event plaintiff instituted suit seeking damages. The trial court found it unnecessary to address the enforceability of the release/waiver agreement, since, as it observed during Freefall’s motion for reconsideration, the sole “issue was whether or not [plaintiffs’] claim was frivolous.” In concluding that Freefall failed to make a viable claim under the Frivolous Claims Statute, the court underscored [*220] New Jersey’s public policy “to afford litigants an opportunity to have access to the courts.”
[HN11] In New Jersey, disclaimers or limitations of liability are not favored. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 373, 161 A.2d 69 (1960). [***22] Nevertheless, courts in other jurisdictions have upheld exculpatory contracts signed by participants in skydiving or parachuting. See e.g., Allan v. Snow Summit, Inc., 51 Cal.App.4th 1358, 59 Cal. Rptr.2d 813 (Cal.App.1996); Paralift, Inc. v. Superior Court, 23 Cal.App.4th 748, 29 Cal. Rptr.2d 177 (Cal.App.1993); Hulsey v. Elsinore Parachute Ctr., 168 Cal. App. 3d 333, 214 Cal. Rptr. 194 (Cal.App.1985); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989); Jones v. Dressel, 623 P.2d 370 (Colo.1981). Other cases hold that such releases are void as to a claim of gross negligence or willful or wanton conduct. See e.g., In re Pacific Adventures, Inc., 27 F. Supp. 2d 1223 (D.Haw.1998); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730 (D.Haw.1993); Falkner v. Hinckley Parachute Ctr., Inc., 178 Ill. App. 3d 597, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989).
Although New Jersey courts have not addressed release/waiver agreements in the context of skydiving, we have considered the effect of such agreements in other sporting activities. For example, we have observed [***23] that a release from liability for injuries arising from ski injuries in an application to become a member of a condominium [**135] association, may be void as against public policy because of its adhesive nature, and further because the release cannot relieve the owner of the ski resort from its statutory duty of care under N.J.S.A. 5:13-3a. Brough v. Hidden Valley, Inc., 312 N.J. Super. 139, 155, 711 A.2d 382 (App.Div.1998). But see McBride v. Minstar Inc., 283 N.J. Super. 471, 486, 662 A.2d 592 (LawDiv.1994), aff’d 283 N.J. Super. 422, 662 A.2d 567 (App.Div.) , certif. denied, 143 N.J. 319, 670 A.2d 1061 (1995) (upholding an exculpatory clause as part of an agreement to purchase ski equipment, because, in part, the release does not undermine a statutory duty of care or contravene public policy).
[*221] In McCarthy v. Nat. Ass’n for Stock Car Auto Racing, Inc., 87 N.J. Super. 442, 449-50, 209 A.2d 668 (LawDiv.1965), aff’d, 90 N.J. Super. 574, 218 A.2d 871 (App.Div.) , certif. granted, 47 N.J. 421, 221 A.2d 221 (1966), aff’d, 48 N.J. 539, 226 A.2d 713 (1967), the Law Division determined that [***24] a release in NASCAR’s favor was void because NASCAR’s obligation to inspect plaintiff’s vehicle was a “positive duty” imposed by New Jersey’s statutory law. See also Chemical Bank of New Jersey Nat. Ass’n v. Bailey, 296 N.J. Super. 515, 527, 687 A.2d 316 (App.Div.), certif. denied, 150 N.J. 28, 695 A.2d 671 (1997) (holding that while an exculpatory clause in a private contract may limit liability, courts will not enforce such a clause “if the party benefitting from exculpation is subject to a positive duty imposed by law or . . . if exculpation of the party would adversely affect the public interest”).
In this case, we need not decide whether, under the agreement signed by plaintiff, he waived his right to sue Freefall, since we have affirmed the summary judgment dismissing plaintiffs’ suit on substantive grounds. However, we must determine whether the contractual fee-shifting provision under the agreement is enforceable.
[HN12] “New Jersey has a strong policy disfavoring shifting of attorneys’ fees.” North Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569, 730 A.2d 843 (1999). We adhere to the “American rule” that “‘the prevailing [***25] litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.'” Rendine v. Pantzer, 141 N.J. 292, 322, 661 A.2d 1202 (1995) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L. Ed. 2d 141, 147 (1975)). Thus, our Supreme Court’s basic approach has been “‘that sound judicial administration is best advanced if litigants bear their own counsel fees.'” Satellite Gateway Communications, Inc. v. Musi Dining Car Co., Inc., 110 N.J. 280, 285, 540 A.2d 1267 (1988) (quoting State of New Jersey, Dep’t of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 504, 468 A.2d 150 (1983)).
[*222] Nevertheless, New Jersey law permits parties to a contract to shift liability for attorneys’ fees. See Cohen v. Fair Lawn Dairies, Inc., 86 N.J. Super. 206, 214-16, 206 A.2d 585 (App.Div.), certif. granted, 44 N.J. 412, 209 A.2d 145 aff’d, 44 N.J. 450, 210 A.2d 73 (1965). “However, even where attorney-fee shifting is controlled by contractual provisions, courts will strictly construe that provision in light of the general policy disfavoring the award of attorneys’ [***26] fees.” North Bergen Rex Transp., Inc., supra, 158 N.J. at 570, 730 A.2d 843. Notably, New Jersey cases which uphold enforcement of such fee-shifting provisions generally involve breach of agreements entered into in the commercial setting, such as leases, sale of goods, construction contracts and promissory notes. See Hatch v. T & L Assocs., 319 N.J. Super. 644, 648, 726 A.2d 308 (App.Div.1999) (promissory note); [**136] McGuire v. City of Jersey City, 125 N.J. 310, 327, 593 A.2d 309 (1991) (lease); Glenfed Fin. Corp. v. Penick Corp., 276 N.J. Super. 163, 182-83, 647 A.2d 852 (App.Div.1994) (loan agreement), certif. denied, 139 N.J. 442, 655 A.2d 444 (1995); Specialized Med. Sys., Inc. v. Lemmerling, 252 N.J. Super. 180, 185-86, 599 A.2d 578 (App.Div.1991) (sale of goods), certif. granted, 127 N.J. 565, 606 A.2d 375, app. dism. 142 N.J. 443, 663 A.2d 1352 (1992). Freefall has cited no New Jersey case holding that a fee-shifting provision as part of a waiver or release given in a sports activity is enforceable.
