Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Posted: August 26, 2013 Filed under: Climbing Wall, Legal Case, New York, Release (pre-injury contract not to sue) | Tags: Bacchiocchi v Ranch Parachute Club, Bouldering, Cause of action, Climbing Wall, Cornell University, education, Ithaca, New York, Release, Rock climbing, Supreme Court 4 CommentsLemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)
Decided and Entered: December 11, 2003
93723
[*1]Nadine Lemoine, Appellant, v Cornell University, Respondent.
Memorandum and Order
Calendar Date: October 15, 2003
Before: Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ.
Lo Pinto, Schlather, Solomon & Salk, Ithaca
(Raymond M. Schlather of counsel), for appellant.
Nelson E. Roth, Cornell University, Ithaca, for
respondent.
Cardona, P.J.
Appeal from an order of the Supreme Court (Mulvey, J.), entered January 2, 2003 in Tompkins County, which granted defendant’s motion to dismiss the complaint.
Plaintiff alleges that she sustained injuries on January 30, 2000, when she fell from the Lindseth Climbing Wall at defendant’s university during the first session of a seven-week basic rock climbing course offered by defendant’s outdoor education program. She had taken the same course eight years earlier, but had not taken any further instruction in the intervening years. Plaintiff registered, paid the tuition for the class, watched the orientation video describing safety procedures and signed a release holding defendant harmless from liability for, inter alia, any injuries caused by use of the climbing wall, including those caused by defendant’s own negligence. Plaintiff, as a climbing student, also signed a “Contract to Follow Lindseth Climbing Wall Safety Policies,” which included a promise that she would not climb above the yellow “bouldering” line without the required safety equipment. Prior to the accident, plaintiff, who was not wearing safety equipment, alleged that she was climbing with most of her body above the bouldering line. At the time, plaintiff and approximately 10 other students were under the supervision of two instructors. As she descended, instructor Michael Gilbert allegedly told her where to place her hands and feet. Plaintiff asserts that she lost her footing and fell to the floor [*2]below, which she described as “virtually unpadded.”[FN1] Thereafter, plaintiff commenced this action asserting negligence and gross negligence. Defendant moved to dismiss based upon the release and the safety contract, as well as a claim that plaintiff failed to set forth a cause of action [FN2]. Supreme Court granted defendant’s motion, prompting this appeal.
Plaintiff contends that the release and safety contract are void as against public policy by operation of statute, and, as a result, Supreme Court erred in granting defendant’s motion to dismiss. General Obligation Law § 5-326 states in pertinent part:
“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”
The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F Supp 2d 92, 99 [1998]; McDuffie v Watkins Glen Intl., 833 F Supp 197, 202 [1993]). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370 [1994]), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145 [1985]), have been found to be outside the scope of the statute.
In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility (see Fusco v Now & Zen, 294 AD2d 466, 467 [2002]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175-176 [2000]; Baschuk v Diver’s Way Scuba, supra at 370). Difficulties arise in this area of law in situations where a person is injured at a mixed-use facility, namely, one which provides both recreation and instruction. In some cases, courts have found that General Obligations Law § 5-326 voids the particular release where the facility provides instruction only as an “ancillary” [*3]function, even though it is a situation where the injury occurs while receiving some instruction (see e.g. Bacchiocchi v Ranch Parachute Club, supra at 175-176; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1002-1003 [1978]). In other mixed-use cases, courts focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, supra at 99).
Here, plaintiff points out that her enrollment in the class entitled her to a discounted fee rate in the event that she sought use of the climbing wall on nonclass days and, additionally, defendant allowed its students, alumni and graduates of the rock climbing course to use the wall as long as they paid the regular fee and watched the safety video. Consequently, plaintiff, citing Bacchiocchi v Ranch Parachute Club (supra), argues that since this facility is both recreational and instructional, General Obligations Law § 5-326 must apply. While it may be true that defendant’s facility is a mixed use one, given that defendant is unquestionably an educational institution, along with the fact that the brochure and course materials in the record indicate that the purpose of the climbing wall facility was “for education and training in the sport of rockclimbing,” it is apparent that any recreational use of the wall by nonstudents would be ancillary to its primary educational purpose (cf. Bacchiocchi v Ranch Parachute Club, supra). Furthermore, even focusing primarily on plaintiff’s purpose at the facility, it is undisputed herein that she enrolled in the course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods (cf. Scrivener v Sky’s the Limit, supra at 281). Therefore, under all the circumstances, we find that Supreme Court properly found the statute to be inapplicable.
Having found that the release and safety contract were not voided by the statute, we now decide whether they are dispositive in this case (cf. Gross v Sweet, 49 NY2d 102, 107 [1979]). For example, the release unambiguously acknowledges, inter alia, the inherent risks of rock climbing and the use of the climbing wall, including the risk of injury from falling off the wall onto the floor below, which is what plaintiff describes as happening in this case. The release further holds defendant harmless from liability from any negligence, including that related to plaintiff’s supervised or unsupervised use of the wall. Given plaintiff’s signature and initials on these documents, we conclude that dismissal was proper.
Turning to plaintiff’s contention that, even if the statute is applicable, defendant’s motion to dismiss should not have been granted because the release and safety contract, standing alone, would not defeat a claim adequately alleging gross negligence (see Amica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835, 836 [1995]). Significantly, gross negligence is reckless conduct that borders on intentional wrongdoing and is “different in kind and degree” from ordinary negligence (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]; see e.g. Green v Holmes Protection of N.Y., 216 AD2d 178, 178-179 [1995]). Where a complaint does not allege facts sufficient to constitute gross negligence, dismissal is appropriate (see Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, supra at 431). Even assuming that plaintiff’s specific allegations are true, we agree with Supreme Court that they constitute only ordinary negligence and cannot survive the motion to dismiss.
The remaining arguments raised by plaintiff have been examined and found to be either unpersuasive or rendered academic by our decision herein.
Crew III, Carpinello, Rose and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnotes
Footnote 1: The incident report form, which plaintiff disputes, states that she “decided to jump down.” Defendant’s employees also assert that the floor was padded and plaintiff was four feet from the ground at the time that she left the wall.
Footnote 2: We note that although defendant’s motion states that it is pursuant CPLR 3211 (a) (1) and (7), it appears from the language therein that it is also premised upon CPLR 3211 (a) (5).
WordPress Tags: Lemoine,Cornell,LEXIS,December,Nadine,Appellant,Respondent,Memorandum,Order,Calendar,Date,October,Cardona,Crew,Carpinello,Rose,Lahtinen,Pinto,Schlather,Solomon,Salk,Ithaca,Raymond,Nelson,Roth,Appeal,Supreme,Court,Mulvey,January,Tompkins,defendant,complaint,Plaintiff,injuries,Lindseth,Wall,session,education,instruction,tuition,procedures,negligence,student,Contract,Policies,equipment,Prior,accident,students,supervision,instructors,instructor,Michael,Gilbert,feet,Thereafter,action,policy,statute,General,Obligation,covenant,agreement,connection,collateral,membership,ticket,admission,owner,operator,gymnasium,amusement,recreation,establishment,user,facilities,compensation,person,agents,servants,employees,parks,clauses,tickets,Supp,McDuffie,Watkins,Glen,Intl,Millan,Brown,Chieco,Baschuk,Diver,Scuba,Meier,Bars,scope,certificate,incorporation,statement,purpose,money,Fusco,Bacchiocchi,Ranch,Parachute,Club,Difficulties,area,situations,Obligations,situation,injury,Wurzer,Seneca,Sport,Scrivener,Limit,Here,enrollment,event,alumni,institution,fact,brochure,lessons,periods,Gross,Sweet,example,Given,signature,dismissal,contention,Amica,Hart,Alarm,degree,Sutton,Park,Corp,Guerin,Agency,Holmes,Protection,Where,allegations,arguments,decision,Footnotes,Footnote,incident,CPLR,alia,upon,pursuant,whether,instructional,supra
Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)
Posted: August 26, 2013 Filed under: Connecticut, Legal Case, Mountain Biking, Summer Camp | Tags: Camp Kenwood, Connecticut, Inc. dba Camp Kenwood, Open and Obvious, Personal Liability, Summerland Leave a commentWynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)
John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers v. Summerland, Inc. dba Camp Kenwood et al.
LLICV095006358S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD
2012 Conn. Super. LEXIS 2684
November 1, 2012, Decided
November 2, 2012, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
JUDGES: [*1] John W. Pickard, J.
OPINION BY: John W. Pickard
OPINION
MEMORANDUM OF DECISION
This is a wrongful death action arising out of the death of Hunter E. Brothers (“Brothers”), a thirteen-year-old camper at Camp KenWood, a summer youth camp in Kent, Connecticut. Brothers died while engaged in a mountain biking activity supervised by two counselors from the camp. The defendant, Summerland, Inc. d/b/a Camp KenWood operated the camp. The defendants, David B. Miskit and Sharon B. Miskit (“the Miskits”), are directors of Camp KenWood. All defendants have moved for summary judgment (#152). The plaintiff, John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers, objects (#158). The court heard oral argument on September 17, 2012.
I. Personal Liability of David and Sharon Miskit
The first basis of the motion for summary judgment is stated by the defendants as follows: “There is no genuine issue of material fact that David Miskit and Sharon Miskit, as officers of a corporation, do not incur personal liability for the corporation’s torts merely because of their official position. There is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor is there any evidence [*2] that Summerland served merely as their alter ego. Thus, summary judgment should enter in favor of David Miskit and Sharon Miskit.”
Paragraph 30 of the third count of the plaintiff’s complaint is based on negligence and is directed against the Miskits as follows: “David Miskit, as President of Summerland, and David and Sharon Miskit, as Directors of Camp KenWood, owed a duty of care to Brothers, because Brothers was a minor child who was entrusted to the care of David and Sharon Miskit, and under Section 19-13-B27a(s) of the Regulations of Connecticut State Agencies, which provides as follows: ‘The camp director shall be responsible at all times for the health, comfort and safety of campers.'” Thus, David Miskit is sued as President of Summerland, Inc. and as a director of Camp Kenwood. Sharon Miskit is sued only as a director of Camp Kenwood.
The Miskits claim that there is no genuine issue of material fact that they do not incur personal liability for the corporations’ torts merely because of their official position. The plaintiff argues that the Miskits, as directors of Camp KenWood, owed Hunter a duty of care imposed by the statutes and regulations of the State of Connecticut. The [*3] plaintiff did not present a serious argument that David Miskit owed a duty of care to Brothers merely because he was the President of Summerland, Inc.
Before discussing the Miskits’ basis for summary judgment, it is necessary to distinguish between directors of corporations and directors of youth camps. [HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. C.G.S. §19a-422(c) provides: “[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.” C.G.S. §19a-428(a) provides that: “The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff . . .”
The regulations adopted by the Commissioner of Public Health pertaining to youth camps are found in Regs., Connecticut State Agencies §19-13-B27a. Subsection (n) of that regulation provides, in part: [HN2] “(1) No person [*4] shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.” Subsection (s) of that regulation provides [HN3] “Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.”
[HN4] The statutory and regulatory scheme with [*5] respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.
Turning to the first basis for summary judgment, the defendants are correct that David Miskit, as President of Summerland, Inc., cannot be liable for the negligence of the corporation absent evidence that he used the corporation as his alter ego. The plaintiff has not made the allegations which would be necessary to pierce the corporate veil. The real ground for the liability of the Miskits rests not on their status as directors or officers of Summerland, Inc., or on piercing the corporate veil, but upon their liability as directors of Camp KenWood.
The motion [*6] for summary judgment and the supporting brief never address the real ground of liability alleged by the plaintiff against the Miskits that as directors of Camp Kenwood they breached their statutory and regulatory duty to be responsible for the health, comfort and safety of the campers including Brothers. Instead, the defendants focus on whether the Miskits can be liable based upon their official capacities at Summerland, Inc. The last two sentences of the defendants’ brief on this point reads: “In short, David and Sharon Miskit have been named as party defendants merely because they are officers of Summerland, Inc. Officers of a corporation, however, do not incur personal liability for its torts merely because of their official position. Inasmuch as there is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor any evidence that Summerland served as their alter ego, they are entitled to summary judgment on all of the plaintiff’s claims.”
[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the “health, comfort and safety of campers.” As co-directors of Camp KenWood, the Miskits [*7] are alleged to have breached this duty.1 The documentary evidence submitted by the plaintiff creates a genuine issue of material fact about whether, in fact, the Miskits breached their duty. ” [HN6] Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
1 In paragraph thirty-one of the third count the plaintiffs allege that David and Sharon Miskit breached their duty of care to Hunter through their negligence, in that:
a. They failed to adequately supervise and train Summerland employees with respect to the use of mountain bicycles by campers, CPR techniques and emergency first aid skills:
b. They failed to provide adequate instruction to Camp KenWood’s campers, including Brothers, in the safety precautions necessary for mountain bicycle trips over steep [*8] and uneven terrain, including but not limited to the negotiation or avoidance of dangerous hills and curves and the adequate securing of a helmet:
c. they failed to have a policy which pre-screened and approved appropriate areas for mountain bicycle riding for campers of various ages;
d. They failed to have a policy that prohibited Camp KenWood’s employees from taking young campers on off-camp premises mountain bicycle trips that were not safe for young children.”
II. Open and Obvious
The defendants’ second basis for summary judgment is that, because the geography of Bald Hill Road was an open and obvious condition, the defendants had no duty to warn Brothers about it. The defendants argue that, as a matter of law, the court should determine that there is clear and undisputed evidence that the risk of riding a bicycle down Bald Hill Road was so open and obvious to thirteen-year-old Brothers that it would negate any duty to warn on the part of the two counselors who were supervising her. In support of that proposition the defendants have presented the court with portions of deposition transcripts and other documents. They argue that the grade and contours of Bald Hill Road were easily observable [*9] by Brothers. Also, the two counselors testified that they stopped with Brothers at the top of Bald Hill Road and told her that the hill got steeper near the bottom and that she would need to control her speed with her brakes. Based upon this discussion, the defendants argue that Brothers was actually aware of the condition of the road. The defendants have cited the court to various cases in which courts have held that dangerous conditions were open and obvious as a matter of law.
The plaintiff argues that the issue of whether the condition of Bald Hill Road is open and obvious is a genuine question of fact which cannot be decided on a motion for summary judgment. I agree. The documentary evidence about Bald Hill Road presents a genuine issue of fact as to whether the steep part of Bald Hill Road can be seen from the top of the hill. Brothers had never been on Bald Hill Road. Whether the discussion she had with the counselors at the top of the hill was sufficient to alert her to the danger is a question of fact as well.
Furthermore, unlike most of the cases cited by the defendants, this is not a premises liability case. There are nine separate allegations of negligence directed against [*10] Summerland, Inc., only one of which relates to a failure to warn. The defendants have not addressed these other allegations of negligence in the motion for summary judgment.
III. Conclusion
For the reasons given above, the motion for summary judgment is denied.
BY THE COURT,
John W. Pickard
WordPress Tags: Connecticut,statute,Camp,Director,injuries,camper,defendant,attitude,Wynne,Summerland,Conn,Super,LEXIS,Plaintiff,John,Administrator,Estate,Hunter,Brothers,Kenwood,David,Miskit,Sharon,Directors,Claims,negligence,Defenses,individuals,dangers,argument,fact,jury,Another,information,basis,decision,girl,mountain,Bald,Hill,Road,Summary,denial,judgment,bike,statutes,minors,specialists,counselors,maintenance,personnel,reputation,Commissioner,Public,Health,accordance,chapter,youth,qualifications,Regs,State,Agencies,person,turpitude,physician,narcotic,drug,Except,management,campers,appliances,framework,plaintiffs,injury,corporation,jurisdictions,Open,Obvious,rider,Part,legislature,laws,insurance,Here,coverage,Absent,protection,defendants,homeowner,assumption,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Personal,upon
Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132
Posted: August 25, 2013 Filed under: Cycling, Legal Case, Maine, Mountain Biking, Release (pre-injury contract not to sue), Uncategorized | Tags: Cycling, Lloyd, Lloyd's of London, Summary judgment, United States Cycling Federation, USA Cycling Leave a commentLloyd v. Bourassa, 2002 Me. Super. LEXIS 132
C. Gary Lloyd, Plaintiff v. Tom Bourassa, Sugarloaf Mountain Corp., and United States Cycling, Inc. d/b/a National Off-Road Bicycle Association, Defendants
Civil Action Docket No. 01-CV-039
Superior Court of Maine, Hancock County
2002 Me. Super. LEXIS 132
August 20, 2002, Decided
August 21, 2002, Filed and Entered
SUBSEQUENT HISTORY: Affirmed by, Remanded by, Sub nomine at Lloyd v. Sugarloaf Mt. Corp., 2003 ME 117, 2003 Me. LEXIS 131 (Sept. 25, 2003)
JUDGES: Ellen A. Gorman.
OPINION BY: Gorman
OPINION
ORDER
PROCEDURAL HISTORY
On June 22, 1995, C. Gary Lloyd applied for membership in “USCF . NORBA . NCCA.” After filling in some identifying information on the first page of the application form, Lloyd placed his signature on the second page, under a section entitled “Acknowledgment of Risk and Release of Liability.” That section contained the following language:
Please accept this as my application for membership and a USCF, NORBA and/or NCCA license.
I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that the United States Cycling Federation, Inc. is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement of the USCF to issue a license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge the USCF, its employees, agents, members, [*2] sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.
On August 11, 1995, with his NORBA membership in hand, Lloyd traveled to Kingfield, Maine to participate in a mountain biking event sponsored by the Sugarloaf Mountain Corporation known as the Widowmaker Challenge. At Kingfield, Lloyd signed the Official Entry Form, which included the following language under the heading of “Athlete’s Entry & Release Form 1“:
I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitations, the following: the dangers of collision with pedestrians, vehicles, other racers and fixed or moving objects; the [*3] dangers arising from surface hazards, equipment failure, inadequate safety equipment and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and…. through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . .
I agree, for myself and successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert my claim in contravention of this agreement, I or my successors shall [*4] be liable for the expenses incurred (including legal fees) incurred by the other party or parties in defending, unless the other parties are financially adjudged liable on such claim for willful and wanton negligence.
1 To avoid confusion, the “release” signed in June shall be referred to as the “Membership Release,” and the release signed in August shall be referred to as the “Event Release.”
Lloyd registered to participate in both the cross-country race and the downhill challenge. While completing a mandatory practice run on August 11, 1995, Lloyd was involved in a collision with another participant, Tom Bourassa.
On August 10, 2001, Lloyd filed suit against Bourassa, Sugarloaf Mountain Corporation, and United States Cycling Federation d/b/a National Off-Road Bicycle Association, asserting negligence claims against all three. Soon thereafter, Lloyd learned that he had failed to name the appropriate corporate defendant, and filed a motion to amend the complaint. Over objection, that motion was granted, [*5] and U.S.A. Cycling, Inc. replaced United States Cycling Federation d/b/a National Off-Road Bicycle Association.
In their Answers, both Sugarloaf and U.S.A. Cycling responded that Lloyd’s claims were barred by the releases quoted above. In addition, both asserted Counterclaims against Lloyd for breaching the terms of the releases. Both demanded Lloyd be held liable for any expenses they incurred in defending his suit.
On January 25, 2002, Lloyd filed a Motion for Judgment on the Pleadings with respect to Defendants’ Counterclaims and Affirmative Defenses of Release and Waiver. Sugarloaf Mountain Corporation opposed that motion and filed its own Motion for Summary Judgment on March 11, 2002. U.S.A. Cycling also opposed the plaintiff’s motion, and filed its Motion for Summary Judgment on April 11, 2002. All of the motions requested that the court review the language of the releases and determine whether and how it affected the outcome of this suit. A hearing on all three motions was held on July 3, 2002. Any findings included below are based upon the properly submitted affidavits and statements of material fact. Specifically excluded from that category is the affidavit form Attorney [*6] Greif.
DISCUSSION
1. Plaintiff’s Motion for Judgment on the Pleadings
The plaintiff argues that he is entitled to judgment on the defendants’ counterclaims and on their affirmative defenses of release and waiver because “the release, 2” by its terms, does not apply to U.S.A. Cycling, does not apply to the facts of this case, does not protect the defendants from their own negligence, and is unenforceable as contrary to public policy.
2 Plaintiff did not address the language of the Membership Release in his motion.
In considering a motion for judgment on the pleadings, the court is required to accept all of the responding party’s pleadings as true, and draw all reasonable inferences in its favor. Judgment is only appropriate if the responding party can prove no set of facts that would entitle it to relief. The plaintiff has failed to meet that burden.
Applicability to U.S.A. Cycling
In support of his first assertion, Lloyd argued that, because the Event Release does not mention U.S.A. Cycling, [*7] that defendant is not within the category of potentially released entities. With its response to this motion, U.S.A. Cycling filed an affidavit by Barton Enoch to establish that NORBA, a named sponsor of the Widowmaker, was the off-road division of U.S.A. Cycling, Inc. The clear language of the Entry Release covers sponsors, including U.S.A. Cycling d/b/a NORBA.
As mentioned above, Lloyd applied for membership in the United States Cycling Federation (USCF) and NORBA in June 1995. Soon thereafter, USCF merged into a new corporation, U.S.A. Cycling, Inc, that assumed all of its rights and responsibilities. By signing the Membership Release, Lloyd released U.S.A. Cycling, Inc. from responsibility for any accidents that might occur during his participation in any race events it sponsored.
Definition of Event
Lloyd has argued that the strictly construed language of the Event Release does not cover accidents that occur during the training run. In support of this argument, he has cited Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979.) In that case, the Law Court said “releases absolving a defendant of liability for his own negligence must expressly spell out [*8] ‘with the greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” Doyle, at 1208. Contrary to the plaintiff’s assertions, the language of the Event Release does precisely that:
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and properties . . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . . (emphasis added)
All parties have agreed that the training run was a mandatory part of the event. To interpret the Event Release in such a convoluted fashion that it excludes a mandatory part of the [*9] event from the term “event” defies logic and is contrary to the intent of the parties as demonstrated by the plain language of the release. Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368.
Public Policy
Although releases of liability are “traditionally disfavored,” in Maine that disfavor has resulted in strict interpretation rather than prohibition. Doyle v. Bowdoin College, Id. The cases cited by plaintiff in support of his contrary argument are from other jurisdictions and do not accurately describe the law in Maine. When asked to consider the issue raised here, both Maine state courts and the First Circuit have consistently enforced the language of releases. See, e.g., Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368; McGuire v. Sunday River Skiway Corp., 1994 WL 505035 (D.Me.)(Hornby, J.), aff’d 47 F.3d 1156 (1st Cir. 1995). Despite his reference to a “contract of adhesion,” Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result [*10] of that choice.
For the reasons stated above, plaintiff’s motion for judgment on the pleadings is denied.
2. Defendants’ Motions for Summary Judgment
The Law Court has addressed motions for summary judgment on many occasions:
In reviewing a summary judgment, we examine the evidence in the light most favorable to the nonprevailing party to determine whether the record supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law. (citation omitted) In testing the propriety of a summary judgment, we accept as true the uncontroverted facts properly appearing in the record. (citation omitted)
Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, P5, 711 A.2d 842, 844. The issue is not whether there are any disputes of fact, but whether any of the disputes involve a “genuine” issue of “material” fact. See Rule 56(c). After reviewing the record provided with these standards in mind, the court must conclude that there are no genuine issues of disputed fact.
Both Lloyd and the defendants agree that Lloyd was required to complete a practice run in order to participate [*11] in the Widowmaker Challenge. All of them agree that Lloyd signed both releases before he took that mandatory run, and all agree that he was involved in a collision with another bicyclist during that run. As was discussed above, the practice run and any problems encountered during it are covered by the terms of the releases Lloyd signed. The Membership Release contains express language releasing claims arising from negligence. The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.