Essentially, the fee-shifting clause in Freefall’s release/waiver may be construed as an indemnification agreement, [***27] whereby plaintiff has agreed to pay counsel fees incurred by Freefall in defending plaintiffs’ suit, even if the cause of plaintiff’s injuries was Freefall’s own negligence. Such agreements, of course, must also be strictly construed against the indemnitee. Ramos v. Browning Ferris Indus. of So. Jersey, Inc., 103 N.J. 177, 191, 510 A.2d 1152 (1986). Nevertheless, we have held “that [HN13] ‘there is no essential public policy impediment to an indemnitor undertaking to indemnify the indemnitee in respect of the indemnitee’s own negligence.'” Leitao v. Damon G. Douglas Co., 301 N.J. Super. 187, 192, 693 A.2d 1209 (App.Div.), certif. denied, 151 N.J. 466, [*223] 700 A.2d 879 (1997) (quoting Doloughty v. Blanchard Constr. Co., 139 N.J. Super. 110, 116, 352 A.2d 613 (Law Div. 1976)). However, this public policy statement has generally been applied in the context of indemnification clauses under construction contracts. See Leitao, supra, 301 N.J. Super. at 192-93, 693 A.2d 1209, and cases cited therein. That principle is derived “from the judicial recognition that ordinarily the financial responsibility for the risk of injury during the course of a construction [***28] project is shifted in any event by the primary parties to their insurance carriers. . . .” Doloughty, supra, 139 N.J. Super. at 116, 352 A.2d 613.
Against this backdrop, we conclude that the fee-shifting provision in Freefall’s agreement is void as against public policy. It obviously runs counter to our strong policy disfavoring fee shifting of attorneys’ fees. Clearly, it discourages the average recreational participant from seeking the refuge of our courts for fear that he may face the retribution of a substantial legal fee if he does so. [HN14] It is one thing to hold a party to a fee-shifting provision in a contract negotiated in a commercial setting; it is another when an amateur sports participant is asked to agree to such a provision shortly before he engages in the activity. The deterrent effect of enforcing such a fee-shifting agreement offends our strong policy favoring an injured party’s right to seek compensation when it is alleged that the injury was caused by the tortious conduct of another.
Also significant is the fact that both the FAA and New Jersey’s Department of Transportation have recognized that skydiving is a high-risk sport. By regulating the activity, the agencies have [***29] made it a matter of public interest that skydiving facilities be licensed and that agency oversight is necessary to assure that the facilities be operated in a safe and compliant manner. To allow an operator to recoup its counsel fees when, as here, the injured party claims that the operator deviated from those regulations, obviously runs counter to that sound policy. See McCarthy, supra, 87 N.J. Super. at 448-49, 209 A.2d 668 [HN15] (although an immunity [*224] clause may be enforceable if it does not contravene public policy, “[t]he situation becomes entirely different in the eyes of the law when the legislation in question is, as here, [**137] legislation obviously intended for the protection of human life. In such event, public policy does not permit an individual to waive the protection which the statute is designed to afford him”).
IV
We reject Freefall’s argument that the trial court erred in denying its application for counsel fees under the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8. We cannot say that plaintiffs’ complaint was filed in bad faith or that plaintiffs knew or should have known that their complaint was without reasonable basis in law or [***30] equity, and could not be supported by a good faith argument under existing law. N.J.S.A. 2A:15-59.1b(1) and 59.1b(2). See also McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 548-49, 626 A.2d 425 (1993). In our view, the validity of the release/waiver agreement signed by plaintiff was at least debatable. See McCarthy, supra, 87 N.J. Super. at 446-47, 209 A.2d 668. Furthermore, because the negligence, rather than recklessness, standard applied to Freefall, plaintiffs’ theory based on purported violations of industry standards, though not factually supported, cannot be deemed frivolous. Finally, although we agree with the trial court that ultimately expert testimony was necessary to establish a case against Freefall, that question was at least open to debate when plaintiffs filed their complaint. See Crawn, supra, 136 N.J. at 508-10, 643 A.2d 600 (holding that plaintiff was not required to produce expert testimony to establish tortious conduct of a co-participant in an informal softball game).
Affirmed.
G-YQ06K3L262
http://www.recreation-law.com
Colorado has a new Epinephrine law allowing most outdoor programs the ability to stock and administer epinephrine without criminal liability
Posted: May 27, 2015 Filed under: Colorado, First Aid, Medical | Tags: Colorado, Epinephrine, Good Samaritan, Immunity Leave a comment
That means recreation camps, colleges and universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment, ski areas, and sports arenas can carry epinephrine.
NOTE: The governor signed this measure on 5/14/2015.
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HOUSE BILL 15-1232
BY REPRESENTATIVE(S) Ginal and Landgraf, Buckner, Esgar, Fields, Mitsch Bush, Pettersen, Primavera, Rosenthal, Ryden, Salazar, Tyler, Vigil, Williams, Young, Hullinghorst; also SENATOR(S) Todd and Martinez Humenik, Kefalas, Kerr, Newell.
CONCERNING THE EMERGENCY USE OF EPINEPHRINE AUTO–INJECTORS BY AUTHORIZED ENTITIES, AND, IN CONNECTION THEREWITH, MAKING AN APPROPRIATION.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, add article 47 to title 25 as follows:
ARTICLE 47 Use of Epinephrine Injectors by Authorized Entities
25-47-101. Definitions. AS USED IN THIS ARTICLE:
(1) “ADMINISTER“ MEANS TO DIRECTLY APPLY AN EPINEPHRINE AUTO–INJECTOR TO THE BODY OF AN INDIVIDUAL.
(2) “AUTHORIZED ENTITY“ MEANS AN ENTITY OR ORGANIZATION, OTHER THAN A SCHOOL DESCRIBED IN SECTION 22-1-119.5, C.R.S., OR A HOSPITAL LICENSED OR CERTIFIED PURSUANT TO SECTION 25-1.5-103 (1) (a)
(I) (A) OR 25-1.5-103 (1) (a) (II), AT WHICH ALLERGENS CAPABLE OF CAUSING ANAPHYLAXIS MAY BE PRESENT. THE TERM INCLUDES BUT IS NOT LIMITED TO RECREATION CAMPS, COLLEGES AND UNIVERSITIES, DAY CARE FACILITIES, YOUTH SPORTS LEAGUES, AMUSEMENT PARKS, RESTAURANTS, PLACES OF EMPLOYMENT, SKI AREAS, AND SPORTS ARENAS.
(3) “EMERGENCY PUBLIC ACCESS STATION“ OR “EPAS” MEANS A LOCKED, SECURE CONTAINER USED TO STORE EPINEPHRINE AUTO–INJECTORS FOR USE UNDER THE GENERAL OVERSIGHT OF A MEDICAL PROFESSIONAL, WHICH ALLOWS A LAY RESCUER TO CONSULT WITH A MEDICAL PROFESSIONAL IN REAL TIME BY AUDIO, TELEVIDEO, OR OTHER SIMILAR MEANS OF ELECTRONIC COMMUNICATION. UPON AUTHORIZATION OF THE CONSULTING MEDICAL PROFESSIONAL, AN EPAS MAY BE UNLOCKED TO MAKE AN EPINEPHRINE AUTO–INJECTOR AVAILABLE.
(4) “EPINEPHRINE AUTO–INJECTOR“ MEANS A SINGLE–USE DEVICE USED FOR THE AUTOMATIC INJECTION OF A PREMEASURED DOSE OF EPINEPHRINE INTO THE HUMAN BODY.
(5) “HEALTH CARE PRACTITIONER“ MEANS A PERSON AUTHORIZED BY LAW TO PRESCRIBE ANY DRUG OR DEVICE, ACTING WITHIN THE SCOPE OF HIS OR HER AUTHORITY.
(6) “MEDICAL PROFESSIONAL” MEANS A PHYSICIAN OR OTHER PERSON AUTHORIZED BY APPLICABLE LAW TO PRESCRIBE DRUGS IN THIS STATE OR ANOTHER STATE.
(7) “PHARMACIST“ HAS THE MEANING SET FORTH IN SECTION 12-42.5-102 (28), C.R.S.
(8) “PROVIDE“ MEANS TO SUPPLY ONE OR MORE EPINEPHRINE AUTO–INJECTORS TO AN INDIVIDUAL.
25-47-102. Stock supply of epinephrine auto-injectors emergency administration. (1) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY:
(a) Prescribing to an authorized entity permitted. A HEALTH
CARE PRACTITIONER MAY DIRECT THE DISTRIBUTION OF EPINEPHRINE AUTO–INJECTORS FROM AN IN–STATE PRESCRIPTION DRUG OUTLET TO AN AUTHORIZED ENTITY FOR USE IN ACCORDANCE WITH THIS ARTICLE, AND HEALTH CARE PRACTITIONERS MAY DISTRIBUTE EPINEPHRINE AUTO–INJECTORS TO AN AUTHORIZED ENTITY; AND
(b) Authorized entities permitted to maintain supply. AN AUTHORIZED ENTITY MAY ACQUIRE AND STOCK A SUPPLY OF EPINEPHRINE AUTO–INJECTORS PURSUANT TO A PRESCRIPTION ISSUED IN ACCORDANCE WITH THIS SECTION.
(2) EPINEPHRINE AUTO–INJECTORS MUST BE STORED:
(a) IN A LOCATION THAT WILL BE READILY ACCESSIBLE IN AN EMERGENCY;
(b) ACCORDING TO THE APPLICABLE INSTRUCTIONS FOR USE; AND
(c) IN COMPLIANCE WITH ANY ADDITIONAL REQUIREMENTS THAT MAY BE ESTABLISHED BY THE DEPARTMENT OF HEALTH.
(3) AN AUTHORIZED ENTITY SHALL DESIGNATE EMPLOYEES OR AGENTS WHO HAVE COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 TO BE RESPONSIBLE FOR THE STORAGE, MAINTENANCE,CONTROL, AND GENERAL OVERSIGHT OF EPINEPHRINE AUTO–INJECTORS ACQUIRED BY THE AUTHORIZED ENTITY.
25-47-103. Use of epinephrine auto-injectors. (1) AN EMPLOYEE OR AGENT OF AN AUTHORIZED ENTITY OR OTHER INDIVIDUAL WHO HAS COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 MAY USE EPINEPHRINE AUTO–INJECTORS PRESCRIBED PURSUANT TO SECTION 25-47-102 TO PROVIDE OR ADMINISTER AN EPINEPHRINE AUTO–INJECTOR TO ANY INDIVIDUAL WHO THE EMPLOYEE, AGENT, OR OTHER INDIVIDUAL BELIEVES IN GOOD FAITH IS EXPERIENCING ANAPHYLAXIS, REGARDLESS OF WHETHER THE INDIVIDUAL HAS A PRESCRIPTION FOR AN EPINEPHRINE AUTO–INJECTOR OR HAS PREVIOUSLY BEEN DIAGNOSED WITH AN ALLERGY, OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL; AND
(2) THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR IN ACCORDANCE WITH THIS SECTION IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.