Lloyd has failed to refer to any evidence in the record that might support his theory that that the Event Release should be seen as a substitution or novation of the Membership Release. Without such evidence, the court may not presume that the parties intended that one contract be substituted for the other.
Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, [*12] no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence. That exception is inapplicable in this jurisdiction. In addition, that language refers only to the portion of the Release that discusses the defendants’ right to recover expenses, including legal fees. On the record presented, there are no material issues of disputed fact concerning the language of the releases.
U.S.A. Cycling was a sponsor and Sugarloaf was a promoter of the race. As a matter of law, the court finds that the mandatory practice run was included within the language of the Releases, that the releases are clear and unambiguous, and that the accident Lloyd claims falls entirely within the types of harms contemplated by the parties at the time the releases were signed. There is nothing left to be litigated on either plaintiff’s Complaint against defendants U.S.A. Cycling and Sugarloaf, or on their Counterclaims against him.
For the reasons stated above, the court finds that the releases signed by Lloyd individually and collectively bar any civil action against either U.S.A. Cycling, d/b/a NORBA or against Sugarloaf for [*13] the injuries Lloyd allegedly sustained on August 11, 1995. Summary judgment on plaintiff’s Complaint is granted to U.S.A. Cycling, d/b/a NORBA and to Sugarloaf. In addition, summary judgment against Lloyd on their Counterclaims is granted to both U.S.A. Cycling, d/b/a NORBA and. Within thirty (30) days, counsel for these defendants shall submit proof of expenses, including attorney fees, incurred in defense of this action.
ORDER
Plaintiff’s motion for judgment on the pleadings is denied. The motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf are granted. Judgment is granted to those defendants on Counts II and III of plaintiff’s amended complaint.
DOCKET ENTRY
The Clerk is directed to incorporate this Order in the docket by reference, in accordance with M.R.Civ.P. 79(a).
DATED: 20 August 2002
Ellen A. Gorman
WordPress Tags: Lloyd,Bourassa,Super,LEXIS,Gary,Plaintiff,Sugarloaf,Mountain,Corp,States,National,Road,Bicycle,Association,Defendants,Civil,Action,Docket,Superior,Court,Maine,Hancock,August,SUBSEQUENT,HISTORY,Sept,JUDGES,Ellen,Gorman,OPINION,ORDER,PROCEDURAL,June,membership,USCF,NORBA,NCCA,information,signature,Acknowledgment,Risk,Release,Federation,corporation,efforts,agreement,heirs,employees,agents,promoters,cost,expense,person,negligence,omission,connection,sponsorship,execution,event,rider,team,member,spectator,Kingfield,Widowmaker,Challenge,Official,Entry,Form,Athlete,dangers,participation,example,limitations,collision,pedestrians,vehicles,racers,equipment,failure,trauma,injury,competition,executors,administrators,successors,promoter,owners,enforcement,agencies,entities,districts,events,representations,recitals,contravention,participant,Soon,defendant,complaint,Over,objection,Answers,addition,Counterclaims,Both,January,Motion,Judgment,Pleadings,Affirmative,Defenses,Waiver,Summary,March,April,outcome,findings,affidavits,statements,fact,category,affidavit,Attorney,Greif,DISCUSSION,policy,inferences,relief,assertion,response,Barton,Enoch,accidents,Definition,argument,Doyle,Bowdoin,College,intention,Contrary,assertions,properties,emphasis,logic,Hardy,Clair,Public,Although,interpretation,prohibition,jurisdictions,Circuit,McGuire,River,Skiway,Hornby,Despite,reference,adhesion,Motions,conclusion,citation,Champagne,Rule,accident,theory,substitution,exception,tort,jury,jurisdiction,Releases,injuries,Within,Counts,Clerk,accordance,hereby,hereinafter,three,whether
Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Posted: August 25, 2013 Filed under: Legal Case, Minors, Youth, Children, North Carolina, Release (pre-injury contract not to sue) | Tags: Camp Lejeune, Federal Tort Claims Act, LOUISE W. FLANAGAN, Marine, Marine Corps Base Camp Lejeune, United States, United States Marine Corps 1 CommentKelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Morgan Kelly; Pamela Kelly; and Terry Kelly, Plaintiffs, v. United States of America, Defendant.
NO. 7:10-CV-172-FL
United States District Court for the Eastern District of North Carolina, Southern Division
2011 U.S. Dist. LEXIS 89741
August 10, 2011, Decided
August 11, 2011, Filed
COUNSEL: [*1] For Morgan Kelly, Pamela Kelly, Terry Kelly, Plaintiffs: Steven Michael Stancliff, LEAD ATTORNEY, James L. Chapman, IV, Crenshaw, Ware and Martin, P.L.C., Norfolk, VA.
For UNITED STATES OF AMERICA, Defendant: R. A. Renfer, Jr., W. Ellis Boyle, LEAD ATTORNEYS, U. S. Attorney’s Office, Raleigh, NC.
JUDGES: LOUISE W. FLANAGAN, Chief United States District Judge.
OPINION BY: LOUISE W. FLANAGAN
OPINION
ORDER
This matter comes before the court on plaintiffs’ motion to strike affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f), or in the alternative, for partial judgment pursuant to Federal Rule of Civil Procedure 12(c) (DE # 20). Plaintiffs’ motion has been fully briefed. Also before the court is the parties’ joint request for hearing on the motion (DE # 24). For the reasons that follow, plaintiffs’ motion to strike is allowed in part and denied in part. The companion joint motion for hearing is denied.
STATEMENT OF THE CASE
This is an action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. (“FTCA”), to recover damages for injuries allegedly suffered by Morgan Kelly, a minor, at United States Marine Corps Base Camp Lejeune (“Camp Lejeuene”). Morgan Kelly’s parents, Pamela Kelly and Terry [*2] Kelly, join their daughter as plaintiffs in this action.
Plaintiffs filed complaint on September 2, 2010. The government filed answer on December 29, 2010, stating several affirmative defenses. The court conducted a telephonic scheduling conference on February 23, 2011, and afterward entered a preliminary case management order providing for an initial period of written discovery to be completed by April 1, 2011, and for all Rule 12 motions to be filed by May 15, 2011. Further discovery in the case was stayed pending resolution of any motions pursuant to Rule 12.
On May 15, 2011, plaintiffs filed the instant motion to strike the government’s affirmative defenses pursuant to Rule 12(f), or in the alternative, for partial judgment pursuant to Rule 12(c). The motion has been fully briefed. On July 1, 2011, the parties filed joint request for hearing on the motion. On July 6, 2011, the government filed motion for judgment on the pleadings pursuant to Rule 12(c). Plaintiffs were granted an extension of time to respond, and that Rule 12 motion is not yet ripe.
STATEMENT OF THE UNDISPUTED FACTS
In July, 2007, Morgan Kelly, then a fifteen-year-old high school student, was a cadet in the Navy Junior [*3] Reserve Officer Training Corps (“NJROTC”) program at her high school. As part of the program, she voluntarily attended an orientation visit to Camp Lejeune. The United States Marines Corps (“the Marines”) required all NJROTC cadets attending the orientation visit to sign a waiver, which was drafted by the Marines, before being allowed to enter Camp Lejeune. 1 The Marines also required the parent or guardian of any cadet who was a minor to sign the waiver. Morgan Kelly and her mother, Pamela Kelly, both signed the waiver, which is dated July 20, 2007.
1 The waiver is entitled “Waiver of Liability and Assumption of Risk Agreement United States Marine Corps” and states that the individual promises to waive all rights and claims for damages and any other actions arising out of participation in the event, or use of any Marine Corps base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with such participation. (Pls.’ Mot., Ex. 1). The waiver further stipulates that the individual assumes the risks involved in the activities and agrees to hold the government harmless for any resulting injury. Id.
The NJROTC group arrived at Camp Lejeune on July 23, 2007. On [*4] July 25, 2007, Morgan Kelly participated in scheduled training activities at the confidence course. On the last obstacle, called the “Slide for Life” (“SFL”), Morgan Kelly fell as she was climbing and suffered unspecified but allegedly serious injuries. Plaintiffs now seek damages in excess of ten million dollars ($10,000,000.00).
DISCUSSION
A. Joint Request for Hearing
Counsel for the parties have suggested to the court that, due to the complexity of the matters at issue in plaintiffs’ motion, oral argument would aid the court in its determination of the motion. On this basis, the parties jointly request a hearing on the motion. [HN1] Local Civil Rule 7.1(i) provides that hearings on motions may be ordered by the court in its discretion, but that motions shall be determined without a hearing unless the court orders otherwise. The court is sensitive to counsel’s request, however, hearing is not necessary on this thoroughly briefed motion. Counsel have been quite articulate in their respective written presentations. Accordingly, the parties’ request for hearing on plaintiffs’ motion is denied. The court turns its attention below to the underlying motion.
B. Motion to Strike or for Judgment on the [*5] Pleadings
1. Standard of Review
Plaintiffs have moved, pursuant to Rule 12(f), to strike the government’s fourth and seventh affirmative defenses. 2 [HN2] Rule 12(f) permits a district court, on motion of a party or on its own initiative, to strike from a pleading an “insufficient defense.” Fed.R.Civ.P. 12(f). “A defense is insufficient if it is clearly invalid as a matter of law.” Spell v. McDaniel, 591 F.Supp. 1090, 1112 (E.D.N.C. 1984). “Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.” Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal citations omitted). Therefore, motions to strike are rather strictly considered, see Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 547 (E.D.N.C. 2005), and the court is required to “view the pleading under attack in a light most favorable to the pleader.” Racick v. Dominion Law Associates, 270 F.R.D. 228, 232 (E.D.N.C. 2010). “Nevertheless, a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action [*6] can and should be deleted.” Waste Management, 252 F.3d at 347 (internal citations omitted).
2 As noted above, plaintiffs move in the alternative for partial judgment pursuant to Rule 12(c). The court, however, will examine the arguments through the lens of Rule 12(f), because [HN3] “a Rule 12(f) motion to strike is more fitting for situations, such as the one at bar, where a plaintiff challenges only some of the defenses raised in a defendant’s pleading.” Bradshaw v. Hilco Receivables, LLC, 725 F.Supp.2d 532, 534 (D.Md. 2010) (noting that “Rule 12(f) serves as a pruning device to eliminate objectionable matter from an opponent’s pleadings and, unlike the Rule 12(c) procedure, is not directed at gaining a final judgment on the merits”).
2. Analysis
Plaintiffs move to strike the government’s fourth affirmative defense, which asserts that the court lacks subject matter jurisdiction to hear plaintiffs’ claims pursuant to [HN4] the Feres doctrine, which provides the government with immunity from tort claims advanced by armed services personnel. See Feres v. U.S., 340 U.S. 135, 146, 71 S. Ct. 153, 95 L. Ed. 152 (1950). It is undisputed that Morgan Kelly has never been a member of the armed forces. Pls.’ Mot., at 5; Govt’s Resp. in Opp’n, [*7] at 1 n. 1. Therefore, as the government concedes, it is not entitled to defend on the basis of the Feres doctrine. 3 Because the fourth affirmative defense does not constitute a valid defense to the action under the facts alleged, see Waste Management, 252 F.3d at 347, plaintiffs’ motion to strike in this part is granted. The government’s fourth affirmative defense is stricken from its answer.
3 The government also informs that it has abandoned this defense. Govt’s Resp. in Opp’n, at 1 n. 1.
Plaintiffs also move to strike the government’s seventh affirmative defense. At issue is whether, under North Carolina law, 4 the liability waiver signed by the minor, Morgan Kelly, on her own behalf, and also by Pamela Kelly on the minor’s behalf, is enforceable. It is well-established [HN5] under North Carolina law that liability waivers are generally enforceable. See Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396, 397 (1955) (“[A] person may effectively bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty.”). North Carolina courts strictly construe the terms of exculpatory agreements against the parties seeking to enforce them. Id. Nevertheless, [*8] courts will enforce such contracts unless the contract (1) is violative of a statute; (2) is gained through inequality of bargaining power; or (3) is contrary to a substantial public interest. Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162 (4th Cir. 1998) (unpublished table decision); see also Strawbridge v. Sugar Mountain Resort, Inc., 320 F.Supp.2d 425, 432 (W.D.N.C. 2004).
4 [HN6] Under the FTCA, the government is liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. In such actions, “federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred.” Myrick v. U.S., 723 F.2d 1158, 1159 (4th Cir. 1983). Because the alleged act or omission giving rise to the action occurred in North Carolina, North Carolina law governs the nature and extent of the government’s liability for plaintiffs’ injuries. The parties further agree that North Carolina law governs the interpretation and enforceability of the waiver. Pls.’ Mot., at 8-9, Govt’s Resp. in Opp’n, at 2, n. 2.
Although liability waivers are generally enforceable, it is beyond dispute that Morgan Kelly’s own waiver [*9] is unenforceable. [HN7] Under North Carolina law, the contract of a minor generally is not binding on him. See Baker v. Adidas America, Inc., 335 Fed.App’x. 356, 359 (4th Cir. 2009); see also Creech ex rel. Creech v. Melnik, 147 N.C. App. 471, 475, 556 S.E.2d 587, 590 (2001) (citing Freeman v. Bridger, 49 N.C. 1 (1956)). The rule is based on the theory that minors do not have contractual capacity. Nationwide Mut. Ins. Co. v. Chantos, 293 N.C. 431, 443, 238 S.E.2d 597, 605 (1977). “[B]ecause a minor lacks legal capacity there cannot be a valid contract in most transactions, unless it is for necessaries or the statutes make the contract valid.” Creech, 147 N.C. App. at 477, 238 S.E.2d at 591. Accordingly, contracts entered into by a minor, except those for necessities or authorized by statute, are voidable at the election of the minor, and may be disaffirmed. Id. (citing Jackson v. Beard, 162 N.C. 105, 78 S.E. 6 (1913)). Having disaffirmed the waiver by filing complaint, Morgan Kelly’s own contract purporting to waive her personal injury claims is not enforceable. Therefore, the seventh affirmative defense, to the extent it reaches the actions of minor plaintiff Morgan Kelly, is clearly invalid [*10] as a matter of law and therefore insufficient. See Spell, 591 F.Supp. at 1112. For this reason, the court allows plaintiff’s motion to strike the seventh affirmative defense as it pertains to any waiver by Morgan Kelly.
The question now turns on whether, under North Carolina law, a liability waiver signed by a parent on behalf of a minor child 5 is enforceable, or whether such a waiver is unenforceable as contrary to a substantial public interest under the third Waggoner factor. 6 The parties agree that there is no controlling precedent, and the court similarly is unaware of any. The court therefore must forecast how the North Carolina Supreme Court would rule on the question. See Liberty Mut. Ins. Co. v. Triangle Indus., 957 F.2d 1153, 1156 (4th Cir. 1992) (holding that [HN8] where state law is unclear, federal courts must predict the decision of the state’s highest court). Because no North Carolina case or statute directly addresses the issue, the court turns to the law of other jurisdictions for persuasive guidance. Each party relies on a series of decisions from other jurisdictions that fall on either side of the issue. The cases indicate the difficulty in reaching the proper balance [*11] between the important interests and policies at stake.
5 In North Carolina, a minor is defined as any person who has not reached the age of eighteen (18) years. N.C. Gen. Stat. 48A-2.
6 Plaintiffs also argue that the liability waiver is unenforceable under the first two prongs of the Waggoner analysis. Plaintiffs first assert that enforcement of the waiver would violate a statute. However, they point to no specific statute that would be violated by enforcement of the waiver, relying instead on legislative history reciting the purposes of the NJROTC program. The court is unwilling to find that the waiver is violative of statute on this basis, where plaintiffs can offer no statute in clear support of their argument.
Plaintiffs also claim that the waiver was obtained through inequality of bargaining power because plaintiffs were not free to negotiate different terms. In Waggoner, plaintiff rented a jet ski from defendant, signed a liability waiver as part of the rental agreement, and was injured while using the rented equipment. The Fourth Circuit rejected plaintiff’s argument that the waiver was obtained through inequality of bargaining power, reasoning that “[i]t is true that Waggoner could [*12] not negotiate the terms of the contract, but either had to sign the exculpatory clause or decline to rent the jet ski; however, this supposed inequality of bargaining power . . . is more apparent than real. It is not different from that which exists in any other case in which a potential seller is the only supplier of the particular article or service desired. [HN9] Only where it is necessary for [the plaintiff] to enter into the contract to obtain something of importance to him which for all practical purposes is not obtainable elsewhere will unequal bargaining power void an exculpatory clause.” Waggoner, 141 F.3d at 1162. In this case as well, the supposed inequality of bargaining power is more apparent than real, where Morgan Kelly was free to forego participation in the voluntary program. The court therefore declines to find the waiver unenforceable based on the second Waggoner factor.
As plaintiffs correctly note, [HN10] the majority rule in the United States is that parents may not bind their children to pre-injury liability waivers by signing the waivers on their children’s behalf. See Galloway v. State, 790 N.W.2d 252, 256 (Iowa 2010) (listing cases and concluding that “the majority of state [*13] courts who have examined the issue . . . have concluded public policy precludes enforcement of a parent’s pre-injury waiver of her child’s cause of action for injuries caused by negligence“); see also Kirton v. Fields, 997 So.2d 349, 356 (Fla. 2003) (listing cases, and stating that “[i]n holding that pre-injury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions”).
[HN11] Many of the states holding that parents cannot bind children to pre-injury releases have reached that conclusion by relying on legal principles that also are recognized in North Carolina. For example, in many states, a parent may not bind a minor child to a post-injury settlement agreement releasing tort claims without court approval. See Galloway, 790 N.W.2d at 257 (noting that, under Iowa law, parents may not compromise and settle a minor child’s tort claim without court approval, and that therefore it would not make sense to permit a parent to prospectively release a child’s cause of action); see also J.T. ex rel. Thode v. Monster Mountain, LLC, 754 F.Supp.2d 1323, 1328 (M.D. Ala. 2010) (observing [*14] that under Alabama law, a parent may not bind a child to a settlement without court approval); see also Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 494, 834 P.2d 6, 11-12 (1992) (concluding that since, under Washington law, “a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury”).
Similarly, under North Carolina law, a parent cannot bind his minor child by settling a tort claim and executing a release of liability on the minor’s behalf. Sell v. Hotchkiss, 264 N.C. 185, 191, 141 S.E.2d 259, 264 (1965). “The settlement of an infant’s tort claim becomes effective and binding upon him only upon judicial examination and adjudication.” Id. Indeed, “failure to present proof of court approval of a [settlement] contract on behalf of a minor is fatal at any stage of a proceeding seeking to enforce such a contract.” Creech, 147 N.C. App. at 475, 556 S.E.2d at 590. It seems, therefore, that the North Carolina Supreme Court would join those other state courts listed above in holding that, in general, a parent may not bind a child to a pre-injury [*15] liability waiver by signing the liability waiver on the child’s behalf.
[HN12] Although the majority rule is that parents may not bind their children to pre-injury liability waivers, many states recognize an exception where the liability waiver is in the context of non-profit activities sponsored by schools, volunteers, or community organizations. See Monster Mountain, 754 F.Supp.2d at 1327 (noting that “the only published decisions from other jurisdictions that have bound children to pre-injury releases executed by a parent or guardian on the child’s behalf have done so in the context of a minor’s participation in school-run or community-sponsored activities”). 7 For example, courts have upheld liability waivers in the context of school-sponsored fundraising events, high school athletic programs, municipal athletic programs, and voluntary extracurricular programs. See Gonzalez v. City of Coral Gables, 871 So.2d 1067, 1067-68 (Fla. Dist. Ct. App. 2004); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 747 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201 (1998); Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal. Rptr. 647 (1990).
7 Indeed, [HN13] where the liability [*16] waiver is in the context of a for-profit activity, it is almost certainly unenforceable. See Monster Mountain, 754 F.Supp.2d at 1327 (stating that “this court is not aware of a single case, that has not been overturned, that has held these clauses to be binding in the context of a for-profit activity”). The many cases cited by plaintiffs overwhelmingly demonstrate the tendency of courts to strike down exculpatory agreements in the context of a commercial activity. See, e.g., Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 634 N.E.2d 411, 199 Ill. Dec. 572 (1994) (horseback riding lessons); Paz v. Life Time Fitness, Inc., 757 F. Supp.2d 658 (S.D. Tex. 2010) (fitness center); Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621 (S.D.W.Va. 2004) (whitewater rafting); Kirton v. Fields, 997 So.2d 349 (Fla. 2003) (motor sports park).
In Gonzalez, the parent of a fifteen-year-old high school student signed a liability waiver in order for the student to participate in a school-sponsored training program at the municipal fire station, for which she was to receive class credit. 871 So.2d 1067. In holding that the waiver was enforceable, the court concluded that the program fell “within the [*17] category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Id. Also in the context of school-sponsored extracurricular activities, a California state court and a Massachusetts state court each upheld liability waivers executed in conjunction with high school fundraising events and high school cheerleading practice, respectively. See Hohe, 224 Cal.App.3d at 1563 (noting specifically the voluntary and recreational nature of the activity, which was sponsored by plaintiff’s high school); Sharon, 437 Mass. at 107-08. Finally, apart from the school-sponsored context, the Ohio Supreme Court held that a liability waiver was enforceable in the context of a community-based recreational soccer club. Zivich, 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201. The court in that case held the waiver enforceable to bar the claim of a child who was injured on the soccer field, noting that “the [*18] public as a whole received the benefit of these exculpatory agreements [which allowed the club] to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigations.” Id. at 372..
Plaintiffs rely heavily on Galloway, wherein the Iowa Supreme Court held a liability waiver unenforceable where it was executed in the context of a high school field trip. 790 N.W.2d at 258-59. In declining to adopt the exception described above, the court noted that the policy concerns justifying the exception were “speculative and overstated,” finding that “the strong public policy favoring the protection of children’s legal rights must prevail over speculative fears about their continuing access to activities.” Id. at 259. This case, however, appears to be an outlier, as the exception is well-established by the majority of state court cases that have discussed the issue, as discussed above.
The court is persuaded by the analysis of those courts that have upheld such waivers in the context of litigation filed against schools, municipalities, or clubs providing activities for children, and concludes that, if faced with the issue, the North Carolina Supreme Court would [*19] similarly uphold a preinjury release executed by a parent on behalf of a minor child in this context.
Applying these principles to the case now at bar, the court observes that the activity at issue here was not commercial in nature, unlike those at issue in Meyer, Paz, Johnson, and Kirton, among others cited by plaintiffs. Here, it is undisputed that the liability waiver was executed on behalf of a fifteen-year-old high school student by her mother in conjunction with the student’s participation in a school-sponsored activity. The facts, therefore, are very similar to those in Gonzalez. As in that case, the court concludes that the activity falls “within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Gonzalez, 871 So.2d 1067.
Here, the liability waiver was executed so that Morgan Kelly could participate in a school-sponsored enrichment program that was extracurricular and voluntary. On these facts, the court anticipates that the North Carolina Supreme Court would hold the liability waiver enforceable under the exception for non-commercial [*20] or community-based activities. Therefore, the seventh affirmative defense is not “clearly invalid as a matter of law” as it relates to a waiver of claims by Pamela Kelly, and therefore is not an insufficient defense. See Spell, 591 F.Supp. at 1112. As such, plaintiff’s motion to strike the seventh affirmative defense must be and is denied as to that issue. 8
8 Plaintiffs argue in the alternative that even if the waiver is enforceable to bar Morgan Kelly’s claims, it is not enforceable against the claims of her parents. Plaintiffs argue that “the text of the waiver form envisions an agreement only between the United States and the minor participant.” Pls.’ Mot., at 13. In support, plaintiffs point to language of the waiver which, they claim, emphasizes Morgan Kelly over her parents. For example, the contract refers to “my participation [in the training program]” and the provision that “should I decline to execute this agreement, I will not be permitted to attend the organized event.” Pls.’ Mot., at 13-14. However, the waiver clearly states that “I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, [*21] legal representatives and any other persons on my behalf, any and all rights and claims for damages” arising out of “my participation in the activities comprising the aforesaid event.” As such, the waiver’s plain language extends not only to Morgan Kelly’s claims but those of her parents as well.