25-47-104. Training. (1) AN EMPLOYEE, AGENT, OR OTHER INDIVIDUAL MUST COMPLETE AN ANAPHYLAXIS TRAINING PROGRAM BEFORE USING AN EPINEPHRINE AUTO–INJECTOR. THE TRAINING MUST BE CONDUCTED BY A NATIONALLY RECOGNIZED ORGANIZATION EXPERIENCED IN TRAINING LAYPERSONS IN EMERGENCY HEALTH TREATMENT OR BY AN INDIVIDUAL OR ENTITY APPROVED BY THE DEPARTMENT OF HEALTH. THE DEPARTMENT OF HEALTH MAY APPROVE SPECIFIC ENTITIES OR INDIVIDUALS TO CONDUCT TRAINING OR MAY APPROVE SPECIFIC CLASSES BY INDIVIDUALS OR ENTITIES. THE TRAINING MAY BE CONDUCTED ON–LINE OR IN–PERSON AND, AT A MINIMUM, MUST COVER:
(a) HOW TO RECOGNIZE THE SIGNS AND SYMPTOMS OF SEVERE ALLERGIC REACTIONS, INCLUDING ANAPHYLAXIS;
(b) THE STANDARDS AND PROCEDURES FOR THE STORAGE AND ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR; AND
(c) EMERGENCY FOLLOW–UP PROCEDURES.
(2) THE INDIVIDUAL OR ENTITY THAT CONDUCTS THE ANAPHYLAXIS TRAINING PROGRAM SHALL ISSUE A CERTIFICATE, ON A FORM DEVELOPED OR APPROVED BY THE DEPARTMENT OF HEALTH, TO EACH PERSON WHO SUCCESSFULLY COMPLETES THE ANAPHYLAXIS TRAINING PROGRAM.
25-47-105. Reporting. AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS SHALL SUBMIT TO THE DEPARTMENT OF HEALTH, ON A FORM DEVELOPED BY THE DEPARTMENT OF HEALTH, A REPORT OF EACH INCIDENT ON THE AUTHORIZED ENTITY‘S PREMISES THAT INVOLVES THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR PURSUANT TO SECTION 25-47-103. THE DEPARTMENT OF HEALTH SHALL ANNUALLY PUBLISH A REPORT THAT SUMMARIZES AND ANALYZES ALL REPORTS SUBMITTED TO IT UNDER THIS SECTION.
25-47-106. Emergency public access stations – life-saving allergy medication. (1) NOTWITHSTANDING ANY LAW TO THE CONTRARY:
(a) A MEDICAL PROFESSIONAL MAY PRESCRIBE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS TO ANY AUTHORIZED ENTITY FOR STORAGE IN AN EPAS, AND MAY PLACE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS IN AN EPAS MAINTAINED BY AN AUTHORIZED ENTITY;
(b) A MEDICAL PROFESSIONAL MAY CONSULT THE USER OF AN EPAS AND MAKE THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; AND
(c) ANY PERSON MAY USE AN EPAS TO ADMINISTER OR PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO AN INDIVIDUAL BELIEVED IN GOOD FAITH TO BE EXPERIENCING ANAPHYLAXIS OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL.
(2) THE USE OF AN EPAS IN ACCORDANCE WITH THIS ARTICLE IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.
25-47-107. Good samaritan protections – liability. (1) THE FOLLOWING INDIVIDUALS AND ENTITIES ARE IMMUNE FROM CRIMINAL LIABILITY AND FROM SUIT IN ANY CIVIL ACTION BROUGHT BY ANY PERSON FOR INJURIES OR RELATED DAMAGES THAT RESULT FROM AN ACT OR OMISSION TAKEN PURSUANT TO THIS ARTICLE:
(a) AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;
(b) AN AUTHORIZED ENTITY THAT DOES NOT POSSESS OR MAKE AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;
(c) AN INDIVIDUAL OR ENTITY THAT CONDUCTS AN ANAPHYLAXIS TRAINING PROGRAM;
(d) AN INDIVIDUAL WHO PRESCRIBES OR DISPENSES AN EPINEPHRINE AUTO–INJECTOR;
(e) AN INDIVIDUAL WHO ADMINISTERS OR PROVIDES AN EPINEPHRINE AUTO–INJECTOR;
(f) A MEDICAL PROFESSIONAL WHO CONSULTS THE USER OF AN EPAS AND MAKES THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; OR
(g) AN INDIVIDUAL WHO USES AN EPAS.
(2) IMMUNITY UNDER SUBSECTION (1) OF THIS SECTION DOES NOT APPLY TO ACTS OR OMISSIONS THAT ARE GROSSLY NEGLIGENT OR WILLFUL AND WANTON.
(3) THIS SECTION DOES NOT ELIMINATE, LIMIT, OR REDUCE ANY OTHER IMMUNITY OR DEFENSE THAT MAY BE AVAILABLE UNDER STATE LAW, INCLUDING THE PROTECTIONS SET FORTH IN SECTION 13-21-108, C.R.S. PROVIDING OR ADMINISTERING AN EPINEPHRINE AUTO–INJECTOR BY AN ENTITY OR INDIVIDUAL IS DEEMED EMERGENCY CARE OR EMERGENCY ASSISTANCE FOR PURPOSES OF SECTION 13-21-108, C.R.S.
(4) AN AUTHORIZED ENTITY LOCATED IN THIS STATE THAT PROVIDES OR ADMINISTERS AN EPINEPHRINE AUTO–INJECTOR OUTSIDE OF THIS STATE IS NOT LIABLE FOR ANY RESULTING INJURIES OR RELATED DAMAGES IF THE AUTHORIZED ENTITY:
(a) WOULD NOT BE LIABLE FOR THE INJURIES OR RELATED DAMAGES IF THE EPINEPHRINE AUTO–INJECTOR HAD BEEN PROVIDED OR ADMINISTERED IN THIS STATE; OR
(b) IS NOT LIABLE FOR INJURIES OR RELATED DAMAGES UNDER THE LAW OF THE STATE WHERE THE AUTHORIZED ENTITY PROVIDED OR ADMINISTERED THE EPINEPHRINE AUTO–INJECTOR.
25-47-108. Health care professionals – hospitals – obligations under state and federal law. NOTHING IN THIS ARTICLE LIMITS THE OBLIGATIONS OF A HEALTH CARE PROFESSIONAL OR HOSPITAL UNDER STATE OR FEDERAL LAW IN PRESCRIBING, STORING, OR ADMINISTERING DRUGS OR DEVICES.
SECTION 2. In Colorado Revised Statutes, 12-36-117, amend
(1.8) as follows:
12-36-117. Unprofessional conduct. (1.8) A licensee shall IS not be subject to disciplinary action by the board for issuing standing orders and protocols regarding the use of epinephrine auto-injectors in a public or nonpublic school in accordance with the requirements of section 22-1-119.5, C.R.S., or for the actions taken by a school nurse or by any designated school personnel who administer epinephrine auto-injectors in accordance with the requirements of section 22-1-119.5, C.R.S., OR FOR PRESCRIBING EPINEPHRINE AUTO–INJECTORS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.
SECTION 3. In Colorado Revised Statutes, 12-38-125, add (1) (o) as follows:
12-38-125. Exclusions. (1) No provision of this article shall be construed to prohibit:
(o) A PRESCRIPTION BY AN ADVANCED PRACTICE NURSE WITH PRESCRIPTIVE AUTHORITY FOR THE USE OF EPINEPHRINE AUTO–INJECTORS BY AN AUTHORIZED ENTITY IN ACCORDANCE WITH ARTICLE 47 OF TITLE 25,
C.R.S.
SECTION 4. In Colorado Revised Statutes, 12-42.5-102, amend
(42) (b) (XV) as follows:
12-42.5-102. Definitions. As used in this article, unless the context otherwise requires or the term is otherwise defined in another part of this article:
(42) (b) “Wholesale distribution” does not include:
(XV) The distribution, donation, or sale by a manufacturer or wholesaler of a stock supply of epinephrine auto-injectors to public schools or nonpublic schools for emergency use by designated school personnel in accordance with the requirements of section 22-1-119.5, C.R.S., OR TO OTHER ENTITIES FOR EMERGENCY USE IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.
SECTION 5. Appropriation. For the 2015-16 state fiscal year, $23,736 is appropriated to the department of public health and environment for use by the disease control and environmental epidemiology division.
This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.4 FTE. To implement this act, the division may use this appropriation for costs to implement this act.
SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.
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US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
Posted: May 25, 2015 Filed under: Minors, Youth, Children, Missouri | Tags: agency, Boy Scouts, Boy Scouts of America, BSA, Fort Leonard Wood, Recreational Use Statute, Respondeat Superior Leave a commentAgency requires more than just relationship; it requires actual control over the alleged agents.
Wilson v. United States, 989 F.2d 953; 1993 U.S. App. LEXIS 6165, (8th Cir. 1993)
State: Missouri, United States Court of Appeals for the Eighth Circuit
Plaintiff: Mark D. Wilson; Janet L. Wilson, Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump
Defendant: United States of America; the Boy Scouts of America
Plaintiff Claims: Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors
Defendant Defenses: No relationship between the BSA and the adult volunteers and the Missouri Recreational Use Statute
Holding: for the Defendant
Year: 1993
A group of Boy Scouts and their adult leaders were at Fort Leonard Wood, a US Army military post for the weekend to participate in the Army’s Youth Tour Program. The boys and adults stayed in a barrack. Stacked beside the barrack were aluminum alloy irrigation pipes that were approximately 30’ long. The pipes were stacked there when not in use for six years.
Three of the boys grabbed one of the pipes and carried it 20’ west of the building and raised it to a vertical position. It came in contact with a high-voltage line injuring two boys and killing one.
Because one of the defendants was the United States, as the owner of the land and property under the supervision and control of the US Army, the case was brought in the Federal District Court of Missouri for the Eastern District of Missouri.
The trial court dismissed the claims of all plaintiffs because of the Missouri recreational use act for the defendant US Army, and the BSA did not owe the plaintiff’s a duty of care. The plaintiff’s appealed.
Analysis
To sue an agency of the United States, your claims must meet the requirements of the Federal Tort Claims Act. The act allows the defendant to assert any defense allowed under the act and as allowed under the law of the state where the incident occurred.
In this case, the defendant US raised the defense provided by the Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348. The act provides immunity to landowners who make their property available for recreation without an entry charge.
Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.
Recreational use is defined by the act as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports.”
The immunity is available unless the landowner is:
…found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes.
The Army charged $2.00 per person to say in the building. The plaintiff’s argued that the recreational use act then did not apply to the defendant US Army.
1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.
The Fort was called an open military post. That means that members of the public were allowed to visit the post. The post was open to the public for “fishing, hunting, hiking, camping, picnicking or canoeing.” The Fort also offered the Youth Tour Program which allowed national youth organizations such as the BSA special programs not available to the general public. These programs included “visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.”
If the youth group or in this case, the BSA, want to spend the night, the Army charges a $2.00 per person fee.
This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night.
The application of the Missouri Recreational Use Statute, construes fees in the act as defined to enter upon the land. The $2.00 fee was paid to stay overnight in the building, entrance onto the base was free.
There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” fee, and that it is assessed on a per person/per night basis.
The remaining arguments presented by the plaintiffs were quickly dismissed by the court in a paragraph for each argument.
The court then turned to the claims against the Boy Scouts of America. In order to hold the National Council of the BSA liable for the acts of the volunteer adult leaders in Missouri, the plaintiff has to prove an agency relationship existed between the BSA and the adults. This would allow the plaintiff’s to argue a vicarious liability claim against the BSA.
The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.
The court then accurately related the legal relationship between the BSA national office and volunteers of a unit.
The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.
The court then examined the requirements of respondeat superior, needed to hold an employer liable for the acts of an employee.
Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” If there is no right to control, there is no liability.
The plaintiff failed to produce any evidence that the BSA national council has any control over the “specific activities of individual troops, or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity.”
The appellate court upheld the lower court’s dismissal of the case.
So Now What?
This is another situation where the recreational use statute has been parsed by how the many paid were used by the landowner. Money paid to enter the land does not allow the landowner to use the defense of the state recreational use statute. Money paid for other things once on the land may still allow the use of the statute as a defense.
However, this is a narrow reading of the law and would be specific to each state law. Make sure you have consulted with a local attorney familiar with the law before making this decision to charge for other items.
The Boy Scouts of America do not supervise, control or have any power or authority over its volunteers.