CONCLUSION
For the foregoing reasons, the parties’ joint request for hearing (DE # 24) is DENIED. Plaintiffs’ motion to strike affirmative defenses (DE # 20) is ALLOWED as to the fourth affirmative defense. As to the seventh affirmative defense, plaintiffs’ motion to strike is ALLOWED as to the minor’s waiver of her own claims. Attempted defense on this basis is not supported under law. Affirmative defense persists however, at to the mother’s waiver of the minor’s claims. As discussed at length above, plaintiffs’ motion to strike is DENIED in this remaining part.
SO ORDERED, this the 10th day of August, 2011.
/s/ Louise W. Flanagan
LOUISE W. FLANAGAN
Chief United States District Judge
WordPress Tags: States,America,Dist,LEXIS,Morgan,Pamela,Terry,Plaintiffs,Defendant,District,Court,Eastern,North,Carolina,Southern,Division,August,COUNSEL,Steven,Michael,Stancliff,LEAD,ATTORNEY,James,Chapman,Crenshaw,Ware,Martin,Norfolk,Renfer,Ellis,Boyle,ATTORNEYS,Office,Raleigh,JUDGES,LOUISE,FLANAGAN,Chief,Judge,OPINION,ORDER,Federal,Rule,Civil,Procedure,judgment,Also,companion,STATEMENT,CASE,action,Tort,Claims,FTCA,injuries,Marine,Corps,Base,Camp,Lejeune,Lejeuene,parents,daughter,complaint,September,government,December,conference,February,management,discovery,April,Further,extension,FACTS,student,cadet,Navy,Junior,Reserve,Officer,NJROTC,Marines,cadets,waiver,guardian,Assumption,Risk,Agreement,participation,event,equipment,facilities,conjunction,injury,confidence,obstacle,Slide,Life,million,dollars,DISCUSSION,Joint,Request,argument,determination,basis,Local,hearings,discretion,presentations,attention,Motion,Strike,Pleadings,Standard,Review,fourth,initiative,Spell,McDaniel,Supp,tactic,Waste,Holdings,citations,Godfredson,Legal,Group,Racick,Dominion,Associates,arguments,situations,plaintiff,Bradshaw,Hilco,Receivables,device,opponent,Analysis,jurisdiction,Feres,doctrine,personnel,member,Govt,Resp,waivers,Hall,Sinclair,person,negligence,performance,agreements,statute,Waggoner,Nags,Head,Water,Sports,decision,Strawbridge,Sugar,Mountain,Resort,Under,manner,extent,omission,Myrick,interpretation,Although,Baker,Adidas,Creech,Melnik,Freeman,Bridger,theory,minors,Nationwide,Chantos,transactions,statutes,necessities,election,Jackson,Beard,factor,precedent,Supreme,Triangle,Indus,jurisdictions,guidance,series,decisions,policies,Stat,prongs,enforcement,history,purposes,rental,Circuit,clause,seller,supplier,article,importance,Galloway,State,Iowa,policy,Kirton,Fields,Many,conclusion,example,settlement,approval,Thode,Monster,Alabama,Scott,Pacific,West,Wash,Washington,Sell,Hotchkiss,infant,examination,adjudication,failure,exception,context,events,Gonzalez,Coral,Gables,Sharon,Newton,Mass,Zivich,Mentor,Soccer,Club,Ohio,Hohe,Diego,Rptr,clauses,tendency,Meyer,Naperville,lessons,Time,Johnson,River,Scenic,Whitewater,Tours,park,category,litigation,California,Massachusetts,recreation,litigations,protection,municipalities,Here,enrichment,text,participant,provision,guardians,heirs,executor,administrators,Affirmative,length,pursuant,seventh,whether,behalf,enforceable,exculpatory,violative,unenforceable,upon
Osborn v. Cascade Mountain, Inc 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1
Posted: August 25, 2013 Filed under: Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Wisconsin Leave a commentOsborn v. Cascade Mountain, Inc 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1
2002 Wisc. App. LEXIS 1216,*;2003 WI App 1;
259 Wis. 2d 481;655 N.W.2d 546
Amanda Osborn, Joan Osborn, and Richard Osborn, Plaintiffs-Appellants, Unity Health Plans and Wisconsin Physicians Service Insurance Corp., Subrogated-Plaintiffs, v. Cascade Mountain, Inc. and American Home Assurance Company, Defendants-Respondents.
Appeal No. 01-3461
Court of Appeals of Wisconsin, District Four
2003 WI App 1;259 Wis. 2d 481;655 N.W.2d 546;2002 Wisc. App. LEXIS 1216
November 7, 2002, Decided
November 7, 2002, Filed
Notice: [*1] Pursuant to Wis. Stat. Rule 809.23(3) of appellate procedure, an unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority except to support a claim of Res Judicata, Collateral Estoppel or law of the case.
Prior History: Appeal from a judgment of the circuit court for Columbia County: James O. Miller, Judge. Cir. Ct. No. 99-CV-252.
Disposition: Affirmed.
Judges: Before Vergeront, P.J., Dykman and Deininger, JJ.
Opinion: P1. Per Curiam. Amanda Osborn and her parents, Joan and Richard Osborn, appeal from a summary judgment dismissing their personal injury action against Cascade Mountain, Inc., and its insurer. The Osborns sued for injuries Amanda, then age twelve, received while skiing at Cascade Mountain. The dispositive issue is whether the Osborns’ claim is subject to an enforceable release of liability agreement signed by Joan Osborn. We conclude that it is, and therefore affirm.
P2. The Osborns allege that a defective ski-boot-binding system, on ski equipment rented from Cascade Mountain, caused the injury to Amanda. However, before Amanda’s ski trip, Joan signed a document entitled “Rental Permission Agreement and Release of Liability.” That document provided:
I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the [*2] use of this ski equipment involve a risk of injury to any and all parts of my child’s body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.
I understand that the ski equipment being furnished forms a part of or all of a ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my child’s safety or freedom from injury while skiing. I further agree and understand that this ski-boot-binding system may reduce but does not eliminate the risk of injuries to the bottom one-third of my child’s lower leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my child’s knee or any other part of my child’s body.
I agree that I will release Cascade Mountain from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any other person. I agree NOT to make a claim against or sue Cascade Mountain for injuries or damages [*3] relating to skiing and/or the use of this equipment. I agree to release Cascade Mountain from any such responsibility, whether it results from the use of this equipment by the user, or whether it arises from any NEGLIGENCE or other liability arising out of the maintenance, selection, mounting or adjustment of this ski equipment.
…
I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between my child, myself and Cascade Mountain and I sign it of my own free will.
P3. Amanda fell twice while skiing. Amanda had signed a second release agreement similar to the one previously signed by her mother. The second fall caused her injuries.
P4. Cascade Mountain moved for summary judgment, alleging that the above-quoted release rendered it immune from liability. The trial court agreed and granted summary judgment. On appeal, the Osborns contend that the release is void on contract principles and public policy grounds. n1
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n1 It is recognized that a parent may waive a child’s claim, Fire Ins. Exch. v. Cincinnati Ins. Co., 2000 WI App 82, P24, 234 Wis. 2d 314, 610 N.W.2d 98, and the Osborns do not claim otherwise here.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – [*4]
P5. An exculpatory contract may be void on public policy grounds or under rules governing contracts. See Werdehoff v. General Star Indem. Co., 229 Wis. 2d 489, 499-500, 600 N.W.2d 214 (Ct. App. 1999). In either case, the issue is one of law. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996). In deciding it, we owe no deference to the trial court. See M & I First Nat’l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995).
P6. In Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994), the supreme court applied a three-part public policy test to determine the validity of a liability release: first, whether it serves two purposes, neither clearly identified nor distinguished; second, whether it is extremely broad and all-inclusive; and third, whether it is a standardized form offering little or no opportunity for negotiation or free and voluntary bargaining. “None of these factors alone would necessarily invalidate the release; however, taken together they demand the conclusion that the contract is void as against public [*5] policy.” Id.
P7. In Yauger, the court applied a two-part test: first, examining whether the release clearly, unambiguously, and unmistakably informed the signer of what was waived; and second, whether the form in its entirety alerted the signer to the nature and significance of what was being signed. Yauger, 206 Wis. 2d at 84. Here, the Osborns contend that Cascade Mountain’s liability release must be deemed void under both the Richards and the Yauger tests.
P8. Cascade Mountain’s liability release is not void under the Richards test. The release’s two purposes are clearly and unmistakably identified in its title, “Rental Permission Agreement and Release of Liability.” That clear enunciation of purpose is not remotely confusing. Second, the release is not unduly broad or all-inclusive. It expressly and unmistakably restricts itself to those using its equipment: “I agree to release Cascade Mountain from [liability], whether it results from the use of this equipment by the user, or whether it arises from any NEGLIGENCE or other liability arising out of the maintenance, selection, mounting or adjustment [*6] of this ski equipment.” (Emphasis added.) Under any reasonable view, that language does not present an overly or unduly broad and all-inclusive release of liability. Third, it cannot be said that the agreement offered little or no opportunity for negotiation or free and voluntary bargaining. The release applied only to those who rented equipment from Cascade Mountain. Amanda, or any other skier, was permitted to ski at Cascade Mountain without signing the release if the person chose to obtain equipment elsewhere.
P9. The liability release is also enforceable under the Yauger test. The release clearly, unambiguously, and unmistakably informed the Osborns that they were agreeing not to pursue a claim against Cascade Mountain for injuries resulting from the use of rented Cascade Mountain ski equipment. Second, the title of the release, if nothing else, clearly informed the Osborns of what they were signing. In Yauger, the court held a liability release void in significant part because it was titled “APPLICATION.” See Yauger, 206 Wis. 2d at 86-87. The release here, unambiguously entitled a “Release of Liability,” removed that problem. Also [*7] in Yauger, only part of the release document actually dealt with the subject of liability. See id. 206 Wis. 2d at 79. Here, virtually every sentence of the release plainly and unmistakably addresses the issues of injury and liability for injury. Again, the facts are far removed from those that persuaded the court in Yauger to declare the release void. Additionally, although the Osborns argue otherwise, the reference to “Cascade Mountain” as the released party is not ambiguous. No one reading the release form could reasonably understand it as referring to anything other than Cascade Mountain, Inc.
P10. The Osborns also contend that the release Amanda signed was not valid because she was a minor. That is true, but irrelevant. The first release, signed by Joan, remained in effect.
By the Court.-Judgment affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5 (1999-2000).
Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366
Posted: August 25, 2013 Filed under: Legal Case, Ohio, Racing, Triathlon | Tags: #race, Alum Creek State Park, Alum State Park, Division of Parks and Recreation, Inc., Lightning, ODNR, Ohio, Ohio Department of Natural Resources, Summary judgment, Triathlon, Ultrafit Usa, Volunteer Leave a commentTo Read an Analysis of this decision see
Liability of race organizer for State Park Employees?
Chapple, Et Al., v. Ultrafit USA, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366
Roger Chapple, Et Al., Plaintiffs-Appellants -vs- Ultrafit Usa, Inc., Et Al., Defendants-Appellees
Case No. 01-CAE-08037
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, DELAWARE COUNTY
2002 Ohio 1292; 2002 Ohio App. LEXIS 1366
March 18, 2002, Date of Judgment Entry
PRIOR HISTORY: [*1] CHARACTER OF PROCEEDING: Appeal from the Delaware County, Common Pleas Court, Case No. 00-CVC-06-270.
DISPOSITION: Trial court’s grant of defendants-appellees’ motion for summary judgment was affirmed.
COUNSEL: For Plaintiffs-Appellants: JOHN A. YAKLEVICH, Columbus, Ohio.
For Defendants-Appellees: MARK PETRUCCI, Columbus, Ohio.
JUDGES: Hon. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. John F. Boggins, J. Boggins, J., Farmer, P.J., and Edwards, J. concur.
OPINION BY: John F. Boggins
OPINION
Boggins, J.
This is an appeal from a Summary Judgment ruling of the Delaware County, Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
The facts underlying this case are that appellant Roger Chapple was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation (O.D.N.R.). Appellee Ultrafit, Inc. through its president, appellee Jeffrey Sheard is engaged in organizing and promoting events such as triathlons. One of these contests was set for June 28, 1998 at Alum Creek State Park. Appellees had made application to the O.D.N.R. to use the facilities, including employees of O.D.N.R. on June 28, 1998 to conduct a triathlon. Appellant signed up per O.D.N.R. procedure to work the event. John Williamson, crew leader for O.D.N.R. set the work schedule which [*2] included appellant’s duties. (Appellant’s deposition at p.14). Appellant had no contact with appellees on 6/28/98 prior to his injury. Due to severe weather, the triathlon’s starting time was delayed until about 9:30a.m. when the weather had improved. Due to the late start, the race was shortened. Near the end of the shortened event, appellant Roger Chapple was rolling a hose on an abandoned leg of the race and was struck by lightning and injured. Appellant, Joyce Chapple, spouse of Roger Chapple is joined on a loss of consortium basis. The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event. Appellees filed a Motion for Summary Judgment on April 11, 2000 which was set for a non-oral hearing with appellants memorandum in opposition filed May 8, 2000, and a reply subsequently filed. After careful consideration of all materials available to the trial court, it sustained appellee’s motion.
ASSIGNMENT OF ERROR
The sole Assignment of Error is:
I.
THE TRIAL COURT ERRED IN RENDERING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS-APPELLEES WHERE [*3] THE DEFENDANT-APPELLEES OWED A DUTY OF CARE TO PLAINTIFFS-APPELLANTS AND GENUINE ISSUES OF FACT EXISTED CONCERNING DEFENDANTS-APPELLEES’ BREACH OF THAT DUTY.
SUMMARY JUDGMENTS
Civ.R. 56(C) states, in pertinent part:
[HN1] Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law…. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.
[HN2] Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. [HN3] In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue [*4] to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, citing Celotex v. Catrett (1986), 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. [HN4] Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 36, 506 N.E.2d 212. I. As to the Assignment of Error, even though appellants’ Complaint asserts negligence, gross negligence and wanton and wilful misconduct but his Brief relies solely on negligence. (Appellant’s brief at p. 8). Appellant acknowledges that no Ohio case strictly fits the fact pattern in the case sub judice. Other than the cases citing basic propositions of negligence law, none of the cases cited by either party to this appeal are particularly in point, therefore we must, as the trial court did, review the facts which would support or refute the decision from which the appeal is taken. The deposition of appellant, Roger Chapple, indicates that the weather had cleared by the delayed starting time and that [*5] lightning flashes were to the north of the park. (Appellant’s deposition at p. 26). In the reply brief appellant’s counsel attempts to blame a memory loss for the inability of Roger Chapple to remember that lightning was flashing in his vicinity prior to being struck. (Appellant’s reply brief at p. 2). This conclusion is not supported by appellant’s deposition which demonstrates a clear memory except for short term loss. (Appellant’s deposition at p. 46). The essential issue is whether alleged facts were presented to the trial court indicating a breach of duty of appellees to appellants. [HN5] The existence of a duty is an essential element of negligence action. Grover v. Eli Lilly and Company (1992), 63 Ohio St. 3d 756, 591 N.E.2d 696. [HN6] The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Simmers v. Bentley Construction Co. (1992), 64 Ohio St. 3d 642, 597 N.E.2d 504. Here, appellants assert that, because appellee had authority to postpone [*6] or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present. (Appellant’s deposition at p. 47). Also, if such became a concern, he believed policy dictated that he go to a vehicle. (Appellant’s deposition at p. 40-41). Appellant argues that severe electrical storm activity was present, but his deposition does not support this conclusion. Appellee has reviewed certain theories and applicable cases such as injury to subcontractors, and inherently dangerous activity. These are not applicable under the facts and the appellant being a subcontractor has not been argued. The only aspect of appellant’s position which is close to the decisions in this line of cited cases is one of control by appellee. The control asserted is that appellant was included with the use of the facilities and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone. In this narrow regard the language of Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 113 N.E.2d 629 [*7] is pertinent even though, it is a subcontractor case. It holds that active participation by the contractor as opposed to a general supervisory role is required. The facts in the case sub judice indicate that Roger Chapple chose to work outside and felt that no danger existed. (Appellant’s deposition at p. 41-42). Roger Chapple believed that park rules provided that he wait in a vehicle if a weather danger existed, (Appellant’s deposition at p. 40-41) even though Mr. Hart disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees. It is asserted that lightning was present during the race and the affidavit of Mr. Williamson is relied on for this assertion. However, such affidavit also places the lightning to the north of the race event. It is also stated that appellees had no access to weather information. However, Mr. Sheard’s deposition indicated that amateur radio operators were at the race and would provide such data if such need arose. (Sheard deposition at p. 38). The facts which the trial court had available is that Mr. Chapple was employed by and paid by [*8] O.D.N.R. His worker’s compensation claim was filed as such rather than as a loaned employee to appellees. It is accurate, however, that [HN7] an employee may institute a third-party negligence action even though a worker’s compensation claim has been filed. George v. City of Youngstown (1942), 139 Ohio St. 591. The essence of appellant’s claim is that appellee had the authority to postpone or cancel the race and that the race was commenced under dangerous weather conditions. We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.
We therefore affirm the decision of the trial court.
By: Boggins, J. Farmer, P.J. and Edwards, J. concur.
G-YQ06K3L262
http://www.recreation-law.com
Volunteers for Outdoor Colorado
Posted: August 20, 2013 Filed under: Colorado | Tags: Colorado, Dean Winstanley, Land management, Philanthropy, September, Stewardship, Volunteering, x, y, z Leave a comment
|
This spring the 
Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Posted: August 19, 2013 Filed under: Cycling, Massachusetts, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: #race, Boys and Girls Clubs of Metrowest, Cycling, d/b/a Fiske Independent Race Management, Defendant, Fiske Independent Race Management, Gross negligence, Inc's, Inc., Massachusetts, Massachusetts. MA, Negligence, Regulations, Sports, Standards, Triathlon, USA Triathlon, Wet 'N' Wild Triathlon, William Fiske Leave a commentIf the industry says you should and calls it a standard you better
Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290 (Mass. Sup 2003)
Plaintiff: Derek A. Lautieri
Defendant: Jorun G. Bae
Third Party Defendants: defendants USA Triathlon, Inc., William Fiske d/b/a Fiske Independent Race Management, the Boys and Girls Clubs of Metrowest, Inc.
Plaintiff Claims: negligence and court added gross negligence
Defendant Defenses: Release
Holding: Holding release released defendants who could not be held to gross negligence.
This decision is from a trial court in Massachusetts. It has limited value in Massachusetts and other states.
If you have read many of these articles, you understand that releases do not bar claims for gross negligence. In this case, the release did not bar the claim for gross negligence, even when the plaintiff did not plead gross negligence.
This is a car/bike accident case during a triathlon. The plaintiff was cycling in a triathlon with several other cyclists. The defendant Bae, driver pulled out in front of the cyclists resulting in a collision. The course was not closed to traffic.
The defendant car driver brought in as third party defendants the race organizer, William Fiske d/b/a Fiske Independent Race Management (Fiske), the race charity Boys and Girls Clubs of Metrowest, Inc. (BGC) and the triathlon association sanctioning body USA Triathlon, Inc., (USTA).
The third party defendants were brought in for “contribution.” Contribution is defined in Massachusetts as:
Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom contribution is sought could have been held liable in tort.”
For the defendant, Bae to enable to enforce contribution against the third party defendants she must show that the third party defendants could be held liable at trial in tort. Any defenses available to the third party defendants against the original plaintiff will also be a defense to the contribution claim of the defendant Bae.
Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred.
Fiske was the person who put the triathlon together. Even though Fiske was operating as Fiske Independent Race Management, the court indicated that Fiske was not a corporation or company (LLC). USTA sanctioned the race, including providing liability insurance and standards, according to the court, on how the race should be run.
The defendant Bae argued that the third party defendants should be liable for failing to “a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred.”
The court determined that USTA was:
…the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.
USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.
In that position, USTA created regulations for running triathlons which the court quoted:
2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.
Fiske did not follow any of the guidelines offered by the USTA.
…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.
Summary of the case
The defense raised by the third party defendants was “release.” The plaintiff signed a release to join the USTA and receive a license. The plaintiff also signed an application which contained language similar to that of a release when she entered the race.
Under Massachusetts law, the enforceability of a release is a question (issue) of law to be decided by the court. “Massachusetts law favors the enforcement of releases.”
There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted.
Nor does the word negligence have to be found in the release. Releases, like all other states, do not bar claims of gross negligence. Neither the plaintiff nor the defendant complained of any gross negligence. The court, however, stated that even though not pled, gross negligence could be found later against Fiske. If that was the case, then the releases signed by the plaintiff did not bar the claim against Fiske. “While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.” The court found that the actions of Fiske could rise to the level of gross negligence.
The basis of that finding was Fiske did not follow the guidelines or regulations of the governing body, the USTA in running the race. “As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence.”
To some extent, the court must have thought that Fiske’s failure to follow the standards of the USTA was very egregious to raise the issue of gross negligence in the case.
The court quoted the regulations cited above as evidence that what Fiske did when ignoring the industry standards was sufficient to void the release because it raised the possibility that Fiske was grossly negligent.
…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.
The court further defined negligence and gross negligence under Massachusetts law.
Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.
Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.”
The court’s justification for not letting Fiske out of the case and for allowing the possibility of a claim for gross negligence was interesting.
While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against the third-party defendants has been made.
Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants.
The court then looked at the allegations against the USTA.
In order for Lautieri to establish that USTA owed him a duty of care at the time the accident occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” or that USTA voluntarily, or for consideration, assumed a duty of care to Lautieri. This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet.
There was no evidence that showed USTA participated or was supposed to participate in the planning, operation, supervision or running of the race. USTA did not even have a representative of USTA attend the race. Consequently, because there was no duty and USTA created no duty to the plaintiff the release barred the claims of the third party defendant.
The court’s discussion of the Boys and Girls Club was shorter.
A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members.
USTA and the Boys and Girls Club were dismissed from the lawsuit.
So Now What?
The “release” or as identified by the court, application, was extremely weak. If the release had identified the course as being an open course, not closed to cars, this might have changed the outcome of the case for Fiske. No matter, the document was too weak not to create problems rather than resolve them in this case.
However, even if the release was stronger, it might not have gotten Fiske out of the case because of the court raised allegations of gross negligence. The USTA created regulations for running a race. By requesting and receiving sanctioning for the race, Fiske knowingly or unknowingly, became burdened or bound by those regulations. The court called them standards, regulations and guidelines throughout the decision, but the simple fact is they were a noose around the third party defendant’s neck.
You cannot look at your industry and not understand the standard of care in the industry or not find and follow the guidelines the industry is creating.
These “regulations” are fairly simple and appear to be commons sense. However, they substantially increase the cost of running an event. Closing a street requires government paperwork, government employees and usually help from law enforcement. All significantly increase the cost of running the event.
However, the regulations more importantly are proof that if an industry association creates regulations, standards, guidelines or rules, they are the standard of care against which members of the same industry will be judged in court.
For more articles on how standards created by an association are used to harm association members see:
ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp
Plaintiff uses standards of ACCT to cost defendant $4.7 million
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, USA Triathlon, Inc’s, Boys and Girls Clubs of Metrowest, Inc., William Fiske, d/b/a Fiske Independent Race Management, William Fiske, Fiske Independent Race Management, cycling, Triathlon, Race, Standards, Regulations, Massachusetts. MA, Wet ‘N’ Wild Triathlon,
WordPress Tags: Industry,negligence,defendant,lawsuit,Lautieri,Mass,Super,LEXIS,Plaintiff,Derek,Jorun,Third,Defendants,Triathlon,William,Fiske,Independent,Race,Management,Boys,Girls,Clubs,Metrowest,Claims,Defenses,Release,decision,Massachusetts,bike,accident,driver,collision,organizer,association,USTA,contribution,Where,tort,injury,person,Supreme,Judicial,Court,statute,action,corporation,insurance,layout,failure,personnel,intersection,incident,requirements,organizers,road,lanes,width,feet,vehicles,Control,intersections,turnarounds,Watch,Cyclists,motorists,guidelines,Director,warnings,Summary,Under,enforcement,absence,fraud,agents,employees,interpretation,Releases,Neither,waivers,basis,definition,extent,qualification,omission,degree,vigilance,forethought,prudence,diligence,requirement,moment,Gross,magnitude,inadvertence,amounts,indifference,obligations,violation,circumspection,consequences,Ordinary,inattention,tendency,justification,judgment,theory,allegations,supervision,discussion,Club,cars,outcome,fact,noose,neck,commons,cost,event,street,government,paperwork,Standards,Expert,Camp,Report,ACCT,million,Trade,Summer,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Human,Rock,Ropes,Course,Challenge,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Regulations,Wild,wilful
Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290
Posted: August 19, 2013 Filed under: Cycling, Legal Case, Massachusetts, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: #race, Boys and Girls Clubs of Metrowest, Cycling, d/b/a Fiske Independent Race Management, Fiske Independent Race Management, Inc's, Inc., Massachusetts. MA, Regulations, Standards, Triathlon, USA Triathlon, Wet 'N' Wild Triathlon, William Fiske Leave a commentLautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290
Derek A. Lautieri v. Jorun G. Bae 1
1 The Town of Hudson was also named as a third-party defendant in the complaint. Count IV against the Town has been dismissed. Memorandum of Decision, dated June 7, 2002 (Bohn, J.).
01-4078
SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX
17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290
October 29, 2003, Decided
October 29, 2003, Filed
DISPOSITION: Third party defendants’ motions for summary judgment allowed in part and denied in part.
JUDGES: [*1] Kenneth J. Fishman, Justice of the Superior Court.
OPINION BY: Kenneth J. Fishman
OPINION
MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
INTRODUCTION
Plaintiff, Derek A. Lautieri (“Lautieri”), was injured during a triathlon held in Hudson, Massachusetts. Lautieri brought this action against the defendant/third-party plaintiff, Jorun G. Bae (“Bae”), claiming negligence for Bae’s failure to exercise reasonable care in the operation of her motor vehicle. Bae in turn brought an action against third-party defendants USA Triathlon, Inc. (“USAT”) (Count I of Third-Party Complaint), William Fiske (“Fiske”) d/b/a Fiske Independent Race Management (Count II) 2 and the Boys and Girls Clubs of Metrowest, Inc. (“B&G Clubs”) (Count III), seeking contribution in the event that the plaintiff recovers damages for his alleged injuries. 3 Specifically, Bae claims negligence on part of the third-party defendants for failure to provide a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred. This matter is before this Court on the third-party [*2] defendants’ motions for summary judgment as to all counts. For the reasons described below, the third party defendants’ motions are ALLOWED, in part, and DENIED, in part.
2 Bae’s complaint uses the spelling “Fisk” in the caption. As all the parties, including Bae, have since used the spelling “Fiske”, this Court will use the latter spelling.
3 Bae initially also claimed a duty of indemnification, but has since stipulated that no privity of contract existed between himself and any of the third-party defendants, and, therefore, that no right of indemnification exists.
BACKGROUND
On June 4, 2000, Lautieri participated in an organized triathlon, one leg of which was competitive bicycling. Bae, while operating a motor vehicle, came to the intersection of Main Street and Lewis Street in Hudson. Bae stopped, looked to her left, looked to her right, and then looked to her left again for approaching traffic. Seeing no vehicles approaching, Bae proceeded straight through the intersection. Lautieri, [*3] then approaching the intersection with four or five other bicyclists, turned to avoid Bae’s vehicle but did not have sufficient time to prevent a collision. Lautieri suffered significant injuries as a result of the accident.
On May 12, 2000, prior to the race, Lautieri completed and signed a “USA Triathlon Annual Licence Application Waiver.” That waiver contained the following language in the form duplicated below:
I acknowledge that a triathlon or bisport/duathlon event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. I HEREBY ASSUME THE RISKS OF PARTICIPATING IN TRIATHLONS OR BISPORT/DUATHLON EVENTS. I certify that I am physically fit and have sufficiently trained for participating in this event(s), and have not been advised against participating by a qualified health professional. I acknowledge that my statements in this AWRL are being accepted by the USAT in consideration for allowing me to become a member in USAT and are being relied upon by USAT and the various race sponsors, organizers and administrators in permitting me to participate in any USAT sanctioned event . . . (b) I AGREE that [*4] prior to participating in an event I will inspect the race course, facilities, equipment and areas to be used and if I believe they are unsafe I will immediately advise the person supervising the event activity or area; (c) I waive, release, AND DISCHARGE for any and all claims, losses or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft, or damage of any kid, including economic losses, which may in the future arise out of or relate to my participation in or my traveling to and from a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OR EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE, EVEN IF SUCH CLAIMS, LOSSES OR LIABILITIES ARE CAUSED BY THE NEGLIGENT ACTS OF OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY; (d) I ACKNOWLEDGE that there may be traffic or persons on the course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING [*5] OR PARTICIPATING IN ANY OTHER EVENT SANCTIONED BY USAT.
(e) I AGREE NOT TO SUE any of the persons or entities mentioned above in paragraph (c) for any of the claims, losses or liabilities that I have waived, released or discharged herein; (f) I INDEMNIFY AND HOLD HARMLESS the persons or entities mentioned above in paragraph (c) for any and all claims made or liabilities assessed against them as a result of my acts or inactions (ii) the actions, inactions or negligence of others including those parties hereby indemnified (iii) the conditions of the facilities, equipment or areas where the event or activity is being conducted (iv) the Competitive Rules (v) any other harm caused by an occurrence related to a USAT event . . .
Prior to the race, Lautieri also completed and signed a “Wet ‘N’ Wild Triathlon Application,” which contained the following language:
In consideration of the entry being accepted, I do hereby forever waive and release Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action, which I at any time acquire as a result of participation in the event for which this entry relates.
[*6] USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races. The subject triathlon was sanctioned by USTA based upon an application submitted by Fiske. On that application, William Fiske is identified as the Race Director. The Boys and Girls Clubs of Metrowest, Inc. provided a number of volunteers for the event.
DISCUSSION
[HN1] A party is entitled to summary judgment, “if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material facts and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). The burden of the moving party “is not sustained by the mere filing of the summary judgment motion,” but “must be supported by one or more of the materials listed in rule 56(c) . . .” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714, 575 N.E.2d 734, citing Celotex Corp. v. Catrett, 477 U.S. 317, 328, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). That party may satisfy this burden either by submitting affirmative evidence that negates an essential [*7] element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis, 410 Mass. at 716. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989), citing O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976).
General Laws c. 231B, § 1, [HN2] provides in pertinent part: “Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom [*8] contribution is sought could have been held liable in tort.” McGrath v. Stanley, 397 Mass. 775, 781, 493 N.E.2d 832 (1986) (emphasis in original). See also, Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 346-50, 446 N.E.2d 1033 (1983); Liberty Mutual Ins. Co. v. Westerlind, 374 Mass. 524, 526, 373 N.E.2d 957 (1978); O’Mara v. H.P. Hood & Sons, Inc., 359 Mass. 235, 238, 268 N.E.2d 685 (1971). 4 Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred. Each third-party defendant will be discussed separately below.
4 In McGrath, where a plaintiff’s failure to comply with the particular jurisdictional requirements of G.L.c. 258, § 4 was held not sufficient to bar a right of contribution, the SJC noted that the “contribution statute is aimed at eliminating the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors.” 397 Mass. at 777-78. The third-party defendants in the instant case, however, are not claiming a lack of jurisdiction, but instead that the plaintiff’s signature on certain waivers releases them from all liability. The SJC has approved the denial of the right of contribution in similar cases. See O’Mara, 359 Mass. at 238 (denying contribution to defendant company from the driver of car in which plaintiff was a passenger when company truck hit driver’s car); Liberty Mutual Ins. Co., 374 Mass. at 526 (denying contribution of plaintiff’s employer for work related injury on grounds that the employer’s contributions to workers’ compensation benefits released the employer from all tort claims that might have resulted from the accident).
[*9] A. William Fiske d/b/a/ Fiske Independent Race Management
Fiske argues that he was released from all liability regarding the Wet ‘N’ Wild Triathlon when Lautieri signed the USA Triathlon Annual Licence Application Waiver and the Wet ‘N’ Wild Triathlon Application. [HN3] Whether the waivers signed by the plaintiff are enforceable to bar any claims in tort against Fiske is a question of law to be decide by this Court.
[HN4] “Massachusetts law favors the enforcement of releases.” Sharon v. City of Newton, 437 Mass. 99, 105, 769 N.E.2d 738 (2002). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Id., quoting Schell v. Ford, 270 F.2d 384, 386 (1st Cir. 1959). While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted. Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993). [*10]
Thus, in Cormier, the SJC upheld summary judgment against a plaintiff who executed a waiver of liability prior to sustaining injuries while riding on a motorcycle safety course. The Court found the waiver sufficient to bar a claim in negligence, even though the word negligence never appeared in the document. Id. at 288. The SJC also rejected the plaintiff’s claim that she believed that she was only relieving the defendant for liability for any accidental injury, not for any injury caused by the defendant’s negligence, holding that her “subjective intent not to release any claim for negligence, does not furnish a basis for avoiding the release on the ground of mistake.” Id. at 289.
Upon examination of the two releases signed by Lautieri prior to the subject triathlon, it is evident that he executed an unambiguous release of the third-party defendant, William Fiske. The USA Triathlon Annual Licence Application Waiver clearly and unambiguously releases “RACE DIRECTORS” from “any and all claims, losses or liabilities . . .” Fiske is listed as the “Race Director” on the 2000 USA Triathlon Event Sanction Application submitted to USAT. Furthermore, [*11] the Wet ‘N’ Wild Triathlon Application releases “Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action . . .” To the extent that Bae argues that the phrase “agents, representatives, assigns and successors” might refer to the phrase “sponsoring organization,” and that Fiske Independent Race Management–while not a legal entity–does not actually refer to William Fiske, individually, such interpretations are not reasonable given the plain meaning of the waiver language. 5 Nevertheless, even if this Court were to hold that the Wet ‘N’ Wild Triathlon Application was sufficiently ambiguous to render the waiver unenforceable, the language of the USA Triathlon Annual Licence Application Waiver is unambiguous and releases Fiske from liability. Thus, Fiske’s motion for summary judgment, as it relates to Bae’s claim of negligence against him, is well founded.
5 William Fiske used the name “Fiske Independent Race Mgt.” and “F.I.R.M” on the 2000 USA Triathlon Event Sanction Application regarding the Wet ‘N’ Wild Triathlon. Since there is no evidence in the record that “Fiske Independent Race Mgt.” or “F.I.R.M” are incorporated entities, or that William Fiske filed a business certificate in Massachusetts under these names, William Fiske is not afforded any legal protection by virtue of the use of these fictional business entities. See Pedersen v. Leahy, 397 Mass. 689, 691, 493 N.E.2d 486 (1986).
[*12] This analysis, however, does not end the matter. [HN5] Both the SJC and the Appeals Court “have noted that releases are effective against liability for ordinary negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct 17, 18, 687 N.E.2d 1263 (1997) (emphasis in original), citing Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965). In Zavras, the Appeals Court, citing reasons of public policy, held that the owner of a premises at which organized dirt bike races were held did not exempt itself from liability for gross negligence by requiring participants in races to sign a release as a condition of participating. 44 Mass.App.Ct. at 18-19. See also, Restatement (Second) of Contracts § 195 (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”). The Zavaras court noted that there is “substantial authority . . . [for] the position that while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross [*13] negligence.” 44 Mass.App.Ct. at 19.
The present case is indistinguishable from Zavras. Here, Lautieri signed two valid waivers releasing Fiske, among others, from any and all liability that might arise from his participation in the subject triathlon race. While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.
Thus, for purposes of determining contribution, the question for this Court becomes whether a finder of fact could find Fiske liable to Lautieri for gross negligence. Based on the summary judgment record viewed in a light most favorable to Bae, a genuine issue of material fact exists concerning whether the accident resulted from Fiske’s gross negligence.
[HN6] Gross negligence is defined as “very great negligence, or the absence of slight diligence, or the want of even scant care.” Zavras, 44 Mass.App.Ct. at 20, quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). 6 As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence. [*14] ” Fidalgo v. Columbus McKinnon Corp., 56 Mass.App.Ct. 176, 184, 775 N.E.2d 803 (2002), citing Poirier v. Plymouth, 374 Mass. 206, 211, 372 N.E.2d 212 (1978); Resendes v. Boston Edison Co., 38 Mass.App.Ct. 344, 358, 648 N.E.2d 757 (1995). Bae has submitted the USAT 2000 Event Sanctioning Guidelines & Requirements as evidence of the negligence of Fiske and the other third-party defendants. In the section entitled “Bike,” the USAT triathlon regulations state: “2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.” Based on the record before this Court, [*15] it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored. Therefore, this Court cannot say that there is no genuine dispute as to whether a failure to heed any of the triathlon industry guidelines regarding intersections, which left oncoming drivers totally unaware of the possible dangers that awaited them, constitutes gross negligence. See Chiacchia v. Lycott Environmental Research, Inc., 4 Mass. L. Rptr. 399, 1995 WL 1146824, *10 (Mass.Super.) (finding that the multiple ways in which the defendant’s investigation of certain property “failed to conform to established standards in the industry lead the court to conclude that [defendant’s] negligence in this matter [amounted] to gross negligence”).
6 [HN7] “Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.
[HN8] “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.” Altman, 231 Mass. at 591-92.
[*16] While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against all of the third-party defendants has been made. [HN9] “Under current Massachusetts State practice there is no requirement that a complaint state the correct substantive theory of the case.” Gallant v. Worcester, 383 Mass. 707, 709, 421 N.E.2d 1196 (1981), citing Mass.R.Civ.P. 8(a)(2); Mass.R.Civ.P. 54 (c). Even though it is sound practice to state all possible claims, the SJC has held that “a complaint is not subject to dismissal if it would support relief on any theory of law.” Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (emphasis in original), citing Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir. 1973). Thus, courts are generally “obligated to consider each of the alternative theories of law . . . on which [the complaining party’s] action might be maintained.” Id. Several courts in other jurisdictions have permitted a plaintiff to proceed with a claim for gross negligence after having only pled a claim for negligence. [*17] See, e.g., McTavish v. Chesapeake and Ohio Railroad Co., 485 F.2d 510, 512 (4th Cir.1973) (holding that Kentucky law permitted a claim of gross negligence to flow from an allegation of “negligence and carelessness”); Smith v. Hill, 510 F. Supp. 767, 775 (D.Utah 1981) (upon review of pleading and briefs court assumed that plaintiff “intended to plead that the [defendants] were grossly negligent”). Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants. See Altman, 231 Mass. at 593 (holding that a plaintiff has the right to insist that a jury be instructed on the distinction between negligence and gross negligence at trial).
Accordingly, Fiske may be held liable for contribution to any successful claim for gross negligence that Lautieri could have made against Fiske at the time of the accident.
B. USAT
USAT argues that no duty exists between itself and the individuals who choose to participate in the triathlon. [HN10] Neither the SJC nor the Appeals Court has specifically ruled [*18] on whether a duty of care is owned to participants in an athletic event by a sanctioning body of the subject sport when that race takes place on public property.
USAT argues that the reasoning in Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989), compels the application of a recklessness standard in the present case. In Gauvin, the SJC held that “personal injury cases arising out of an athletic event must be predicted on reckless disregard of safety,” on grounds that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Id. at 454, citing Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983). The Gauvin case is not controlling here. Bae is not seeking to hold another participant in the triathlon responsible for Lautieri’s injuries. Instead, he is seeking damages from those who organized and sanctioned the event.
[HN11] Whether a defendant owed a duty of care to the plaintiff is a question of law. O’Sullivan v. Shaw, 431 Mass. 201, 204, 726 N.E.2d 951 (2000). In order for Lautieri to establish that USAT owed him a duty of care at the time the accident [*19] occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629, 536 N.E.2d 1067 (1989), or that USAT voluntarily, or for consideration, assumed a duty of care to Lautieri. Mullins v. Pine Manor College, 389 Mass. 47, 52-53, 449 N.E.2d 331 (1983). This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet. The only involvement of USAT with the subject triathlon was its approval of Fiske’s application, which, in essence, effectively permitted Fiske to be eligible for insurance coverage from the USAT Triathlon liability policy. There is no evidence in the record that suggests that USAT had any obligation or was expected to participate in the planning, operation, or supervision of the race, much less have a representative attend the Wet ‘N’ Wild triathlon. Accordingly, there is no basis on which to conclude that USAT owed Lautieri a duty of care. Assuming, arguendo, that USAT did owe a duty of care to Lautieri, the summary judgment record is devoid of any evidence that would permit a finder of fact [*20] to conclude that USAT acted with gross negligence with regard to Lautieri or the subject triathlon. Therefore, summary judgment in favor of third-party defendant USAT must be allowed.
C. Boys and Girls Clubs of Metrowest, Inc.
A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members. Thus, the waivers are operative to release the B&G Clubs from liability. Accordingly, summary judgment for the third-party defendant B&G Clubs must also be allowed.
ORDER
For the foregoing reasons, USA Triathlon, Inc’s and Boys and Girls Clubs of Metrowest, Inc.’s motions for summary judgment are ALLOWED, and, accordingly, judgment shall enter for the third-party defendants on Counts I and III of the third-party complaint, as they relate to claims of contribution, and on Counts I, II, and III of the third-party complaint, as they relate to indemnification. William Fiske, d/b/a Fiske Independent Race Management’s motion for summary judgment on Count II of the third-party complaint is DENIED as it relates [*21] to a claim for contribution.
Kenneth J. Fishman
Justice of the Superior Court
Date: October 29, 2003
WordPress Tags: Lautieri,Mass,Super,LEXIS,Derek,Jorun,Town,Hudson,defendant,complaint,Count,Memorandum,Decision,June,Bohn,SUPERIOR,COURT,MASSACHUSETTS,MIDDLESEX,October,DISPOSITION,Third,defendants,judgment,JUDGES,Kenneth,Fishman,Justice,OPINION,ORDER,MOTIONS,SUMMARY,INTRODUCTION,Plaintiff,action,negligence,failure,vehicle,Triathlon,USAT,William,Fiske,Independent,Race,Management,Boys,Girls,Clubs,Metrowest,contribution,event,injuries,layout,personnel,intersection,incident,Fisk,caption,BACKGROUND,Main,Street,Lewis,vehicles,collision,accident,Annual,Licence,Application,Waiver,person,death,injury,HEREBY,ASSUME,RISKS,TRIATHLONS,BISPORT,DUATHLON,EVENTS,health,statements,AWRL,member,organizers,administrators,AGREE,facilities,equipment,areas,area,DISCHARGE,liabilities,hospital,theft,participation,PERSONS,ENTITIES,SPONSORS,DIRECTORS,PRODUCERS,VOLUNTEERS,STATES,CITIES,COUNTIES,LOCALITIES,SEGMENTS,HELD,OFFICERS,EMPLOYEES,AGENTS,ABOVE,CLAIMS,LOSSES,NEGLIGENT,ACTS,OMISSIONS,ACKNOWLEDGE,RISK,paragraph,INDEMNIFY,HOLD,inactions,Competitive,Rules,occurrence,Prior,Wild,successors,USTA,requirements,Director,DISCUSSION,admissions,affidavits,Kourouvacilis,General,Motors,Corp,Celotex,Catrett,expectation,Flesner,Technical,Communications,absence,existence,fact,Pederson,Time,Brion,Russell,LeMay,Laws,Where,tort,Supreme,Judicial,statute,McGrath,Stanley,emphasis,Correia,Tire,Rubber,Mutual,Westerlind,Mara,Sons,recovery,jurisdiction,signature,waivers,denial,driver,truck,employer,contributions,workers,compensation,Whether,enforcement,Sharon,Newton,fraud,Schell,Ford,interpretation,Cormier,Central,Chapter,National,Council,Thus,motorcycle,basis,Upon,examination,Sanction,extent,interpretations,certificate,protection,virtue,Pedersen,Leahy,analysis,Both,Appeals,Zavras,Capeway,Rovers,Club,Sports,Associates,policy,owner,premises,dirt,bike,participants,Restatement,Second,Contracts,Zavaras,Here,purposes,finder,Gross,diligence,Altman,Aronson,definition,industry,Fidalgo,Columbus,McKinnon,Poirier,Plymouth,Resendes,Boston,Edison,Guidelines,road,lanes,width,feet,Control,intersections,turnarounds,Watch,Cyclists,motorists,warnings,drivers,dangers,Chiacchia,Lycott,Environmental,Research,Rptr,investigation,qualification,omission,degree,vigilance,forethought,prudence,requirement,moment,magnitude,inadvertence,amounts,indifference,obligations,violation,circumspection,consequences,Ordinary,inattention,tendency,Under,State,theory,Gallant,Worcester,dismissal,relief,Whitinsville,Plaza,Kotseas,Thompson,Allstate,theories,Several,jurisdictions,McTavish,Chesapeake,Ohio,Railroad,Kentucky,allegation,Smith,Hill,Supp,Utah,jury,distinction,individuals,Neither,Gauvin,Clark,threat,litigation,Kabella,Bouschelle,participant,Instead,Sullivan,Shaw,Yakubowicz,Paramount,Pictures,Mullins,Pine,Manor,College,involvement,approval,essence,insurance,coverage,obligation,supervision,Counts,Date,indemnification,himself,unenforceable,wilful
Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for.
Posted: August 12, 2013 Filed under: Colorado, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Accredited, AEE, BOEC, Breckenridge Outdoor Education Center, Colorado, Denver, Fraud, Magistrate, Misrepresentation, Release, Sit-Ski, Ski, skiing, Standards, Tether, United States district court 1 CommentThe release stopped the claims, which were thought out and tried to exploit the “accreditation” and “standards” created by a third party association.
Squires, v. Breckenridge Outdoor Education Center, 2013 U.S. App. LEXIS 9249 (10th Cir. 2013)
Plaintiff: Kimberly N. Squires
Defendant: Breckenridge Outdoor Education Center
Plaintiff Claims:
(1) The Release is as an invalid exculpatory agreement;
(2) Plaintiff’s decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107;
(3) Release was voidable because it was procured through fraud
Defendant Defenses: Release
Holding: for the defendant, the release was upheld
This case has been working its way through the courts for five years. The plaintiff was a legally blind child with cerebral palsy and cognitive delays. Her mother signed the necessary documentation to take a trip west with Camp Fire USA. Camp Fire USA contracted with the Breckenridge Outdoor Education Center (BOEC) to provide five days of skiing, a rope’s course and snow tubing.
The plaintiff was in a bi-ski which has an instructor holding tethers behind the skier. The BOEC instructor and the plaintiff were on their second run of the day. A third party skier lost control and skied into the tethers causing the BOEC instructor to lose the tethers. The plaintiff went down the hill unrestrained into a group of trees sustaining her injuries.
The plaintiff sued in Federal District Court located in Denver. A magistrate based upon a motion filed by the defendant dismissed the plaintiff’s negligence claim based on a release signed by the Plaintiff and her mother. The defendant’s motion also argued there was no evidence to support a gross negligence claim, which the magistrate did not deny.