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Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165
Posted: May 24, 2015 Filed under: Legal Case, Minors, Youth, Children, Missouri | Tags: agency, Boy Scouts, Boy Scouts of America, BSA, Fort Leonard Wood, Recreational Use Statute, Respondeat Superior Leave a commentWilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165
Mark D. Wilson; Janet L. Wilson, Appellants, v. United States of America; The Boy Scouts of America, Appellees. Mark D. Wilson; Janet L. Wilson, Plaintiffs, v. The Boy Scouts of America, Defendants. Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump, Appellants, v. United States of America; The Boy Scouts of America, Appellees.
No. 92-1438, No. 92-3363
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
989 F.2d 953; 1993 U.S. App. LEXIS 6165
September 18, 1992, Submitted
March 29, 1993, Filed
SUBSEQUENT HISTORY: [**1] Rehearing Denied May 10, 1993, Reported at: 1993 U.S. App. LEXIS 10903.
PRIOR HISTORY: Appeals from the United States District Court for the Eastern District of Missouri. District No. 89-1696-C-7. Jean C. Hamilton, U.S. District Judge.
DISPOSITION: Affirmed
CASE SUMMARY:
COUNSEL: For MARK D. WILSON, JANET L. WILSON, Plaintiffs – Appellants: Alan E. DeWoskin, 314-727-6330, Suite 426, 225 S. Meramec Avenue, St. Louis, MO 63105.
For UNITED STATES OF AMERICA, Defendant – Appellee: Joseph Moore, Asst. U.S. Attorney, 314-539-3280, U.S. ATTORNEY’S OFFICE, 1114 Market Street, St. Louis, MO 63101. Robert William Cockerham, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400. For BOY SCOUTS, OF AMERICA, Defendants – Appellees: Russell F. Watters, Robert William Cockerham, Thomas Michael Ward, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400.
JUDGES: Before HANSEN, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.
OPINION BY: ROSS
OPINION
[*954] ROSS, Senior Circuit Judge.
Appellants Mark Wilson and Janet Wilson, the parents of Anthony Wilson, and [*955] Jason Harbian and Daniel Winfrey, and their parents, appeal from the trial court’s 1 grant of summary judgment in favor of appellees United States of America and the Boy Scouts of America, in an action arising out of the death of Anthony Wilson and the injuries sustained by Jason Harbian and Daniel Winfrey.
1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.
On April 22, 1988, Anthony Wilson, Daniel Winfrey and Jason Harbian, members of Troop 392 of the Boy Scouts of America, St. Louis Area Council, along with other boy scouts and five adult leaders, went to Fort Leonard Wood, a United States Army military post, on a boy scout trip as part of the Army’s Youth Tour Program. A pile of lightweight aluminum [**2] alloy irrigation pipes, approximately thirty feet in length, were stacked outside Building 1614, where the troop was billeted for the weekend. The pipes had been used for irrigation of the athletic field adjacent to the building, and when not in use, were stored alongside the building. The pipes had been stacked in this manner for approximately six years.
On the second night of their weekend stay, at approximately 10:30 p.m., Anthony, age thirteen, and five or six other scouts, ages twelve to sixteen, were outside Building 1614, while the leaders were inside the building. Anthony, Daniel and Jason picked up one of the aluminum pipes, carried it approximately twenty feet west of the building, and raised it to a near vertical position, causing the pipe to come in contact with a 7,200 volt power line which ran over the building. All three scouts received electric shocks; Anthony died as a result of the injuries he sustained.
Mark and Janet Wilson brought a wrongful death action against the United States pursuant to the Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors. [**3] Sometime later the Harbian/Winfrey plaintiffs filed personal injury actions against both the United States and the BSA, and eventually these cases were consolidated with the Wilson case for trial. Motions for summary judgment filed by the United States and the BSA were eventually granted as against all appellants. 2
2 On December 4, 1992, following oral argument of the Wilson appeal before this court, the Harbian and Winfrey cases were consolidated with the Wilson appeal. All parties agree that these cases arose from the same occurrence and are identical in material fact and law. The Harbians and the Winfreys rely on the briefs and oral argument submitted in the Wilson appeal. The Wilsons, Harbians and Winfreys will be collectively referred to as “appellants.”
The appellants’ theory of recovery against the BSA is based on an alleged agency relationship between the BSA and the adult volunteers supervising the scouts. The district court granted the BSA’s motion for summary judgment, concluding [**4] that appellants failed to produce any evidence that the national organization of the BSA had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. The district court also granted the United States’ motion for summary judgment based on its finding that the United States owed no duty of care to the scouts because they were recreational users of the property under Missouri’s Recreational Land Use Statute. See Mo. Rev. Stat. § 537.346. After careful consideration of each allegation raised by the appellants, we affirm the decision of the district court.
I. United States of America
The action against the United States arises [HN1] under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, thus, the “United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.” Id. at § 2674. Further, the United States is “entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States . . . as well as any other defenses to which the United States is entitled.” [**5] Id. Therefore, the United States is entitled to [*956] the benefit of state recreational use statutes, if applicable, when it is sued under the Federal Tort Claims Act. See Hegg v. United States, 817 F.2d 1328, 1329 (8th Cir. 1987) (construing the Iowa Recreational Use Statute); Umpleby v. United States, 806 F.2d 812, 815 (8th Cir. 1986) (applying North Dakota’s Recreational Use Statute).
[HN2] The Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348 immunizes landowners who make their property available for the recreational use of others without an entry charge. The statute specifically provides:
[HN3] Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.
Id. at § 537.346. “Charge” is defined in the statute as:
[HN4] the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational [**6] purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.
Id. at § 537.345(1). “Recreational use” as defined in the statute includes outdoor activities, such as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports. Id. at § 537.345(4).
[HN5] While providing for a general immunity against liability, a landowner may nonetheless be liable if found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Id. at § 537.348(1). Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes. Id. at § 537.348(3)(d).
The appellants contend that the Missouri Recreational Land Use Statute does not apply to the United States because (1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States [**7] receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.
A.