The case proceeded to trial on the gross negligence claim. The jury returned a verdict for the defendant. The plaintiff then appealed the dismissal of the negligence claim based upon the release.
A magistrate is a quasi-judge. Magistrates in the Federal Court System are not appointed by the President and approved by the Senate, as all federal court judges are; but are appointed by the Chief Judge of the Federal District Court. The magistrate’s powers come from specific powers given to the magistrate by the judge who assigns a case to a magistrate or from an overall order from the Chief Judge of the court. Normally, a judge appoints a magistrate to handle all pre-trial matters. This frees up the judge to handle trials and those issues that may be appealed from the magistrate.
Summary of the case
The plaintiff appealed three issues concerning the validity of the release:
(1) the Release is as an invalid exculpatory agreement;
(2) [Plaintiff’s mother’s] decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107; [statute allowing a parent to sign away a child’s right to sue] and
(3) to the extent the Release is otherwise enforceable; it is, nevertheless, voidable because it was procured through fraud.
The 10th Circuit Court of Appeals went through a fairly in-depth analysis of release law in Colorado in making its decision. The court first looked into the requirements for a release to be valid under Colorado law. Releases are disfavored under Colorado law; however, they are not void. To be valid a Colorado Court must consider four factors:
(1) the existence of a duty to the public;
(2) the nature of the service performed;
(3) whether the contract was fairly entered into; and
(4) whether the intention of the parties is expressed in clear and unambiguous language
It was the fourth factor, whether the intent of the parties is set forth in clear and unambiguous language that is usually at issue. That means the language is clear and understandable so that the plaintiff when reading the document knew he or she was giving up their right to sue or recover for their injuries. The factor does not require the specific use of the word negligence and/or breach of warranty under Colorado law. However, the language of the release must express that the “intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”
Colorado courts look at the actual language of the release for “legal jargon” length, complication any likelihood of confusion or failure of the plaintiff to recognize the full extent of the release provisions. The court found that BOEC’s release met all of the requirements and was valid.
The plaintiff argued that the release failed to tell them that the plaintiff would be using a bi-ski and failed to disclose specific risks of this type of adaptive skiing. The court found that Colorado law did not require releases to refer to the specific activity that injured the plaintiff. Rather a release bars a claim if the release “clearly reflects the parties’ intent to extinguish liability for that type of claim.”
Note: the relaxed language allowed under Colorado law is not the same in other courts.
The plaintiff also developed a novel argument, which I have touched on before.
Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant.
Many times a third party or even another participant is the reason for the plaintiff’s injury. I write about injured parties suing other guests or third parties, such as skier v. skier collisions. Although the complaint does not name the outdoor recreation provider, specifically as a defendant, it does bring them in tangentially to a lawsuit. Here, the plaintiff argued the release failed because it did not notice the plaintiff of the risks brought to skiing by third parties.
However, the argument was not properly preserved or argued in the lower court so this court did not look at the argument. Appellate courts only will hear arguments that have been heard or argued in the lower court. Brand new arguments are ignored on appeal. It is important to argue everything you can in the lower court, to preserve all issues for appeal. This works both for claims of the plaintiff or defenses of the defendant.
The next argument, was there was not enough information in the release to satisfy the requirements of the statute which allows a parent to sign away a minor’s right to sue (C.R.S. 13-22-107). The plaintiff argued that because the risks of skiing in a bi-ski were not understood by the mother then the release should fail.
The court looked at two prior cases in Colorado that had looked at this issue: Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010) and Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) which I discuss in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele and Release stops suit for falling off horse at Colorado summer Camp.
Because the release did not state the risks of the activity, the court had to decide if it could look at extrinsic (other) evidence. The court in Hamel, allowed the defendant to show that prior experience of the parent in sending her daughter to camp and knowledge of other people who had been injured horseback riding was enough to show the mother knew the risks.
The court then allowed the knowledge of the mother and the letter sent with the release by BOEC to show the mother knew the general risks of skiing.
The final issue was the Fraudulent Inducement claim. The letter said the following:
(1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.
The mother made the following statements concerning what she believed based upon the letter.
Rather, she [plaintiff] relies on her mother’s statements that she “believed that BOEC was an accredited program,” and “that they had an [sic] accredited certified instructors that would manage a safe program.”
(“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).)
Although BOEC may or may not have been accredited by the AEE, the issue was the AEE did not have standards for skiing or adaptive skiing. The plaintiff argued that the letter, on one side of the release contradicted the release which was on the other side of the paper.
Add to the issue that BOEC admitted that it did not have what it advertised.
BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive [*30] ski program that Ms. Squires attended.
Marketing makes promises that Risk Management has to pay for.
The plaintiff argued that there was fraud in the inducement and because BOEC had advertised standards, BOEC did not have. On top of that the plaintiff argued that because BOEC did not have standards as they advertised BOEC was also misleading the plaintiff.
Ms. Squires argues that based upon the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.”
The letter and marketing of BOEC were enough to establish a fraud claim.
To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.
The release was presented to the plaintiff’s mother along with a “LETTER TO STUDENTS, PARENTS AND GUARDIANS.” The letter made several statements which the plaintiff brought to the attention of the court, which created legal issues that in many courts in other states, would have found for the plaintiff. Some of the parts of the letter were:
All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.
Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation.
The plaintiff could not prove that she had relied on the misstatements of BOEC. On top of the necessary requirement that there be reliance, the fraud or action of BOEC must be intentional.
Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.
Because the fourth element could not be provided the fraud claim was dismissed.
The final argument made by the plaintiff was the actions of BOEC were willful and wanton. The statute Colo. Rev. Stat. § 13-22-107(4) specifically prohibited releases signed by parents based to stop willful and wanton conduct.
Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Court defined willful and wanton conduct by relating the conduct to gross negligence.
“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.” “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” (“Conduct is willful and wanton if it is a dangerous course of action that is consciously chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”)
However, here again the plaintiff failed to show conduct that was purposeful or reckless. The court found the record was “devoid of sufficient evidence to raise a factual issue” at trial. Finding that the court held that claim was not met by the plaintiff.
So Now What?
The release in this case met the requirements of Colorado law. However, most other states, the release would not have been sufficient to stop the claims of the plaintiff. Besides, few states allow a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
BOEC does great work and does a good job. This like most facts giving rise to litigation are rare, even very rare. However, your release needs to be written to cover everything you possibly can. You can include a prohibition against injuries or claims caused by third parties. Would the outcome of this case been different if the third party who skied into the tethers been another BOEC student or instructor?
Releases can also be used to educate. If you do a good job of describing the risks in the release, then parents cannot make valid decisions, on whether or not they want to risk your kid with them. The defendant should have done a better job of explaining the risks of all activities within the program.
It is risky to rely upon outside information to prove knowledge of a release, unless you can prove the person saw and knew the information and have that proof in the release. This creates a 2-step process. 1.) You must prove you educated the customer or guest and 2.) You must prove the guest or customer was educated. The easiest way is to place this information on your website and then have your release reference the information.
Marketing makes promises that Risk Management must pay for. The advertising and statements made by the defendant in this case in many other jurisdictions would have gone the other way. Seriously, to make statements about awards, accreditation, or standards that do not exist are a great way to void a release and in many states increase the damages you may pay.
Other Cases: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234 (Dist Colo 2011)
Other articles where standards played a part in the decision in a negative way.
ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp
Plaintiff uses standards of ACCT to cost defendant $4.7 million
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Release, BOEC, Breckenridge Outdoor Education Center, Sit-Ski, Tether, Misrepresentation, Fraud, Standards, AEE, Accredited, Skiing, Ski,
WordPress Tags: Makes,Promises,Risk,Management,insurance,policy,accreditation,association,Squires,Breckenridge,Outdoor,Education,Center,LEXIS,Plaintiff,Defendant,Claims,Release,agreement,decision,Colorado,Statute,Section,fraud,Defenses,documentation,Camp,Fire,BOEC,instructor,hill,trees,injuries,Federal,District,Court,Denver,magistrate,negligence,jury,verdict,dismissal,Magistrates,System,President,Senate,Chief,Judge,trials,Summary,extent,Circuit,Appeals,depth,analysis,requirements,Releases,factors,existence,intention,fourth,factor,jargon,length,complication,failure,Rather,Note,argument,Many,participant,injury,guests,collisions,Although,complaint,recreation,provider,lawsuit,Here,Appellate,arguments,Brand,information,Wycoff,Grace,Church,Assemblies,Colo,Hamill,Cheley,Camps,attorney,clientele,horse,Hamel,daughter,knowledge,letter,Fraudulent,Inducement,manner,Experiential,policies,components,applicant,statements,instructors,paper,Program,Director,Paul,Gamber,Accident,lesson,procedures,Jeffrey,Inouye,representations,Greetings,misrepresentation,fact,representation,reliance,STUDENTS,PARENTS,GUARDIANS,attention,Some,environment,participation,requirement,action,misrepresentations,Stat,person,omission,Gross,Willful,Conduct,Besides,States,litigation,prohibition,outcome,student,decisions,customer,guest,reference,jurisdictions,Cases,Goodwin,Dist,Standards,Expert,Report,ACCT,cost,million,Trade,Summer,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Human,Rock,Ropes,Course,Challenge,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Tether,third,exculpatory,voidable,five,skier,upon,whether,adaptive
Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)
Posted: August 12, 2013 Filed under: Colorado, Legal Case, Skiing / Snow Boarding | Tags: Accredited, AEE, BOEC, Breckenridge Outdoor Education Center, Colorado, Denver, Fraud, Magistrate, Misrepresentation, Release, Sit-Ski, Ski, skiing, Standards, Tether, United States district court Leave a commentSquires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)
KIMBERLY N. SQUIRES, Plaintiff – Appellant, v. BRECKENRIDGE OUTDOOR EDUCATION CENTER, Defendant – Appellee.
No. 12-1199
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
715 F.3d 867; 2013 U.S. App. LEXIS 9249
May 7, 2013, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No.1:10-CV-00309-CBS-BNB).
Squires v. Goodwin, 829 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 129234 (D. Colo., 2011)
COUNSEL: Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for Plaintiff – Appellant.
David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the brief) of Grund ” Dagner, P.C., Denver, Colorado, for Defendant – Appellee.
JUDGES: Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
OPINION BY: McKAY
OPINION
Plaintiff Kimberly Squires filed this diversity action against Defendant Breckenridge Outdoor Education Center asserting claims for negligence and gross negligence following a ski accident in which she was injured. The magistrate judge granted Defendant’s motion for summary judgment in part, concluding Plaintiff’s mother, Sara Squires, had validly released any claim for negligence against Defendant by signing an acknowledgment of risk and release of liability. Plaintiff now appeals, arguing summary judgment was inappropriate because the Release [**2] is unenforceable for three reasons: (1) the Release is as an invalid exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not voluntary and informed, as required by [*870] Colorado Revised Statute Section 13-22-107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless voidable because it was procured through fraud.
Background
In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado. Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-profit organization dedicated to providing children, including children with disabilities, with opportunities and experiences for growth. Camp Fire USA had contracted with Defendant for a five-day wilderness program that included skiing, a ropes course, and snow tubing.
Before the trip, Defendant sent documents regarding the trip to Camp Fire USA, which in turn circulated them to the participants’ parents, including Mrs. Squires. The documents included a “Letter to Students, Parents and Guardians” (App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment of Risk & Release [**3] of Liability” (App. at 210 (capitalization omitted)).1 The Letter states, in pertinent part:
LETTER TO STUDENTS, PARENTS AND GUARDIANS
Greetings from Breckenridge! The BOEC staff looks forward to having you, your child or your family member join us on a course and would like to share the following information about who we are, what we do and the risks involved.
The Breckenridge Outdoor Education Center (BOEC), a non-profit organization in operation since 1976, provides outdoor adventure programs for people of all abilities. We offer programs for groups and individuals. All courses are tailored to the specific goals and abilities of our students.
. . . .
All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards. All activities offered are designed to pose appropriate challenges for students. These challenges provide a medium for adventure, learning and personal growth. Your ski lesson or course will involve risk, [**4] which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all [*871] risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure or activity is unclear to you.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledg[]ment of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places.
If you have any questions or comments, please do not hesitate to contact us. We welcome your suggestions and feedback.
(App. at 209.)
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
1 It is somewhat unclear whether the Release signed by Mrs. Squires was presented to her as a separate document from the Letter or as a single document [**5] with the Letter printed on one side and the Release printed on the reverse. The Letter itself refers to the Release “on the reverse side of this letter.” (App. at 209.) Plaintiff likewise initially represented the Release appeared on the reverse of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . . .).) However, during oral argument, Plaintiff’s counsel maintained this was a disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are standalone copies, and one copy happens to have a bleed-over language from the cover letter. It’s not clear . . . that that’s how that actually occurred when the Release was given to [Mrs. Squires] for signature.”) It is undisputed, however, that the Release the director of Camp Fire USA sent to the participants “included the cover letter that explained the waiver” (App. at 207), and that the two documents were sent as a single attachment (App. at 404, 407, 408).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
The accompanying Release provides:
ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)
In consideration of being allowed to participate in any way in Breckenridge Outdoor [**6] Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:
1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.
2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical [**7] facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.
(App. at 210.)
Plaintiff and her mother signed the Release on January 13, 2008. On that date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge and participation in Defendant’s program [*872] would include skiing, although she claims she was unaware of the precise equipment and methods her daughter would be using. Once in Breckenridge, Plaintiff was [**8] paired with a BOEC instructor and equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was injured when another, unrelated, skier lost control and skied into the tethers connecting Plaintiff and her instructor. The force of the collision caused the instructor to lose control of the tethers, and Plaintiff continued unrestrained down the trail and into a group of trees. She was injured when her bi-ski collided with a tree.
Following the accident, Plaintiff filed this action claiming Defendant’s negligence and gross negligence caused her injuries. Defendant moved for summary judgment, arguing the Release barred Plaintiff’s negligence claim and there was no evidence to support her gross negligence claim. The magistrate judge granted summary judgment in favor of Defendant on Plaintiff’s negligence claim, concluding Plaintiff’s mother had executed an enforceable exculpatory agreement that clearly and unambiguously expressed the parties’ intent to extinguish Defendant’s liability, and her decision to do so was voluntary and informed. The magistrate judge, however, denied Defendant’s motion on Plaintiff’s gross negligence claim. This claim proceeded to a jury, which [**9] found Defendant not liable. Plaintiff now appeals the grant of summary judgment on her negligence claim.
Discussion
HN1
“We review a district court’s decision to grant summary judgment de novo, applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (internal quotation marks omitted). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Colorado law applies in this diversity case.
I. Enforceability of the Release
Plaintiff argues the Release is unenforceable and, therefore, does not bar her negligence claim. She reasons that the Release is invalid under the four-part test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her mother did not make an informed decision, as required by Colorado Revised Statute Section 13-22-107.
A. Validity Under Jones
HN2In Colorado, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are not necessarily void.” Id. at 784. In [**10] determining whether an exculpatory agreement is valid, Colorado courts consider four factors: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. Plaintiff challenges only the magistrate judge’s conclusion on the fourth factor.
Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach of warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Heil Valley, 784 P.2d at 785. Rather, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. In making this determination, [*873] Colorado courts examine “the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).
The Release signed by Plaintiff and her [**11] mother clearly and unambiguously waives any negligence claims Plaintiff might have brought against Defendant. The Release begins by indicating it is signed “[i]n consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities.” (App. at 104.) It then warns that “it is impossible for the BOEC to guarantee absolute safety,” and identifies the potential risk of “loss or damage to personal property, injury, permanent disability, [and] fatality.” (Id.) The Release concludes, after only five short paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).) We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims I might state . . . including those claims based on negligence or breach of warranty.’ . . . There is nothing ambiguous about this portion [**12] of the agreement.” (first alteration in original)).
Plaintiff, however, contends the Release does not satisfy the fourth Jones factor because it failed to include that Plaintiff would be skiing using a bi-ski and failed to disclose specific risks associated with this form of adaptive skiing. She argues that Colorado law requires the Release to identify the specific activity being engaged in and describe specific associated risks. In support of this position, Plaintiff quotes from several other releases that have been upheld and claims it was their adequate detailing of risks that led the courts to conclude they were valid under the fourth Jones factor. However, even though the releases quoted by Plaintiff contain more detailed descriptions of the associated risks, their validity did not turn on this fact. Notably, none of the cases Plaintiff relies on evaluated the sufficiency of the description of the risks.
Contrary to Plaintiff’s argument, HN3Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured. See Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (concluding a release that did not mention [**13] the specific activity in which the plaintiff was injured was nevertheless valid because it “unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-75 (10th Cir. 1997) (concluding a release that did not include the specific activity and referred only to “the activity I am about to voluntarily engage in” was valid under Jones). Nor does it require “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., No. 96-1438, 1997 U.S. App. LEXIS 11807, 1997 WL 265093 (10th Cir. May 20, 1997) (unpublished) (citation omitted). The Release clearly reflects precisely such an intent—Plaintiff and her mother agreed, “[i]n consideration of being [*874] allowed to participate in . . . [Defendant’s] programs, and related events and activities” to “release [Defendant] from any and all claims . . . and causes [**14] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a [BOEC] activity.” (App. at 104.)
Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant. Plaintiff raises her first theory of ambiguity for the first time on appeal. Because this argument was not properly preserved, we do not consider it. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (HN4“[A] party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second theory of ambiguity, we agree with the magistrate judge’s conclusion that the Release is not reasonably susceptible to her interpretation, which strains logic. Plaintiff specifically argues the portion of the Release that releases Defendant from liability is rendered ambiguous by the following sentence: “I [**15] understand that I share the responsibility for safety during all activities, and I assume that responsibility.” (App. at 104.) She contends that by “discussing two alternate allocations of risk in the same document, the Release does not clearly and unambiguously express the intent of the parties, and thus, is unenforceable.” (Appellant’s Opening Br. at 23.) However, these two provisions create no such ambiguity. The sentence on which Plaintiff relies clearly expresses the participant’s agreement to share in the responsibility of participating in a safe manner, whereas the release provision clearly expresses the participant’s intent to release Defendant from liability. As the magistrate judge concluded, the two are not mutually exclusive, and the first provision makes it no less clear that Plaintiff’s mother intended to release Defendant from liability for any negligence claim.
Because the Release contains clear and unambiguous language demonstrating Plaintiff’s mother intended to release any negligence claims Plaintiff might have against Defendant, it is valid and enforceable under Jones.
B. Informed Decision Under Colorado Revised Statute Section 13-22-107
We turn then to whether Mrs. [**16] Squires’s consent to the Release was voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was not because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis.
In 2002, the Colorado Supreme Court held “that Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence.” Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107(3). The following year, the General Assembly superseded Cooper through enactment of Section 13-22-107(3). Under this section,HN5 “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute “declare[s] that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010). “So long as the decision is voluntary and informed, the decision should be given [**17] the same dignity as decisions [*875] regarding schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. § 13-22-107(1)(a)(V).
The Colorado Court of Appeals has “assume[d] that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but required something more for the waiver of a minor’s prospective negligence claims.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) (citation omitted). In addition to the Jones factors, “[t]he General Assembly required that the consent to waiver by a parent be ‘voluntary and informed.'” Id. “A parent’s decision is informed when the parent has sufficient [*876] information to assess the potential degree of risks involved, and the extent of possible injury.” Id.
Since the enactment of Section 13-22-107, the Colorado Supreme Court has not addressed whether a release satisfies the voluntary and informed requirement of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from the Colorado Court of Appeals only as they may [**18] aid our ability to predict how the Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co., 396 F. App’x 496, 502 n.14 (10th Cir. 2010).
The Colorado Court of Appeals has twice considered whether a parent’s consent to release prospective negligence claims on behalf of a minor child was voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first occasion, the Colorado Court of Appeals determined it “need not set forth . . . precisely how much information is required for a parental release to satisfy the statute” because “[t]here is no information in [the] one-page registration form describing the event activities, much less their associated risks.” Wycoff, 251 P.3d at 1264. There, the plaintiff was injured while being towed in an innertube behind an ATV on a frozen lake as part of her participation in a three-day event called “Winterama 2005.” Id. at 1263. Before attending the event, the plaintiff’s mother signed a one-page registration and information form, which contained a purported release in the following paragraph:
I give permission for my child to participate in . . . Winterama 2005 and all activities associated with it. I further give consent [**19] for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.
Id. (emphasis and correction in original). Although the plaintiff knew the Winterama activities would include riding on an ATV-towed innertube, her mother did not. The court concluded that the mother’s waiver was not informed because the registration and information form did “not indicate what the activities would involve and certainly d[id] not suggest they would include ATV-towed inner-tube excursions around a frozen lake.” Id. at 1264. As a result, there was no information from which the plaintiff’s parents could “assess the degree of risk and the extent of possible injuries” from her participation in Winterama. Id. at 1265.
Shortly after the Wycoff decision, the Colorado Court of Appeals again addressed whether a parent’s consent to release prospective negligence claims on behalf of her child was informed. Borrowing from the language used in Wycoff, the court began by stating, HN6“A parent’s [**20] decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” Hamill, 262 P.3d at 952 (citing Wycoff, 251 P.3d at 1265). In addressing the degree of risk, the court concluded the plaintiff’s mother was sufficiently informed about the risks involved in horseback riding, the activity in which the plaintiff was injured, because she “knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity.” Id. at 953. In reaching this conclusion, the court first relied on the undisputed fact that the plaintiff’s mother “knew the activities [the camp] offered,” because her daughter “had attended [the camp] and ridden the camp horses for two years before the accident.” Id. at 952. In addition, “[t]he agreement clearly indicated that horseback riding was an activity available to campers.” Id. The agreement further identified some of the “risks associated with participation in any camping activities,” and emphasized that “a complete listing of inherent and other risks is not possible” and there are even “risks which cannot be anticipated.” Id. at 949 [**21] (emphasis omitted). The court finally considered the fact that the plaintiff’s mother “never contacted [the camp] to discuss the release form, and had no questions about the language of the release form when she signed it.” Id. at 953. In light of all of this evidence, the court concluded the plaintiff’s mother was adequately informed of the risks involved with horseback riding. The fact that she “may not have contemplated the precise mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not create a genuine issue of material fact.” Id. The relevant inquiry was whether the plaintiff’s mother was aware the plaintiff would be riding horses and was advised there were risks associated with that activity, which she was.
The court then turned to whether the plaintiff’s mother was provided with sufficient information “to assess the extent of possible injuries to [her daughter].” Id. In making this determination, the court again considered both the language of the release and the plaintiff’s mother’s independent knowledge and experience. The release contained broad language waiving “any claims of liability, for any injury, even death.” Id. (internal quotation marks omitted). [**22] The plaintiff’s mother was further aware that Christopher Reeve, whom she knew personally, had been injured falling off a horse, and was therefore “aware that there were significant risks associated with horseback riding.” Id. The court thus concluded that the agreement adequately disclosed the extent of potential injuries; it “did not need to include an exhaustive list of particularized injury scenarios to be effective.” Id.
Before turning to whether Plaintiff’s mother’s consent to release prospective negligence claims against Defendant was informed, we must first address the scope of the evidence we may consider in making this determination. The Colorado courts have yet to specifically address this issue. In Wycoff, the court “assume[d] for purposes of th[e] case that a facially deficient exculpatory contract could be cured by extrinsic evidence.” 251 P.3d at 1264. Relying on this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V) must be limited to the four corners of the Release unless we first determine that the Release itself is facially deficient, in which case the Release would be invalid under Jones. Defendant, on the other hand, maintains we may [**23] properly consider the Letter that accompanied the Release as well as Mrs. Squires’s actual knowledge on the day she signed the Release.
[*877] We predict the Colorado Supreme Court would likely follow the approach advocated by Defendant and adopted by the Colorado Court of Appeals in Hamill—in determining whether a parent’s consent to release prospective negligence claims is voluntary and informed, the parent’s actual knowledge and the information provided in connection with the release should be considered in addition to the language of the release itself. Unlike the fourth factor of the common-law Jones test, which focuses on whether the agreement itself expressed the parties’ intention in clear and unambiguous terms, the focus of the voluntary and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s decision. If we were to limit our review to the language of the Release itself, we would not be in a position to adequately evaluate whether the parent’s decision was informed. HN7To “give[] effect to the General Assembly’s intent in enacting” Section 13-22-107, Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003)—that a parent’s decision to release his or her child’s prospective negligence [**24] claims be honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. § 13-22-107(1)(a)(V)—we must be able to consider the relevant information the parent had and was provided in order to make that decision. Indeed, were we to limit our review to the language of the Release itself, it would put the General Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of recreational activities would be required to incorporate all relevant information they supplied to parents within the release itself while simultaneously ensuring the release is not “inordinately long or complicated,” Heil Valley, 784 P.2d at 785. To avoid such a result and give the fullest effect to the General Assembly’s intent, we consider not only the language of the Release, but also the information Defendant provided to Plaintiff and Mrs. Squires in connection with the Release as well as Mrs. Squire’s actual knowledge on the date she signed the Release.
Considering this evidence, we conclude Mrs. Squires’s decision to release Plaintiff’s prospective negligence claims against Defendant was informed. Mrs. Squires had sufficient information from which to evaluate the degree of risk Plaintiff [**25] faced. She admittedly knew “when she signed the document . . . that her daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the students and their parents specifically referred to “[y]our ski lesson” (App. at 209), and the accompanying participant application identified “Sit-Down” and “Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson . . . will involve risk, which may be greater than most people encounter in their daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for BOEC to guarantee absolute safety,” and warned that in addition to the “risks during outdoor programs,” including “falling,” “there may be other risks not known . . . or not reasonable foreseeable at this time.” (App. at 210.) After receiving this information, Mrs. Squires did not contact Defendant to discuss the Release and did not inquire as to the risks that were going to be involved with the ski trip. Although Mrs. Squires “may not have contemplated the precise mechanics of her daughter’s fall,” including the precise mechanics of skiing with a bi-ski, this fact “does [**26] not invalidate the release.” Hamill, 262 P.3d at 953. Like the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she was advised that there were risks, known and unknown, associated with the activity.” Id.
Mrs. Squires likewise had sufficient information from which to assess the extent [*878] of possible injuries to Plaintiff. The Release contained broad language releasing “any and all claims,” “of every nature,” “whether resulting from negligence or otherwise.” (App. at 210.) The Release additionally specifically warned of the possibility of “injury, permanent disability, fatality . . . and severe social or economic losses that may result from any such incident.” (Id.) Contrary to Plaintiff’s argument, the Release “did not need to include an exhaustive list of particularized injury scenarios,” such as the possibility of colliding with a tree after the instructor lost control of the tethers, “to be effective.” Hamill, 262 P.3d at 953.
We conclude the Release satisfies both the Jones test and the voluntary and informed requirement of Section 13-22-107 and is, therefore, enforceable.
II. Fraudulent Inducement
Plaintiff argues in the alternative that even if the Release is [**27] enforceable, it should nevertheless be set aside because it was procured through fraud.2 HN8“A release is an agreement to which the general contract rules of interpretation and construction apply. Like any contract, a release procured through fraud can be set aside.” Chase v. Dow Chem. Co., 875 F.2d 278, 281 (10th Cir. 1989) (internal quotation marks and citation omitted). To establish fraud, a plaintiff must prove
(1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.
Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010). Furthermore, “[t]he misrepresentation must be made with the intent to deceive.” Club Valencia Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1026 (Colo. App. 1985).
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
2 Plaintiff first alluded to this argument in the hearing on Defendant’s motion for summary judgment. [**28] The magistrate judge then allowed supplemental briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant argued Plaintiff’s late reliance on the fraud defense “is neither proper nor excusable.” (App. at 378.) In its order, the magistrate judge considered Plaintiff’s fraud defense without discussing its timeliness or procedural propriety. Defendant has not argued on appeal that the magistrate judge erred in considering Plaintiff’s argument. We therefore have no occasion to address whether Plaintiff’s belated fraud defense was properly considered in the first instance.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Plaintiff contends the Letter, which accompanied the Release, contained three fraudulent misrepresentations: (1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.” (App. at 209.) However, Plaintiff has offered no evidence that statements two and three were false; that is, Plaintiff has [**29] pointed to no evidence that Defendant, generally, was not accredited by AEE or that AEE does not perform the functions described in statement three. Plaintiff’s argument then, hinges on the allegedly fraudulent misrepresentation in the first statement.
Plaintiff maintains the first statement constitutes a fraudulent misrepresentation because AEE does not have standards for [*879] adaptive skiing, and Defendant’s adaptive ski program is therefore at least one activity that is not “conducted in a manner consistent with the highest standards, as defined by [AEE].” (Id.) Accepting, without deciding, that this statement constitutes a fraudulent material misrepresentation, Plaintiff has failed to provide any evidence that Mrs. Squires relied on this misrepresentation in deciding to sign the Release. Plaintiff points to no evidence that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE standards. Rather, she relies on her mother’s statements that she “believed that BOEC was an accredited program” (App. at 354), and “that they had an [sic] accredited certified instructors that would manage a safe program” (App. at 357). (See [**30] also App. at 353 (“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).) These statements, even when viewed in the light most favorable to Plaintiff, do not support her position that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE’s standards.3 Notably, Mrs. Squires made no mention of AEE or its standards when discussing her beliefs about Defendant’s program. Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a material misrepresentation made by Defendant in the Letter, the magistrate judge properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently induced to sign the Release.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
3 While Mrs. Squires’s testimony may suggest she believed that Defendant’s adaptive ski program was accredited by AEE, the Letter made no such representation. Rather, this purported representation was inferred by Mrs. Squires from the three statements listed above in connection with the representation that “all courses are [**31] tailored to the specific goals and abilities of [the] students, all activities offered are designed to pose appropriate challenges for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s misunderstanding of Defendant’s Letter does not excuse her from the consequences of signing the Release. See Shoels v. Klebold, 375 F.3d 1054, 1070 (10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for Appellants’ acceptance, and so they cannot evade the normal limitations on relief from the consequences of their mistake.”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Conclusion
For the foregoing reasons, we AFFIRM the magistrate judge’s order granting summary judgment to Defendant on Plaintiff’s negligence claim.
WordPress Tags: Squires,Breckenridge,Outdoor,Education,Center,LEXIS,Dist,Plaintiff,Appellant,Defendant,Appellee,STATES,COURT,APPEALS,TENTH,CIRCUIT,PRIOR,HISTORY,APPEAL,FROM,DISTRICT,COLORADO,Goodwin,Supp,Colo,CASE,SUMMARY,PROCEDURAL,POSTURE,negligence,accident,judgment,OVERVIEW,agreement,decision,Stat,extent,fraud,agreements,information,degree,misrepresentation,letter,OUTCOME,TERMS,daughter,instructor,manner,quotation,guardian,horse,action,LexisNexis,Headnotes,Civil,Procedure,Appellate,Review,Standards,General,fact,Torts,Defenses,Exculpatory,Clauses,factors,existence,intention,Under,fourth,factor,Rather,determination,jargon,length,complication,failure,theory,Interpretation,statute,parents,decisions,treatment,addition,Jones,waiver,injury,Contracts,Contract,Conditions,Provisions,Waivers,construction,representation,reliance,COUNSEL,Michael,Sink,Perkins,Coie,Denver,Robert,Miller,Stephanie,Dunn,Gregory,Gold,Firm,Greenwood,Village,Thomas,Metier,Fort,Collins,David,Werber,John,Grund,Deana,Dagner,Joan,Allgaier,JUDGES,HARTZ,McKAY,BRIEN,OPINION,Judge,magistrate,Sara,Release,Section,Background,Resort,Camp,Fire,disabilities,opportunities,growth,participants,Students,Guardians,Acknowledg,Risk,Greetings,BOEC,member,adventure,abilities,individuals,goals,Association,Experiential,policies,components,applicant,lesson,environment,participation,student,signature,suggestions,feedback,Footnotes,argument,Oral,Some,director,attachment,ACKNOWLEDGMENT,events,Understand,precautions,supervision,instruction,equipment,Also,instructors,guidelines,procedures,exposure,insect,immersion,incident,accidents,illnesses,areas,facilities,Further,Agree,Assume,death,successors,employees,conjunction,January,Once,collision,trees,tree,injuries,jury,Discussion,Lundstrom,Romero,Dressel,Heil,Valley,Ranch,Simkin,conclusion,Chadwick,Colt,Ross,Outfitters,paragraphs,emphasis,Mincin,Vail,Holdings,alteration,descriptions,sufficiency,description,Contrary,Forman,Brown,defendants,Brooks,Timberline,Tours,Lahey,Covington,Twin,Lakes,Expeditions,citation,Lyons,Jefferson,Bank,Trust,logic,allocations,participant,provision,Supreme,policy,Cooper,Aspen,enactment,Wycoff,Grace,Church,Assemblies,Hamill,Cheley,Camps,requirement,FDIC,Schuchmann,registration,event,Winterama,paragraph,permission,correction,Although,tube,horses,campers,mechanics,knowledge,Christopher,Reeve,scenarios,scope,purposes,statement,evaluation,connection,Carlson,Ferris,odds,Providers,Squire,Down,Adaptive,Method,Fraudulent,Inducement,Chase,Chem,Barfield,Hall,Club,Valencia,Homeowners,Assocs,response,instance,misrepresentations,statements,hinges,testimony,consequences,Shoels,Klebold,basis,Appellants,acceptance,limitations,relief,AFFIRM,unenforceable,three,enforceable,voidable,horseback,novo,movant,whether,four,signor,behalf,five,capitalization,hereby,skier,innertube
Liability of race organizer for State Park Employees?
Posted: August 5, 2013 Filed under: Ohio, Triathlon | Tags: #race, Alum State Park, Division of Parks and Recreation, Inc., Lightning, ODNR, Ohio Department of Natural Resources, Triathlon, Ultrafit Usa, Volunteer Leave a commentLegally a complicated issue with no clear answer on how to prevent this issue in the future
Plaintiff: Roger Chapple & Joyce Chapple
Defendant: Appellee Ultrafit, Inc., Jeffrey Sheard
Plaintiff Claims: negligence, loss of consortium
Defendant Defenses: No duty
Holding: for the defendant
I would guess this is a subrogation case. A subrogation claim is based upon the subrogation clause in an insurance policy. This clause gives your insurance company that pays a claim on your behalf to sue someone in your name to recover what the insurance company paid. If you were hurt at work, and worker’s compensation paid a claim on your behalf, worker’s compensation could sue to recover for the damages WC paid.
However, that is just a guess in this case.
This is an interesting fact situation. The plaintiff was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation, (ODNR). The defendant was running a triathlon in one of Ohio’s state parks. The plaintiff signed up to work the triathlon through normal procedures with ODNR and the park.
The plaintiff had no interaction with the defendant prior to the accident. The triathlon was delayed for a while because of weather issues. Eventually, the triathlon started after a delay. The plaintiff was in the park, rolling a hose in an area where a leg of the race had been when he was struck by lightning. The plaintiff and his spouse sued for their injuries.
The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event.
Summary of the case
The court first looked at many factual issues that were pled at the appellate level that were in conflict with the deposition of the plaintiff. (Plaintiff on appeal said one thing and during his deposition said something else.) Although the court made note of those issues to deny the arguments of the plaintiff, no other action was taken.
The issue was whether the defendant was negligent. The negligence argument was centered on whether the defendant owed a duty to the plaintiff. The first part of that argument was whether the injury was foreseeable.
The existence of a duty is an essential element of negligence action. The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Here, appellants assert that, because appellee had authority to postpone or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present.
However, there were a few issues with that argument. The plaintiff knew that during lightning, ODNR had a policy that he was to return to his vehicle. The argument made by the defendant was, that there was no obvious lightning around the plaintiff, the lightning had all moved to the north. The final issue was who had control to cancel the event. The plaintiff argued that it was solely under the control of the defendant.
The control asserted is that appellant was included with the use of the facilities, and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone.
None of those arguments were persuasive with the court.
The facts in the case sub judice indicate that Roger Chapple [plaintiff] chose to work outside and felt that no danger existed. Roger Chapple believed that park rules provided that he waits in a vehicle if a weather danger existed, even though Mr. Hart [unknown person] disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees.
Because the plaintiff was an employee of ODNR and not of the race organization, it was clear that the liability for the injury had to be ODNRs. Control of the event was vested with several groups, and the plaintiff was still under the control of ODNR. “We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.”
So Now What?
If you are organizing events, you should always clarify who is responsible for what and who will ensure what. Here, clarification that ODNR is responsible for ODNR’s employees might have eliminated this issue.
However, who else would ever be in control of someone else’s employee is interesting. If someone is wearing a uniform, that person is the responsibility of the person issuing the uniform.
Another option is to always have volunteers sign a release. All volunteers should sign a release just so volunteers do not sue other volunteers.
This is an interesting case and possible ODNR procedures, and paperwork would not allow you to clarify the liability issues further. Government paperwork is difficult to modify. Sometimes, you just have to rely on insurance.
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 the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
Outdoor Recreation Insurance, Risk Management and Law
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.
Connect
If you like this let your friends know or post it on FB, Twitter, or LinkedIn
Facebook Page: Outdoor Recreation & Adventure Travel Law
LinkedIn https://www.linkedin.com/in/recreationlaw/
Threads https://www.threads.net/@recreation_law
X https://twitter.com/RecreationLaw
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2013-2023 Summit Magic Publishing, LLC
G-YQ06K3L262
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Ohio Department of Natural Resources, Division of Parks and Recreation, ODNR, Alum State Park, Triathlon, Ultrafit Usa, Inc., Volunteer, Race, Lightning,
WordPress Tags: organizer,State,Park,Employees,Chapple,Ultrafit,Ohio,LEXIS,Plaintiff,Roger,Joyce,Defendant,Appellee,Jeffrey,Sheard,Claims,negligence,consortium,Defenses,clause,insurance,policy,worker,compensation,fact,situation,employee,Department,Natural,Resources,Division,Parks,Recreation,ODNR,procedures,interaction,accident,area,spouse,injuries,status,postponement,cancellation,event,Summary,Although,arguments,action,argument,injury,existence,factor,person,circumstance,nonperformance,Here,appellants,appellant,danger,vehicle,facilities,direction,Hart,ODNRs,Control,Assignment,Error,events,clarification,Another,option,paperwork,Government,Sometimes,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Alum,Triathlon,Volunteer,Race,subrogation,behalf,whether,appellees
Will New York entertain counterclaims for attorney fees and costs to a prevailing defendant?
Posted: July 29, 2013 Filed under: New York, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: assumption of the risk, Hang gliding, Negligence, New York, New York City, Paragliding, Plaintiff, Public Policy, Recreation, Release, Skydiving, Summary judgment, Tandem, Tandem Skydiving 3 CommentsUnderlying claim is dismissed for assumption of the risk. Falling out of the sky is obviously dangerous.
Plaintiff: Lisa Nutley
Defendant: SkyDive the Ranch
Plaintiff Claims: Negligence
Defendant Defenses: Release and Assumption of the risk, counterclaim for attorney fees based on the release
Holding: for the defendant on the claims based on assumption of the risk
This is an interesting case. To understand the case, I’ve also posted the trial court opinion leading to the appeal of this case.
The spouse of the plaintiff bought her a tandem sky dive as a gift. During the jump, the main shoot did not open. The reserve shoot did open. During the jump, the plaintiff broke her third and fourth fingers on her right hand. She sued for negligence.
The defendant filed a motion for summary judgment to dismiss the plaintiff’s claims based on the three releases she had signed and the video and instruction she had watched.
The trial court denied the motion for summary judgment (Nutley v. Skydive The Ranch, 22 Misc. 3d 1122(A); 881 N.Y.S.2d 365; 2009 N.Y. Misc. LEXIS 274; 2009 NY Slip Op 50223(U); 241 N.Y.L.J. 23) and the defendant appealed.
Summary of the case
The basis of the denial of the motion for summary judgment is a New York statute which prohibited the use of a release for recreational activities. New York General Obligations Law (“GOL”) §5-326. The lawsuit was dismissed because the trial court found the defendant operated a sky-diving facility as a recreational business. The Defendant had argued that it was an educational business which does not fall under §5-326.
The appellate court found the releases were void under the New York statute.
The appellate court found that the risks of the activity were fairly obvious, and the plaintiff had assumed the risk of her injuries.
Here, the risk of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport
The court then went back to its decision on releases and found the language attempting to release the defendant for negligence was void; however, the rest of the release was still valid.
So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact…
Part of one of the releases had included a clause that any suit required the plaintiff to pay the defendant’s damages of attorney fees and costs. The defendant filed a counterclaim against the plaintiff based upon this clause. The court did not rule on this issue finding that the trial court needed to look into whether this clause violated public policy as advanced by the statute that voids releases.
As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts.
The matter was sent back to the trial court to determine if the counterclaim for attorney fees and costs of the defendant violated New York Public policy and for any defenses the plaintiff may have to the defendant’s counterclaims.
So Now What?
The defendant lost on the defense of release, but won on the defense of assumption of the risk. The defendant might win on the opportunity to sue the plaintiff for attorney fees and costs in the assumption of risk agreements (since the releases are void).
This case appears to be fairly clear in its approach and decision. You can get hurt if you fall out of the sky. That is pretty obvious. Therefore, you assume the risk.
The argument about the sky-diving facility being an educational business rather than recreation is discussed in the trial court decision. That argument made by the defendant was based on Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003). In Lemoine, the university was subject to the statute which voids releases in New York, but because it was an educational organization and not one for recreation, the statute did not apply.
What is different is the issue that the court held out the possibility that a demand for attorney fees and costs to a prevailing defendant may be viable in New York.
Four years has passed since this decision, and no other cases have been reported. Consequently, as of this time we do not have a decision to rely upon for this issue.
Even if there is not a valid claim because it violates public policy, there are several other theories on how a defendant can recover attorney fees in situations like this that may survive.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Skydiving, Release, Public Policy, Assumption of the Risk, Tandem, Tandem Skydiving,
WordPress Tags: York,attorney,defendant,assumption,Nutley,SkyDive,Ranch,Slip,LEXIS,Appel,Plaintiff,Lisa,Claims,Negligence,Defenses,Release,opinion,spouse,tandem,gift,fourth,judgment,instruction,Misc,Summary,basis,denial,statute,General,Obligations,lawsuit,injuries,Here,fact,injury,event,decision,waiver,Severance,provision,Part,clause,policy,agreements,litigation,Public,argument,recreation,Lemoine,Cornell,Four,theories,situations,Leave,FaceBook,Twitter,LinkedIn,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,counterclaims,counterclaim,appellate,whether,upon
Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)
Posted: July 29, 2013 Filed under: Assumption of the Risk, Legal Case, New York, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: assumption of the risk, Public Policy, Release, Skydiving, Paragliding, Hang gliding, Tandem, Tandem Skydiving Leave a commentNutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)
[*1] Lisa Nutley, Plaintiff-Respondent, v SkyDive the Ranch, Defendant-Appellant.
862, 108665/06
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999
August 11, 2009, Decided
August 11, 2009, Entered
PRIOR HISTORY: Nutley v. Skydive The Ranch, 22 Misc. 3d 1122A, 881 N.Y.S.2d 365, 2009 N.Y. Misc. LEXIS 274 (2009)
CORE TERMS: counterclaim, summary judgment, sport, attorney’s fees, enter judgment, recreational activity, parachute, default
COUNSEL: [***1] The Law Offices of David M. Schreier, New York (Steven E. Kurtz of counsel), for appellant.
McMahon, Martine & Gallagher, LLP Brooklyn (Patrick W. Brody of counsel), for respondent.
JUDGES: Tom, J.P., Friedman, Catterson, Moskowitz, Richter, JJ.
OPINION
[**530] Order, Supreme Court, New York County (Martin Shulman, J.), entered January 28, 2009, which denied defendant’s motion for summary judgment dismissing the complaint and for a default judgment on its counterclaim for attorney’s fees and [**531] costs, unanimously modified, on the law, the motion granted to the extent of awarding defendant summary judgment, the complaint dismissed, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly. Plaintiff is directed to respond to defendant’s counterclaims within 60 days of the date of this order.
Defendant demonstrated prima facie entitlement to summary judgment on the doctrine of assumption of risk. Plaintiff was engaged in a sport or recreational activity, the commonly appreciated risks of which are inherent in, and arise out of, the nature of the sport generally and are consequent upon such participation (see e.g. Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Here, the risk [***2] of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport (id. at 485).
So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact (see Caruso v Allnet Communication Servs., 242 AD2d 484, 485, 662 N.Y.S.2d 468 [1997]). As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts (cf. Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297, 177 N.E.2d 925, 220 N.Y.S.2d 962 [1961] [exculpatory clause not barred by “overriding public interest”]), the parties have not briefed the issue, and we do not reach it (see Brown v Christopher St. Owners Corp., 87 NY2d 938, 939, 663 N.E.2d 1251, 641 N.Y.S.2d 221 [1996]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 176, 710 N.Y.S.2d 54 [2000]). [***3] Defendant’s motion to enter judgment by default (CPLR 3215[c]) was appropriately denied in the exercise of discretion (cf. Charles F. Winsom Gems v D. Gumbiner, Inc., 85 A.D.2d 69, 71, 448 N.Y.S.2d 471 [1982], [*2] affd 57 NY2d 813, 441 N.E.2d 1118, 455 N.Y.S.2d 600 [1982]), and plaintiff should be afforded the opportunity to assert any defenses she might have to defendant’s counterclaims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: AUGUST 11, 2009
WordPress Tags: Nutley,SkyDive,Ranch,Slip,LEXIS,Appel,Lisa,Plaintiff,Respondent,Defendant,Appellant,SUPREME,COURT,YORK,APPELLATE,DIVISION,DEPARTMENT,August,PRIOR,HISTORY,Misc,TERMS,judgment,attorney,COUNSEL,Offices,David,Schreier,Steven,Kurtz,McMahon,Martine,Gallagher,Brooklyn,Patrick,Brody,JUDGES,Friedman,Catterson,Moskowitz,Richter,OPINION,Order,Martin,Shulman,January,complaint,extent,Clerk,entitlement,doctrine,assumption,participation,Morgan,State,Here,tandem,fact,injury,event,negligence,waiver,General,Obligations,Severance,provision,Caruso,Allnet,Communication,Servs,agreements,litigation,policy,Ciofalo,Tanney,Gyms,clause,Brown,Christopher,Owners,Corp,Bacchiocchi,Parachute,Club,CPLR,discretion,Charles,Winsom,Gems,Gumbiner,CONSTITUTES,DECISION,counterclaim,counterclaims,whether
Connecticut statute allows Camp Director to be personal liable for injuries of camper
Posted: July 22, 2013 Filed under: Connecticut, Minors, Youth, Children, Summer Camp | Tags: Camp, Camp Kenwood, Camp Moshava, Connecticut, Inc. dba Camp Kenwood, MAINE, Open and Obvious, Personal Liability, Recreation, Summerland Leave a commentConnecticut has been moving towards the defendant is liable no matter what attitude.
Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)
Plaintiff: John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers
Defendant: Summerland, Inc. dba Camp Kenwood, David B. Miskit and Sharon B. Miskit, Camp Directors
Plaintiff Claims: negligence
Defendant Defenses: individuals not personally liable and dangers were open and obvious to the plaintiff.
Holding: For the plaintiff, Connecticut statute creates personal liability for the camp directors and the open and obvious argument is a genuine issue of material fact to be determined by the jury.