Fort Leonard Wood is an open military post, where members of the public can freely enter without being stopped or questioned by guards or military police. Specified areas are open to the public for fishing, hunting, hiking, camping, picnicking or canoeing. Many tours are given to various groups, such as senior citizens and church and school groups, free of charge. The Fort also offers a Youth Tour Program which is open only to national youth organizations, such as the Boy Scouts of America. The program includes activities which are not available to the general public, such as visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.
If a troop in the Youth Tour Program chooses to stay overnight in Building 1614, a $ 2.00 per person/per night lodging fee is charged. This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, [**8] soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night. Significantly, the lodging fee is charged on a per person/per night basis, while there is no charge for the tour itself, which is offered only on Saturdays.
The interpretation of the various recreational use statutes is controlled by the precise language of each statute. Courts that have construed recreational land use statutes with language similar to the Missouri statute have interpreted “charge” as ” [*957] an admission fee to enter the land.” For example, in Genco v. Connecticut Light and Power Co., 7 Conn. App. 164, 508 A.2d 58, 62 (Conn. App. Ct. 1986), noting that the Connecticut General Statute § 52-557f defines “charge” as “the admission price or fee asked in return for invitation or permission to enter or go upon the land,” the court held that “the only way to avoid inconsistent application of the Act . . . is to interpret the word ‘charge’ as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.” Id. (emphasis added).
Furthermore, a parking fee paid by [**9] a camper is not a charge within the meaning of the Nebraska Recreational Use Statute, which defines “charge” as “the amount of money asked in return for an invitation to enter or go upon the land.” Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309, 313 (Neb. 1984) (emphasis added). In Garreans, the court noted that the
charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee . . . did not entitle . . . [the person paying the fee] to a greater right to use any of the park’s other facilities than that had by the general public.
Id.
As in Jones v. United States, 693 F.2d 1299, 1303 (9th Cir. 1982), where a one dollar fee was charged the injured plaintiff to rent an inner tube for snow sliding, the fee paid by the scouts to bunk in Building 1614 was not “charged to members of the public for entry on to the land or for use of the land.” Id. Rather, the scouts paid the $ 2.00 fee to bunk in Building 1614, but entered the park without paying a fee. The Jones court held that the plaintiff [**10] “could have used . . . the Park without making any payment if she had brought her own tube.” Id. Similarly, the appellants could have used Fort Leonard Wood without making this $ 2.00 payment if they had chosen not to stay overnight. The Missouri statute does not provide that the immunity for an entire parcel should be nullified if a landowner charges for admission to a different portion of the parcel, nor would such a rule be consistent with the statute’s purpose. “Consideration should not be deemed given . . . unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admission fee.” Moss v. Department of Natural Resources, 62 Ohio St. 2d 138, 404 N.E.2d 742, 745 (Ohio 1980) (emphasis added).
The appellants herein paid $ 2.00 per night for the right to stay overnight in Building 1614. There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all of the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” [**11] fee and that it is assessed on a per person/per night basis. The appellants have failed to present any evidence that the fee was required in order to enter Fort Leonard Wood.
B.
The remainder of appellants’ arguments with regard to the liability of the United States are also without merit. The appellants contend that the United States is outside the protection of the Missouri Recreational Land Use Statute because the scouts are not “members of the general public.” They contend that because only members of national youth organizations are eligible to participate in the Youth Tour Program, the scouts should be treated as guests or invitees. Appellants’ argument, however, relies upon a distinction not made within the language of the Missouri Recreational Land Use Statute. The plain language of the statute indicates that a landowner owes no duty of care “to any person who enters on the land without charge” for recreational purposes. Mo. Rev. Stat. § 537.346 (emphasis added).
We also reject the appellants’ argument that the United States is outside the protection of the Missouri statute because the Army’s purpose in allowing admission to Fort Leonard Wood is to develop public [*958] goodwill [**12] in fostering a business purpose. See Mo. Rev. Stat. § 537.345(1). When Boy Scout troops visit the Fort, they are not recruited or encouraged in any way to join the Army, nor are any records kept of scouts who have participated in the Youth Tour Program. Further, appellants have failed to establish that the Army operates as a business within the intended meaning of the statute.
Finally, appellants’ argument that Building 1614 was essentially a commercial “hotel” located in a “populated, residential area,” and therefore falls within the “noncovered land” exception of section 537.348(3)(d) is without merit. The record does not support appellants’ contention that the Fort was “predominately used for residential purposes,” nor that Building 1614 was operated as a commercial enterprise. Nor can we accept appellants’ argument that the United States acted with willful and wanton disregard for the safety of the troops or negligently failed to protect them against an ultrahazardous condition. There simply has been no evidence presented to establish either of these theories.
The judgment of the district court granting summary judgment in favor of the United States is affirmed.
II. Boy [**13] Scouts of America
The appellants also challenge the district court’s grant of summary judgment in favor of the Boy Scouts of America. The appellants contend there is a genuine issue of material fact as to whether an agency relationship existed between the BSA and the adult volunteers of Troop 392 so as to provide for vicarious liability for any negligence on the part of the adult leaders. The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.
The appellants first argue that the district court improperly considered the affidavit of Lloyd Roitstein, Area Director in the North Central Region of the Boy Scouts of America, in considering the relationship between the national organization and the individual troops because the affidavit was not based on personal knowledge. We agree with the district court that Roitstein’s role as an Area Director [**14] establishes his personal familiarity with the Boy Scout organization and conclude that the affidavit was properly considered.
The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.
[HN6] Under the doctrine of respondeat superior an employer is liable for the negligent acts or omissions of his employee which are committed within the scope of his employment. Light v. Lang, 539 S.W.2d 795, 799 (Mo. App. Ct. 1976). [**15] Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. Usrey v. Dr. Pepper Bottling Co., 385 S.W.2d 335, 338 (Mo. Ct. App. 1964). The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” Id. at 339. If there is no right to control, there is no liability.