Another case with good information, however, the case is probably not decided yet and the basis for the decision could be different than first reported.
The facts are spotty in this decision. The deceased was a thirteen-year-old girl attending the defendant Camp Kenwood. As part of the camp, the plaintiff was mountain biking on Bald Hill Road. The road gets steeper as it descends.
The camper was biking on the road and seems to have run off the road which caused her fatality. The administrator of her estate sued the camp and the camp directors individually.
Summary of the case
This appeal was of a denial of a motion for summary judgment. The motion looked at two issues. The first was the individual camp directors should not be personally liable for the plaintiff’s claims. The second was the case should be dismissed because the risks of the riding a bike on that road is open and obvious.
The individual liability issue was the first examined by the court. Connecticut has several statutes regulating summer camps for minors. One of those statutes C.G.S. §19a-422(c) states:
[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.
Another statute C.G.S. §19a-428(a) states:
“The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff….
The regulations adopted by the Commissioner of Public Health, included Regs., Connecticut State Agencies §19-13-B27a which states:
(1) No person shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.
Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.
The plaintiffs argued that because the statutes and regulations created a duty on the part of the directors to care for the “health, comfort and safety of camps” any injury to a camper created personal liability on the part of the camp director.
The defendant argued that liability for actions of a corporation, which owned the camp, could not be imputed to an individual, which is the law in most jurisdictions. That is the argument normally made in this situation where the employee is only acting on behalf of the employer or corporation and as such the corporation has the liability. However, the statutory scheme of Connecticut eliminated that defense.
Consequently, the court easily found that the statutory and regulatory framework in Connecticut created personal liability on the camp director.
The Open and Obvious argument was easier for the court to decide. Even though two camp counselors had warned the deceased of the risks of the road, and the road’s risks were discernible to any rider, the court found that whether or not a thirteen-year-old camper recognized and understood the risks was a decision for a jury.
So Now What?
Part of any plan to develop a business must look at any statutes that apply to the business. At the same time, when the legislature is making laws that may apply to your business you need to become involved and make sure the laws will not make your business life miserable or create liability.
If the statutes or regulations create liability either for the organization, business or program which you do not want to deal with or personal liability, make sure you want to deal with that state. In the alternative make sure can afford the insurance you will need.
Here what could probably appear to be a harmless statute created personal liability for the camp director. Normally, this is a “play” made by the plaintiff to try to increase the value of the case.
However, one issue that should be explored by any camp or outfitter is if the insurance coverage of the corporation provides a defense to individuals for actions of the individual who create statutory liability.
Absent that protection, the individual defendants could be personally liable for any damages. Their homeowner’s insurance would not provide coverage for the liability that occurs because of work. Whether or not their corporate documents, articles and bylaws, provide for indemnification of employees or the board of directors is willing to pay for the damages, the employees could be stuck with the bill personally. Dependent upon how the damages are paid; this could also create a tax liability for the individuals. The final issue is whether the insurance policy provides coverage for employees liable individually.
Whenever you are dealing with kids 12-14 years of age and younger, it is fairly impossible to prove assumption of the risk or the sub-set defense of open and obvious. Unless you have a record of prior experience, a video proving the training, you are going to have a difficult time with this defense.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Summerland, Inc. dba Camp Kenwood, Camp Kenwood, Summerland, Connecticut, Open and Obvious, Personal Liability,
WordPress Tags: Connecticut,statute,Camp,Director,injuries,camper,defendant,attitude,Wynne,Summerland,Conn,Super,LEXIS,Plaintiff,John,Administrator,Estate,Hunter,Brothers,Kenwood,David,Miskit,Sharon,Directors,Claims,negligence,Defenses,individuals,dangers,argument,fact,jury,Another,information,basis,decision,girl,mountain,Bald,Hill,Road,Summary,denial,judgment,bike,statutes,minors,specialists,counselors,maintenance,personnel,reputation,Commissioner,Public,Health,accordance,chapter,youth,qualifications,Regs,State,Agencies,person,turpitude,physician,narcotic,drug,Except,management,campers,appliances,plaintiffs,injury,corporation,jurisdictions,situation,employee,employer,framework,Open,Obvious,rider,Part,legislature,laws,life,insurance,Here,coverage,Absent,protection,defendants,homeowner,Whether,bylaws,employees,Dependent,policy,assumption,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Human,Rock,Ropes,Course,Challenge,Summer,Camps,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Personal
Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)
Posted: July 22, 2013 Filed under: Connecticut, Legal Case, Minors, Youth, Children, Summer Camp | Tags: Bicycling, Camp Director, Camp Kenwood, Connecticut, Cycling, Minor, statute, Summary judgment, Summer Camp, Summerland Leave a commentWynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)
John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers v. Summerland, Inc. dba Camp Kenwood et al.
LLICV095006358S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD
2012 Conn. Super. LEXIS 2684
November 1, 2012, Decided
November 2, 2012, Filed
NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
JUDGES: [*1] John W. Pickard, J.
OPINION BY: John W. Pickard
OPINION
MEMORANDUM OF DECISION
This is a wrongful death action arising out of the death of Hunter E. Brothers (“Brothers”), a thirteen-year-old camper at Camp KenWood, a summer youth camp in Kent, Connecticut. Brothers died while engaged in a mountain biking activity supervised by two counselors from the camp. The defendant, Summerland, Inc. d/b/a Camp KenWood operated the camp. The defendants, David B. Miskit and Sharon B. Miskit (“the Miskits”), are directors of Camp KenWood. All defendants have moved for summary judgment (#152). The plaintiff, John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers, objects (#158). The court heard oral argument on September 17, 2012.
I. Personal Liability of David and Sharon Miskit
The first basis of the motion for summary judgment is stated by the defendants as follows: “There is no genuine issue of material fact that David Miskit and Sharon Miskit, as officers of a corporation, do not incur personal liability for the corporation’s torts merely because of their official position. There is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor is there any evidence [*2] that Summerland served merely as their alter ego. Thus, summary judgment should enter in favor of David Miskit and Sharon Miskit.”
Paragraph 30 of the third count of the plaintiff’s complaint is based on negligence and is directed against the Miskits as follows: “David Miskit, as President of Summerland, and David and Sharon Miskit, as Directors of Camp KenWood, owed a duty of care to Brothers, because Brothers was a minor child who was entrusted to the care of David and Sharon Miskit, and under Section 19-13-B27a(s) of the Regulations of Connecticut State Agencies, which provides as follows: ‘The camp director shall be responsible at all times for the health, comfort and safety of campers.'” Thus, David Miskit is sued as President of Summerland, Inc. and as a director of Camp Kenwood. Sharon Miskit is sued only as a director of Camp Kenwood.
The Miskits claim that there is no genuine issue of material fact that they do not incur personal liability for the corporations’ torts merely because of their official position. The plaintiff argues that the Miskits, as directors of Camp KenWood, owed Hunter a duty of care imposed by the statutes and regulations of the State of Connecticut. The [*3] plaintiff did not present a serious argument that David Miskit owed a duty of care to Brothers merely because he was the President of Summerland, Inc.
Before discussing the Miskits’ basis for summary judgment, it is necessary to distinguish between directors of corporations and directors of youth camps. [HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. C.G.S. §19a-422(c) provides: “[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.” C.G.S. §19a-428(a) provides that: “The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff . . .”
The regulations adopted by the Commissioner of Public Health pertaining to youth camps are found in Regs., Connecticut State Agencies §19-13-B27a. Subsection (n) of that regulation provides, in part: [HN2] “(1) No person [*4] shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.” Subsection (s) of that regulation provides [HN3] “Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.”
[HN4] The statutory and regulatory scheme with [*5] respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.
Turning to the first basis for summary judgment, the defendants are correct that David Miskit, as President of Summerland, Inc., cannot be liable for the negligence of the corporation absent evidence that he used the corporation as his alter ego. The plaintiff has not made the allegations which would be necessary to pierce the corporate veil. The real ground for the liability of the Miskits rests not on their status as directors or officers of Summerland, Inc., or on piercing the corporate veil, but upon their liability as directors of Camp KenWood.
The motion [*6] for summary judgment and the supporting brief never address the real ground of liability alleged by the plaintiff against the Miskits that as directors of Camp Kenwood they breached their statutory and regulatory duty to be responsible for the health, comfort and safety of the campers including Brothers. Instead, the defendants focus on whether the Miskits can be liable based upon their official capacities at Summerland, Inc. The last two sentences of the defendants’ brief on this point reads: “In short, David and Sharon Miskit have been named as party defendants merely because they are officers of Summerland, Inc. Officers of a corporation, however, do not incur personal liability for its torts merely because of their official position. Inasmuch as there is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor any evidence that Summerland served as their alter ego, they are entitled to summary judgment on all of the plaintiff’s claims.”
[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the “health, comfort and safety of campers.” As co-directors of Camp KenWood, the Miskits [*7] are alleged to have breached this duty.1 The documentary evidence submitted by the plaintiff creates a genuine issue of material fact about whether, in fact, the Miskits breached their duty. ” [HN6] Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
1 In paragraph thirty-one of the third count the plaintiffs allege that David and Sharon Miskit breached their duty of care to Hunter through their negligence, in that:
a. They failed to adequately supervise and train Summerland employees with respect to the use of mountain bicycles by campers, CPR techniques and emergency first aid skills:
b. They failed to provide adequate instruction to Camp KenWood’s campers, including Brothers, in the safety precautions necessary for mountain bicycle trips over steep [*8] and uneven terrain, including but not limited to the negotiation or avoidance of dangerous hills and curves and the adequate securing of a helmet:
c. they failed to have a policy which pre-screened and approved appropriate areas for mountain bicycle riding for campers of various ages;
d. They failed to have a policy that prohibited Camp KenWood’s employees from taking young campers on off-camp premises mountain bicycle trips that were not safe for young children.”
II. Open and Obvious
The defendants’ second basis for summary judgment is that, because the geography of Bald Hill Road was an open and obvious condition, the defendants had no duty to warn Brothers about it. The defendants argue that, as a matter of law, the court should determine that there is clear and undisputed evidence that the risk of riding a bicycle down Bald Hill Road was so open and obvious to thirteen-year-old Brothers that it would negate any duty to warn on the part of the two counselors who were supervising her. In support of that proposition the defendants have presented the court with portions of deposition transcripts and other documents. They argue that the grade and contours of Bald Hill Road were easily observable [*9] by Brothers. Also, the two counselors testified that they stopped with Brothers at the top of Bald Hill Road and told her that the hill got steeper near the bottom and that she would need to control her speed with her brakes. Based upon this discussion, the defendants argue that Brothers was actually aware of the condition of the road. The defendants have cited the court to various cases in which courts have held that dangerous conditions were open and obvious as a matter of law.
The plaintiff argues that the issue of whether the condition of Bald Hill Road is open and obvious is a genuine question of fact which cannot be decided on a motion for summary judgment. I agree. The documentary evidence about Bald Hill Road presents a genuine issue of fact as to whether the steep part of Bald Hill Road can be seen from the top of the hill. Brothers had never been on Bald Hill Road. Whether the discussion she had with the counselors at the top of the hill was sufficient to alert her to the danger is a question of fact as well.
Furthermore, unlike most of the cases cited by the defendants, this is not a premises liability case. There are nine separate allegations of negligence directed against [*10] Summerland, Inc., only one of which relates to a failure to warn. The defendants have not addressed these other allegations of negligence in the motion for summary judgment.
III. Conclusion
For the reasons given above, the motion for summary judgment is denied.
BY THE COURT,
John W. Pickard
New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Posted: July 22, 2013 Filed under: New Hampshire, Ski Area, Skiing / Snow Boarding, State | Tags: New Hampshire, New Hampshire Ski Area Safety Act, ski area, Ski Resort, Ski Safety Act, Skier, Snowboarder 2 CommentsNew Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
NEW HAMPSHIRE REVISED STATUTES ANNOTATED
TITLE XIX Public Recreation
CHAPTER 225-A Skiers, Ski Area and Passenger Tramway Safety
Go To New Hampshire Statutes Archive Directory
225-A:1 Declaration of Policy. 3
225-A:1-a Administratively Attached. 5
225-A:3 Passenger Tramway Safety Board. 8
225-A:3-a Passenger Tramway Safety Board. 8
225-A:9 Declaratory Judgment. 12
225-A:9-a Declaratory Judgment. 12
225-A:10-a Review of Plans and Specifications. 13
225-A:11 Operator to Pay Certain Costs. 13
225-A:12 Inspection Reports. 13
225-A:14 Registration Required. 14
225-A:15 Application for Registration. 15
225-A:18-a Emergency Shut-Down. 17
225-A:19-a Operation Forbidden. 19
225-A:23 Responsibilities of the Ski Area Operator. 21
225-A:24 Responsibilities of Skiers and Passengers. 24
225-A:25 Insurance; Limitations. 29
225-A:1 Declaration of Policy.
The state of New Hampshire finds that the sports of skiing, snowboarding, snow tubing, and snowshoeing are practiced by a large number of citizens of the state of New Hampshire, and also that skiing, snowboarding, snow tubing, and snowshoeing attract to the state of New Hampshire large numbers of nonresidents significantly contributing to the economy of New Hampshire. Therefore, it shall be the policy of the state of New Hampshire to protect its citizens and visitors from unnecessary mechanical hazards in the operation of ski tows, lifts, nordic ski jumps and passenger tramways, to ensure that proper design and construction are used, that board accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of ski tows, ski lifts, nordic ski jumps and passenger tramways. The primary responsibility for operation, construction, maintenance and inspection rests with the operators of such passenger tramway devices. The state, through its passenger tramway safety board, as hereinafter provided, shall register all ski lift devices and nordic ski jumps, establish reasonable standards of design and operational practices, and make such independent inspections as may be necessary in carrying out this policy. Further, it shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and nordic ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.
225-A:1-a Administratively Attached.
The passenger tramway safety board shall be an administratively attached agency, under RSA 21-G:10, to the department of safety.
225-A:2 Definitions.
In this chapter:
“Board” means the passenger tramway safety board.
“Department” means the department of safety.
“Industry” means the activities of all those persons in the state who own or control the operation of ski areas.
“Nordic ski jump” means a facility constructed for the purpose of nordic ski jumping and built in accordance with appropriate standards and guidelines, and any facilities that are associated with the use or viewing of such a facility.
“Passenger” means any person, including skiers, while being transported or conveyed by a passenger tramway, or while waiting in the immediate vicinity for such transportation or conveyance, or while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the following passengers, or while in the act of boarding or embarking upon or disembarking from a passenger tramway.
“Passenger tramway” means a device used to transport passengers uphill on skis or other winter sports devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains or belts or by ropes, and usually supported by trestles or towers with one or more spans. The term passenger tramway shall include the following:
Two-car aerial passenger tramway, a device used to transport passengers in 2 open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
Multi-car aerial passenger tramway, a device used to transport passengers in open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
“Conveyor” means a class of outdoor transportation wherein skiers or passengers are transported uphill on a flexible moving element such as a conveyor belt.
Chair lift, a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans, or similar devices.
J bar, T bar or platter pull, so-called, and similar types of devices are means of transportation which pull skiers riding on skis by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans.
Rope tow, a type of transportation which pulls the skier riding on skis as the skier grasps the rope manually, or similar devices.
Wire rope tow means a type of transportation by which skiers are pulled on skis while manually gripping a handle attached to a wire hauling cable. The hauling cable is maintained at a constant height range between the loading and unloading points, and there is only one span with no intermediate towers.
“Ski area operator” means a person who owns or controls the operation of a ski area. The word “operator” shall include the state or any political subdivision. An operator of a passenger tramway shall be deemed not to be operating a common carrier. Ski area operator is included in the term “operator” as used in this chapter.
“Ski areas” means all passenger tramways and all designated alpine and nordic trails, slopes, freestyle terrain, tubing terrain, and nordic ski jumps under the control of the alpine and nordic ski area operator and any other areas under the operator’s control open to the public for winter sports recreation or competition.
“Skier” means a person utilizing the ski area under the control of a ski area operator for ski, snowboard, and snow tube recreation and competition.
“Tubing terrain” means areas designated for sliding on inflatable tubes or other similar devices down a prepared course or lanes at a ski area.
“Winter sports” means the use of skis, snowboards, snow tubes, snowshoes, and any device being utilized by a disabled or adaptive participant for winter recreation or competition.
225-A:3 Passenger Tramway Safety Board.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:3-a Passenger Tramway Safety Board.
There shall be a passenger tramway safety board of 4 appointive members. The appointive members shall be appointed by the governor, with the advice and consent of the council, from persons representing the following interests: one member who operates a “surface lift” as described in RSA 225-A:2, I(e)-(g) only and one member from the cable and other passenger carrying devices industry, and in making such appointments consideration shall be given to recommendations made by members of the industry, so that both the devices which pull skiers riding on skis and the devices which transport passengers in cars or chairs shall have proper representation; one member to represent the public at large; and one member to represent insurance companies which engage in insuring passenger tramway operations, and in appointing such member consideration shall be given to recommendations made by such insurance companies. The authority of such board shall not extend to any other matter relative to the operation of a ski area.
225-A:4 Term of Office.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:4-a Term of Office.
Of the first appointments under this section one member shall be appointed for a term of one year, one for a term of 2 years, one for a term of 3 years and one for a term of 4 years, and until their successors are appointed and qualified, and thereafter each of the appointed members shall be appointed for a term of 4 years and until his successor is appointed and qualified. Vacancies in the board shall be filled for the unexpired term.
225-A:5 Removal.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:5-a Removal.
The appointive members of the board may only be removed from office as provided in RSA 4:1.
225-A:6 Compensation.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:6-a Compensation.
The appointive members of the board shall serve without compensation, but shall be reimbursed for their reasonable expenses incurred in official duties.
225-A:7 Records.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:7-a Records.
The department shall provide the board with such office and clerical assistance as may be necessary to carry on the work of the board, in accordance with RSA 225-A:1-a. The department shall also preserve the records, codes, inspection reports, and business records of the board.
225-A:8 Rulemaking.
The board with the approval of the commissioner of safety shall adopt, under RSA 541-A, rules after public hearing, relating to public safety in the construction, operation and maintenance of passenger tramways. The rules shall be in accordance with established standards, if any, and shall not be discriminatory in their application to operators of passenger tramways. The board shall also give notice of any public hearing under RSA 541-A for such rules by first class mail to each registered operator at least 14 days before the hearing.
225-A:9 Declaratory Judgment.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:9-a Declaratory Judgment.
The validity or reasonableness of any rule adopted by the board may be judicially determined upon a petition to the superior court for declaratory judgment, brought within 30 days after the effective date of such rule. The court shall hear the petition and render a declaratory judgment only when it appears that the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair the legal rights and privileges of the petitioner. In rendering judgment the court shall give effect to any pertinent constitutional limitations upon the powers of the board, the limits of the authority and jurisdiction of the board as conferred under this chapter, and the procedural requirements of this chapter.
225-A:10 Inspections.
The department may make such inspection of the construction, operation and maintenance of passenger tramways as the board may reasonably require. The department may, at its own expense, employ other qualified engineers to make such inspections.
225-A:10-a Review of Plans and Specifications.
Prior to the construction of a new, or the alteration of an existing, passenger tramway, the operator or prospective operator shall submit plans and specifications to the department. The department may make recommendations relative to safety of the layout and equipment, but such recommendation shall not relieve the operator or prospective operator of his primary responsibility as set forth in RSA 225-A:1.
225-A:11 Operator to Pay Certain Costs.
[Repealed 1973, 52:5, eff. May 23, 1973.]
225-A:12 Inspection Reports.
If, as the result of an inspection, it is found that a violation of the board’s rules, regulations or code exists, or a condition in passenger tramway construction, operation or maintenance exists endangering the safety of the public, an immediate report shall be made to the board for appropriate investigation and order.
225-A:13 Complaints.
Any person may make written complaint to the board setting forth any thing or act claimed to be done or omitted to be done by any registered operator which is alleged to be in violation of any rule, regulation or code adopted by the board, or setting forth any condition in passenger tramway construction, operation or maintenance which is alleged to endanger the safety of the public. Thereupon the board shall cause a copy of said complaint to be forwarded to the registered operator complained of, which may be accompanied by an order requiring that the matters complained of be answered in writing within a time to be specified by the board. The board may investigate the matter complained of if it shall appear to the board that there are reasonable grounds therefor.
225-A:14 Registration Required.
No passenger tramway shall be operated in this state unless the operator thereof was registered by the board.
225-A:15 Application for Registration.
On or before November 1 of each year every operator of a passenger tramway shall apply to the board, on forms prepared by it, for registration hereunder. The application shall contain such information as the board may reasonably require.
225-A:16 Fees.
The application for registration shall be accompanied by the applicable annual fees to cover the costs of administering this chapter. The fees for registration shall be set by the board by rule adopted pursuant to RSA 541-A.
225-A:17 Registration.
The board, if satisfied with the facts stated in the application, shall issue a registration certificate to the operator. Each registration shall expire on October 31 next following the day of its issue.
225-A:18 Fees.
All fees collected by the board hereunder shall be credited to the special appropriation for the department to be expended for purposes of this chapter.
225-A:18-a Emergency Shut-Down.
When facts are presented to the board, or to any member thereof, tending to show that an unreasonable hazard exists in the continued operation of a tramway, the board or member, after such verification of said facts as is practical under the circumstances and consistent with the public safety, may, by an emergency order require the operator of said tramway forthwith to cease using the same for the transportation of passengers. Such emergency order shall be in writing and notice thereof may be served by any person upon the operator or his agent immediately in control of said tramway by a true and attested copy of such order, the return of such service to be shown by an affidavit on the back thereof. Such emergency order shall be effective for a period not to exceed 48 hours from the time of service. Immediately after the issuance of an emergency order hereunder, the board shall conduct an investigation into the facts of the case as contemplated in RSA 225-A:19, and shall take such action under said RSA 225-A:19 as may be appropriate.
225-A:19 Orders.
If, after investigation, the commissioner of safety or the board finds that a violation of any of the rules exists, or that there is a condition in passenger tramway construction, operation or maintenance endangering the safety of the public, either the commissioner of safety or the board shall forthwith issue a written order setting forth his or its findings, the corrective action to be taken, and fixing a reasonable time for compliance therewith. Such order shall be served upon the operator involved by registered mail, and shall become final, unless the operator shall apply to the board for a hearing in the manner hereinafter provided.
225-A:19-a Operation Forbidden.
If in any such case the commissioner of safety or the board is of the opinion that the public safety would be endangered by the use of the tramway for the transportation of passengers prior to the taking of some or all of such corrective action, he or it shall so state in said order, and shall require in said order that the tramway shall not be so used until specified corrective action shall have been taken. From and after receipt of the order by the operator said tramway shall not be used for the transportation of passengers without the approval of the commissioner of safety or the board. Application for a hearing before the board shall not have the effect of suspending said order. Operation of the tramway following receipt of such order may be enjoined by the superior court.
225-A:20 Hearing.
Any such operator, who is aggrieved by any such order, may, within 10 days after the service of such order upon him as hereinbefore provided, apply to the board for a review of such order. It shall be the duty of the board to hear the same at the earliest convenient day. At such hearing the operator shall have the right to be heard personally or by counsel, to cross-examine witnesses appearing against him, and to produce evidence in his own behalf. After such hearing, the board shall report its findings in writing to the commissioner of safety and make such order as the facts may require.
225-A:21 Appeal.
Any such operator, who is aggrieved by any such post-hearing order of the board, may, within 14 days after the entry thereof, appeal therefrom to the superior court. No such appeal shall suspend the operation of the order made by the board; provided that the superior court may suspend the order of the board pending the determination of such appeal whenever, in the opinion of the court, justice may require such suspension. The superior court shall hear such appeal at the earliest convenient day and shall make such decree as justice may require.