Courts of other jurisdictions that have addressed the issue now before this court have rejected the imposition of liability against the BSA or the local councils, [*959] noting the lack of control these entities exercise over individual troops and their sponsoring organizations. For example, in Mauch v. Kissling, 56 Wash. App. 312, 783 P.2d 601 (Wash. Ct. App. 1989), the court found there was no basis for the doctrine of apparent authority because the plaintiff had not presented evidence that BSA consented to or had control of the scoutmaster’s activities. Id. at 605.
Similarly, in Anderson v. Boy Scouts of America, Inc., 226 Ill. App. 3d 440, 589 N.E.2d 892, 168 Ill. Dec. 492 (Ill. App. Ct. 1992), [**16] the court found the plaintiffs had failed to establish that an agency relationship existed between the plaintiffs and the local council or the BSA:
We find no provisions in the charter, bylaws, rules and regulations promulgated by the BSA, nor can plaintiffs cite to any provisions within these documents, which specifically grant BSA or its district councils direct supervisory powers over the method or manner in which adult volunteer scout leaders accomplish their tasks.
Id. at 894-95.
Recently, the Missouri Court of Appeals considered the Wilson’s cause of action against the St. Louis Area Council of the Boy Scouts of America, arising from the same circumstances of the instant case. The Missouri court dismissed the suit against the local council, finding that “Council neither controlled the actions of the troop leaders nor ran the program at Fort Leonard Wood.” While the Missouri state court decision involved the local council, it is instructional here because the relationship between the national organization and the individual troop leaders is even more remote.
Appellants also contend that sufficient facts establish a jury question as [**17] to whether a principal/agent relationship existed under a theory of implied agency or apparent authority. Implied agency and apparent authority, however, are based on manifestations by the principal which causes a third person reasonably to believe that an agent of the principal is authorized to do certain acts. Barton v. Snellson, 735 S.W.2d 160, 162 (Mo. Ct. App. 1987). Appellants contend the use of common uniforms, emblems, books and awards in the scouting program, a national insurance program, issuance of the national membership card and other printed materials locally, as well as other indicia of a relationship between BSA and the local council, create a manifestation of authority upon which an innocent third party might reasonably rely.
Appellants fail, however, to produce any evidence that BSA manifested that it had direct control over the specific activities of individual troops or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. On the contrary, the Boy Scout Handbook clearly provides, “what the troop does is planned by the patrol leaders’ council.” The organizational structure of the BSA [**18] leaves the control of the specific activities at the level closest to the individual troop. Appellants have produced no direct or circumstantial evidence to suggest that in this case BSA manifested control.
In summary, we conclude that the district court properly granted summary judgment in favor of the Boy Scouts of America and the United States. The judgment of the district court is affirmed.
Grand Canyon Gondola Project seems to be Derailed
Posted: May 21, 2015 Filed under: Arizona | Tags: Development, Grand Canyon, Grand Canyon Trust, x, y, z Leave a comment
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Duty of care for a Massachusetts campground is to warn of dangerous conditions.
Posted: May 18, 2015 Filed under: Assumption of the Risk, Camping, Massachusetts | Tags: Camper, Campground, Commercial Campground, Inc., Land Owner, Landowner, Pathway, Restroom, Shower, Vacation Camp Resorts International, Yogi Bear's Jellystone Park Campground Leave a commentPlaintiff assumes the risk of his injury at a commercial campground if there is not dangerous condition and/or he knows about the condition because he walks the trail during the day.
State: Massachusetts, Appeals Court of Massachusetts
Plaintiff: Anthony Monaco
Defendant: Vacation Camp Resorts International, Inc.’s (VCRI’s) Yogi Bear’s Jellystone Park Campground
Plaintiff Claims: negligent in failing to light the “pathway”3 and maintain it in a safe condition, to warn against its use, or to construct a graded path in its place
Defendant Defenses: Assumption of the Risk
Holding: for the defendant
Year: 2014
This case involves a commercial campground. The plaintiff was walking up to the restroom at night and fell on the path. He sued for his injuries. The plaintiff sued the campground and others who were never clearly identified in the appellate decision.
The lower court stated the plaintiff assumed the risk based upon the defendant’s motion for summary judgment, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court first reviewed the requirements for a negligence suit to succeed under Massachusetts law and condensed the four steps to one sentence. “To succeed in an action for negligence, the plaintiff must establish duty, breach, causation, and damages.” The duty of care is only owed to those who are foreseeably endangered by the contact with the defendant.
Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.
The duty of a land owner in Massachusetts is that of reasonable care “under all the circumstances in the maintenance and operation of their property.”
Although landowners should anticipate and take measures to avoid the risks that their property poses to invitees, they are not obligated to “consistently and constantly” check for dangerous conditions. The law does not impose a duty on landowners to exercise precautions, unless the dangers are “readily observable” by landowners and imperceptible to invitees. That is, an open and obvious danger negates the existence of a duty of care.
The fact that the plaintiff was injured does not create a legal obligation or duty on the part of the defendant. Evidence is needed to support the lack of care or proof the landowner k of the dangerous condition.
…evidence, other than “the obviousness of the steep slope,” that the pathway posed an apparent danger. To support his claim, the plaintiff submitted expert testimony that the pathway was “rutted,” “uneven,” and “unlit,” and did not comport with International Building Code standards.
The plaintiff had descended the hill earlier and had not seen a dangerous condition. In fact, the plaintiff had been using the campground for eighteen years and had used the path three times the day he fell.
Nor had a dangerous condition on the hillside been identified or spotted during the camps annual inspection.
Both parties had ample opportunities to observe the campground, yet neither noticed any unreasonable dangers. The only risk associated with the pathway was the open and obvious nature of its slope and uneven terrain, which did not impose any duty on the defendants to light or otherwise improve the path.
The court held the defendants owed not duty to protect the plaintiff from the conditions on the pathway.
So Now What?
The requirement that a landowner is not obligated to consistently and constantly check for dangerous conditions is not found in all states. In most states if the dangerous condition exists, the landowner must fix it or warn of it.
The obligations or duties owed to people on your land are usually based upon the reasons why the injured person was originally upon your land. In Massachusetts that issue is not discussed.
Here the obligation was to warn or correct dangerous conditions. It did not matter why the person was on the land.
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