225-A:23 Responsibilities of the Ski Area Operator.
It shall be the responsibility of the operator to maintain the following signs and designations:
General Designations. The following color code is hereby established:
Green circle: On area’s easiest trails and slopes.
Black diamond: On area’s most difficult trails and slopes.
Blue square: On area’s trails and slopes that fall between the green circle and black diamond designation.
Yellow triangle with red exclamation point inside with a red band around the triangle: Extrahazardous.
Border around a black figure in the shape of a skier inside with a band running diagonally across the sign with the word “closed” beneath the emblem: Trail or slope closed.
Orange oval: On area’s designated freestyle terrain without respect to its degree of difficulty.
Base Area; Information to Skiers and Passengers. (a) A trail board shall be maintained at a prominent location listing the ski area’s network of ski trails, slopes, tubing terrain, and designated freestyle terrain in accordance with the aforementioned color code and containing a key to the code in accordance with the above designations; said trail board shall further designate which trails, slopes, and snow tube terrain are open or closed.
(b) The ski area operator shall warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.
(c) A map shall be available at all ski areas to all skiers and passengers indicating the system of ski trails, slopes, tubing terrain, and designated freestyle terrain in accordance with the color code in paragraph I.
Ski Trails and Slopes; Information and Warning to Skiers and Other Persons. (a) The operator shall mark the beginning of each alpine and nordic ski trail or slope with the appropriate symbol for that particular trail’s or slope’s degree of difficulty in accordance with RSA 225-A:23, I.
(b) The beginning of each alpine ski trail or slope is defined as the highest point of the trail or slope. Lower trail junctions and intersections may be marked with a degree of difficulty symbol.
(c) The operator shall mark the beginning of, and designated access points to, each alpine trail or slope that is closed with a sign in accordance with RSA 225-A:23, I(e). For purposes of this subparagraph, “designated access points” means the beginning of a trail, slope, or any point where an open trail crosses or intersects the closed trail as shown on the ski area’s trail board and trail map.
(d) The operator shall mark the beginning of and designated access points to terrain with the appropriate symbol in accordance with RSA 225-A:23, I(f), which sign shall warn the skier that the use of the terrain is at the skier’s own risk. Further, a sign shall be placed at each lift depicting the symbols in RSA 225-A:23, I(a)-(f) describing the trail or slope that the skier may encounter by utilizing such lift.
Nordic Ski Jumps. The operator shall provide a sign in a prominent location at or near the nordic ski jump facility, which sign shall warn the ski jumper that the use of the nordic ski jump is entirely at the ski jumper’s own risk. Further, the ski area operator shall be responsible for the design, construction, and structural maintenance of all nordic ski jumps.
225-A:24 Responsibilities of Skiers and Passengers.
It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing, snowboarding, snow tubing, and snowshoeing as sports, and the use of passenger tramways associated therewith may be hazardous to the skiers or passengers. Therefore:
Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; terrain, lift towers, and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.
Each skier and passenger shall have the sole responsibility for knowing the range of his or her own ability to negotiate any slope, trail, terrain, or passenger tramway. Any passenger who boards such tramway shall be presumed to have sufficient knowledge, abilities, and physical dexterity to negotiate the lift, and no liability shall attach to any operator or attendant for failure to instruct persons on the use thereof.
Each skier or passenger shall conduct himself or herself, within the limits of his or her own ability, maintain control of his or her speed and course at all times both on the ground and in the air, while skiing, snowboarding, snow tubing, and snowshoeing heed all posted warnings, and refrain from acting in a manner which may cause or contribute to the injury of himself, herself, or others.
Each passenger shall be the sole judge of his ability to negotiate any uphill track, and no action shall be maintained against any operator by reason of the condition of said track unless the board, upon appropriate evidence furnished to it, makes a finding that the condition of the track, at the time and place of an accident, did not meet the board’s requirements, provided however, that the ski area operator shall have had notice, prior to the accident, of the board’s requirements the violation of which is claimed to be the basis for any action by the passenger.
No skier, passenger or other person shall:
Embark or disembark upon a passenger tramway except at designated areas.
Throw or drop any object while riding on a passenger tramway nor do any act or thing which shall interfere with the running of said tramway.
Engage in any type of conduct which will contribute to cause injury to any other person nor shall he willfully place any object in the uphill ski track which may cause another to fall, while riding in a passenger tramway.
Ski or otherwise use a slope or trail which has been designated “closed” by the operator without written permission of said operator or designee.
Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail board by the operator.
Cross the uphill track of a J bar, T bar, rope tow, wire rope, or similar device except at locations approved by the board.
Ski or otherwise access terrain outside open and designated ski trails and slopes or beyond ski area boundaries without written permission of said operator or designee.
225-A:25 Insurance; Limitations.
Unless an operator of a passenger tramway is in violation of this chapter or the rules of the board, which violation is causal of the injury complained of, no action shall lie against any operator by any passenger or his or her representative; this prohibition shall not, however, prevent the maintenance of an action against an operator for negligent operation, construction, or maintenance of the passenger tramway itself.
Except as limited by paragraph III, each operator of a passenger tramway shall maintain liability insurance with limits of not less than $300,000 per accident.
The requirements of paragraph II shall not apply to an operator of a passenger tramway which is not open to the general public and operated without charge to users. Nonprofit ski clubs, outing clubs, or other similar organizations, which are operators of rope or wire rope tows shall also be excepted from the requirements of paragraph II if the organization’s bylaws so provide, each member of the organization is provided with a copy of such bylaws, and use of the rope or wire rope tows operated by the organization is restricted to members of that organization. This paragraph shall not relieve the state or any political subdivision operating a rope or wire rope tow from the requirement of maintaining liability insurance in accordance with paragraph II.
No action shall be maintained against any operator for injuries to any skier or passenger unless the same is commenced within 2 years from the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by certified return receipt mail within 90 days of said injury. The venue of any action against an operator shall be in the county where the ski area is located and not otherwise.
No ski area operator shall be held responsible for ensuring the safety of, or for damages including injury or death resulting to, skiers or other persons who utilize the facilities of a ski area to access terrain outside open and designated ski trails. Ski areas shall not be liable for damages, including injury or death, to persons who venture beyond such open and designated ski trails.
A ski area operator owes no duty to anyone who trespasses on the ski area property.
225-A:26 Penalty.
Any person convicted of operating a passenger tramway without having been registered by the board, or violating this chapter or rules of the board shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person. Any operator who operates after his registration has been suspended by the board, shall be guilty of a violation for each day of illegal operation.
227:14 Reduced Rates.
All season passes, including those for different age groups or military service, established by the department for the specific use of the winter facilities at Cannon Mountain aerial tramway and ski area shall be made available to any resident of this state at a 25 percent discount. For the purposes of this section, “resident of this state” means a person whose domicile is in this state. To qualify for the discount, a resident shall provide proof of residency and purchase the pass prior to December 15 of the year in which the pass becomes effective. Proof of residency shall include a state issued driver’s license; a state issued I.D. card with a photograph or information including name, sex, date of birth, height, weight and color of eyes; a United States passport; an affidavit certifying residency from the municipal clerk of the purchasers’ town or city of residence; or, for a person less than 18 years of age, proof of a parent’s or guardian’s residency provided by the resident parent or guardian. The commissioner of the department of resources and economic development shall make quarterly reports on season passes issued under this section to the senate president, the speaker of the house of representatives, and the governor and council.
Nevada Skier Safety Act
Posted: July 22, 2013 Filed under: Nevada, Ski Area, Skiing / Snow Boarding | Tags: Law, Nevada, Nevada Skier Safety Act, Recreation and Sports, Ski, ski area, Ski Area Safety Act, Ski Resort, Skier, Snow, Snowboard, Snowboarder Leave a commentNevada Skier Safety Act
1.1 NEVADA REVISED STATUTES ANNOTATED
TITLE 40. Public Health And Safety.
CHAPTER 455A. Safety of Participants in Outdoor Sports.
Skiers and Snowboarders
GO TO NEVADA STATUTES ARCHIVE DIRECTORY
Nev. Rev. Stat. Ann. § 455A.023 (2012)
Table of Contents
455A.023. “Chair lift” defined. 3
455A.027. “Operator” defined. 3
455A.030. “Passenger” defined. 3
455A.083. “Snow recreation area” defined. 4
455A.085. “Snowboarder” defined. 5
455A.087. “Snowboarding” defined. 5
455A.090. “Surface lift” defined. 5
455A.110. Duties of skiers and snowboarders. 6
455A.130. Signs at chair lifts: Requirements; inspection. 7
455A.150. Illumination of signs at night. 8
455A.180. Revocation of license or privilege to engage in skiing or snowboarding. 10
455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter. 10
455A.010. Short title.
NRS 455A.010 to 455A.190, inclusive, may be cited as the Skier and Snowboarder Safety Act.
455A.020. Definitions.
As used in NRS 455A.010 to 455A.190, inclusive, unless the context otherwise requires, the words and terms defined in NRS 455A.023 to 455A.090, inclusive, have the meanings ascribed to them in those sections.
455A.023. “Chair lift” defined.
“Chair lift” means a device, except for an elevator, that carries, pulls or pushes a person along a level or inclined path to, from or within a snow recreation area by means of a rope, cable or other flexible element that is driven by an essentially stationary source of power.
455A.027. “Operator” defined.
“Operator” means a person, or a governmental agency or political subdivision of this State, who controls or operates an area where persons engage in skiing or snowboarding.
455A.030. “Passenger” defined.
“Passenger” means a person who utilizes a chair lift for transportation.
455A.035. “Patrol” defined.
“Patrol” means agents or employees of an operator who patrol the snow recreation area.
455A.040. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.083.
455A.050. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.023.
455A.060. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.035.
455A.070. “Skier” defined.
“Skier” means a person who engages in skiing in a snow recreation area.
455A.075. “Skiing” defined.
“Skiing” means the act of using skis to move across snow-covered ground.
455A.080. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.027.
455A.083. “Snow recreation area” defined.
“Snow recreation area” means the slopes, trails, runs and other areas under the control of an operator that are intended to be used for skiing, snowboarding or for the observation of the sports.
455A.085. “Snowboarder” defined.
“Snowboarder” means a person who engages in snowboarding in a snow recreation area.
455A.087. “Snowboarding” defined.
“Snowboarding” means the act of using a snowboard to move across snow-covered ground.
455A.090. “Surface lift” defined.
“Surface lift” means a chair lift designed for skiers or snowboarders to remain in contact with the ground or snowy surface during transportation.
455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited.
A skier or snowboarder shall not:
1. Embark upon a chair lift:
(a) When the skier or snowboarder knows that he or she has insufficient knowledge or physical ability to use the chair lift safely; or
(b) That is posted as closed or not in operation;
2. Purposefully embark upon or disembark from a chair lift except at an area designated for such a purpose or at the direction and under the direct supervision of an authorized agent or employee of an operator;
3. Toss, throw or cast or intentionally drop, expel or eject an object from a chair lift;
4. Toss, throw or cast an object in the direction of a chair lift;
5. Fail or refuse to comply with:
(a) Reasonable instructions given to the skier or snowboarder by an authorized agent or employee of an operator regarding the use of a chair lift; or
(b) A sign posted pursuant to NRS 455A.130 or 455A.140;
6. Place any object in the uphill path of a surface lift;
7. Conduct himself or herself in a manner that interferes with the safe operation of a chair lift or with the safety of a passenger, skier or snowboarder; or
8. Engage in skiing or snowboarding in an area within the snow recreation area which is posted, as provided in NRS 207.200, as closed.
455A.110. Duties of skiers and snowboarders.
A skier or snowboarder shall, to the extent that the matter is within his or her control:
1. Locate and ascertain the meaning of signs in the vicinity of the skier or snowboarder posted pursuant to NRS 455A.130 and 455A.140;
2. Heed warnings and other information posted by an operator;
3. Remain a safe distance from vehicles, signs and equipment for grooming snow or for transportation;
4. Avoid skiers or snowboarders in motion when entering a slope, run or trail, and when commencing to engage in skiing or snowboarding from a stationary position;
5. Maintain a proper lookout and control of his or her speed to avoid downhill objects, skiers and snowboarders to the best of his or her ability; and
6. Conduct himself or herself in such a manner as to avoid injury to persons and property in a snow recreation area.
455A.120. Prohibited acts.
A skier or snowboarder shall not:
1. Use a ski or snowboard unless it is attached to the skier or snowboarder by a strap or equipped with a device capable of stopping the movement of the ski or snowboard when not attached to the skier or snowboarder;
2. Cross the uphill path of a surface lift except at locations designated by an operator; or
3. Willfully stop where the skier or snowboarder obstructs a slope, run or trail, or where he or she is not safely visible to uphill skiers or snowboarders.
455A.130. Signs at chair lifts: Requirements; inspection.
1. An operator shall prominently post and maintain signs in simple and concise language:
(a) By each chair lift, with information for the protection and instruction of passengers; and
(b) At or near the points where passengers are loaded on a chair lift, directing persons who are not familiar with the operation of the chair lift to ask an authorized agent or employee of the operator for assistance and instruction.
2. An operator shall prominently post and maintain signs with the following inscriptions at all chair lifts in the locations indicated:
(a) “Remove pole straps from wrists” at an area for loading skiers;
(b) “Safety gate” where applicable;
(c) “Stay on tracks” where applicable;
(d) “Keep ski tips or snowboard up” ahead of any point where a ski or snowboard can regain contact with the ground or snowy surface after a passenger departs from an area for loading skiers or snowboarders;
(e) “Prepare to unload” and “check for loose clothing and equipment” not less than 50 feet from an area for unloading skiers or snowboarders; and
(f) “Unload here” at an area for unloading skiers or snowboarders.
3. An operator shall inspect a snow recreation area for the presence and visibility of the signs required to be posted by this section each day before opening the snow recreation area for business.
455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light.
1. An operator shall post and maintain a system of signs:
(a) At the entrances to an established slope, run or trail to indicate:
(1) Whether any portion of the slope, run or trail is closed; and
(2) The relative degree of difficulty of the slope, run or trail;
(b) To indicate the boundary of the snow recreation area, except in heavily wooded areas or other terrain that cannot be skied or snowboarded readily; and
(c) To warn of each area within the boundary of the snow recreation area where there is a danger of avalanche by posting signs stating “Warning: Avalanche Danger Area.”
2. An operator shall equip vehicles it uses on or in the vicinity of a slope, run or trail with a light visible to skiers or snowboarders when the vehicle is in motion.
455A.150. Illumination of signs at night.
A sign required to be posted pursuant to NRS 455A.130; and 455A.140 must be adequately illuminated at night, if the snow recreation area is open to the public at night, and be readable and recognizable under ordinary conditions of visibility.
455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers.
1. A skier or snowboarder who sustains a personal injury shall notify the operator or a member of the patrol of the injury as soon as reasonably possible after discovery of the injury.
2. An operator is not liable for the death or injury of a person or damages to property caused or sustained by a skier or snowboarder who knowingly enters an area which is not designated for skiing or snowboarding or which is outside the boundary of a snow recreation area.
3. An operator shall take reasonable steps to minimize dangers and conditions within the operator’s control.
455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty.
1. A skier or snowboarder shall not engage in skiing or snowboarding, or embark on a chair lift that is proceeding predominantly uphill, while intoxicated or under the influence of a controlled substance as defined in chapter 453 of NRS unless in accordance with a lawfully issued prescription.
2. A skier or snowboarder who is involved in a collision in which another person is injured shall provide his or her name and current address to the injured person, the operator or a member of the patrol:
(a) Before the skier or snowboarder leaves the vicinity of the collision; or
(b) As soon as reasonably possible after leaving the vicinity of the collision to secure aid for the injured person.
3. A person who violates a provision of this section is guilty of a misdemeanor.
455A.180. Revocation of license or privilege to engage in skiing or snowboarding.
An operator may revoke the license or privilege of a person to engage in skiing or snowboarding in a snow recreation area if the person violates any provision of NRS 455A.100, 455A.110, 455A.120 or 455A.170.
455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter.
The provisions of NRS 455A.010 to 455A.190, inclusive, do not prohibit a county, city or unincorporated town from enacting an ordinance, not in conflict with the provisions of NRS 455A.010 to 455A.190, inclusive, regulating skiers, snowboarders or operators.
Michigan Ski Safety Act
Posted: July 22, 2013 Filed under: Michigan, Ski Area, Skiing / Snow Boarding | Tags: Michigan, Michigan Ski Safety Act, Ski, ski area, Ski lift, Ski Resort, Skier, Skier Safety Act, Snowboarder Leave a commentMichigan Ski Safety Act
MICHIGAN COMPILED LAWS SERVICE
CHAPTER 408 LABOR
SKI AREA SAFETY ACT OF 1962
Go to the Michigan Code Archive Directory
MCLS prec § 408.321 (2012)
MCL § 408.321
Table of Contents
§ 408.321. Ski area safety act of 1962; short title. 2
§ 408.323. Ski area safety board; creation; composition; qualifications; ex officio members. 5
§ 408.324. Ski area safety board; appointment and terms of members; vacancies. 5
§ 408.326. Rules; proposed legislation establishing fee schedule. 6
§ 408.326a. Duties of ski area operator. 6
§ 408.327. Promulgation of rules. 8
§ 408.328. Commissioner of labor; administration of act. 8
§ 408.329. Ski lifts; permits requirement, inspection. 8
§ 408.330. Ski lifts; temporary permits. 9
§ 408.331. Ski lifts; permits, issuance, expiration. 9
§ 408.332. Ski lifts; erection, alteration, moving, plans and specifications; rope tows. 9
§ 408.333. Ski lifts; order to cease operation. 10
§ 408.334. Ski lifts; existing installations. 10
§ 408.335. Ski lifts; rules and regulations, modification for hardship, record. 10
§ 408.336. Ski lifts; fees. 10
§ 408.337. Chief inspector; inspection service. 11
§ 408.338. Revenue; disbursements. 11
§ 408.339. Notice of public hearing. 12
§ 408.340. Violations; penalties; rules. 12
§ 408.341. Skier conduct; prohibited conduct in ski area. 13
§ 408.342. Duties of skier in ski area; acceptance of dangers. 13
§ 408.343. Accidents causing injury; notice; identification; misdemeanor; penalty. 16
§ 408.344. Violation of act; liability. 17
Preceding § 408.321
An act to provide for the inspection, licensing, and regulation of ski areas and ski lifts; to provide for the safety of skiers, spectators, and the public using ski areas; to provide for certain presumptions relative to liability for an injury or damage sustained by skiers; to prescribe the duties of skiers and ski area operators; to create a ski area safety board; to provide for the disposition of revenues; to provide for liability for damages which result from a violation of this act; to provide civil fines for certain violations of this act; and to provide criminal penalties for certain violations of this act. (Amended by Pub Acts 1981, No. 86, imd eff July 2, 1981; 1995, No. 120, imd eff June 30, 1995.)
§ 408.321. Ski area safety act of 1962; short title.
Sec. 1. This act shall be known and may be cited as the “ski area safety act of 1962”.
§ 408.322. Definitions.
Sec. 2. As used in this act:
(a) “Board” means the ski area safety board.
(b) “Commissioner” means the director of commerce or an authorized representative of the director.
(c) “Department” means the state department of commerce.
(d) “Operator” means a person who owns or controls, or who has operational responsibility for, a ski area or ski lift. An operator includes this state or a political subdivision of this state.
(e) “Passenger” means a person, skier or nonskier, who boards, disembarks from, or is transported by a ski lift, regardless of whether the ski lift is being used during the skiing season or nonskiing season, and includes a person waiting for or moving away from the loading or unloading point of a ski lift.
(f) “Ski area” means an area used for skiing and served by 1 or more ski lifts.
(g) “Skier” means a person wearing skis or utilizing a device that attaches to at least 1 foot or the lower torso for the purpose of sliding on a slope. The device slides on the snow or other surface of a slope and is capable of being maneuvered and controlled by the person using the device. Skier includes a person not wearing skis or a skiing device while the person is in a ski area for the purpose of skiing.
(h) “Ski lift” means a device for transporting persons uphill on skis, or in cars on tracks, or suspended in the air by the use of cables, chains, belts, or ropes, and usually supported by trestles or towers with 1 or more spans. Ski lift includes a rope tow.
§ 408.323. Ski area safety board; creation; composition; qualifications; ex officio members.
Sec. 3. A ski area safety board consisting of 7 members is created within the office of the commissioner. The board consists of 3 ski area managers, 1 from the Upper Peninsula and 2 from the Lower Peninsula; 1 engineer with skiing experience; 1 member of the central United States ski association, a nonprofit corporation; 1 person with skiing experience from the Upper Peninsula representing the general public; and 1 with skiing experience from the Lower Peninsula representing the general public. The commissioner and an officer of the Michigan tourist council are ex officio members of the board without vote.
§ 408.324. Ski area safety board; appointment and terms of members; vacancies.
Sec. 4. Members of the board shall be appointed by the governor with the advice and consent of the senate for terms of 4 years and until their successors are appointed and qualified. Vacancies in the board shall be filled for the unexpired term.
§ 408.325. Ski area safety board; conducting business at public meeting; notice; election of chairperson and other officers; quorum; meetings; compensation and expenses.
Sec. 5. (1) The business which the board may perform shall be conducted at a public meeting of the board held in compliance with Act No. 267 of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan Compiled Laws. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976. The board shall elect a chairperson and other officers it considers necessary to perform its duties between meetings. A majority of the 7 voting members shall constitute a quorum. The board shall meet not less than once yearly on the call of the chairperson or by written request of not less than 3 members.
(2) The per diem compensation of the members of the board, other than the commissioner, and the schedule for reimbursement of expenses shall be established annually by the legislature.
§ 408.326. Rules; proposed legislation establishing fee schedule.
Sec. 6. (1) The board shall promulgate rules for the safe construction, installation, repair, use, operation, maintenance, and inspection of all ski areas and ski lifts as the board finds necessary for protection of the general public while using ski areas and ski lifts. The rules shall be reasonable and based upon generally accepted engineering standards, formulas, and practices.
(2) The board, with the advice of the commissioner, shall propose legislation to establish the fee schedule for permits, inspections, and plan review activities. The fees shall reflect the actual costs and expenses of the department for issuing permits and conducting inspections and plan reviews.
§ 408.326a. Duties of ski area operator.
Sec. 6a. Each ski area operator shall, with respect to operation of a ski area, do all of the following:
(a) Equip each snow-grooming vehicle and any other authorized vehicle, except a snowmobile, with a flashing or rotating yellow light conspicuously located on the vehicle, and operate the flashing or rotating yellow light while the vehicle is moving on, or in the vicinity of, a ski run. A snowmobile operated in a ski area shall be operated with at least 1 operating white light located on the front of the snowmobile.
(b) Mark with a visible sign or other warning device the location of any hydrant or similar fixture or equipment used in snow-making operations located on a ski run, as prescribed by rules promulgated under section 20(3).
(c) Mark the top of or entrance to each ski run, slope, and trail to be used by skiers for the purpose of skiing, with an appropriate symbol indicating the relative degree of difficulty of the run, slope, or trail, using a symbols code prescribed by rules promulgated under section 20(3).
(d) Mark the top of or entrance to each ski run, slope, and trail which is closed to skiing, with an appropriate symbol indicating that the run, slope, or trail is closed, as prescribed by rules promulgated under section 20(3).
(e) Maintain 1 or more trail boards at prominent locations in each ski area displaying that area’s network of ski runs, slopes, and trails and the relative degree of difficulty of each ski run, slope, and trail, using the symbols code required under subdivision (c) and containing a key to that code, and indicating which runs, slopes, and trails are open or closed to skiing.
(f) Place or cause to be placed, if snow-grooming or snow-making operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.
(g) Post the duties of skiers and passengers as prescribed in sections 21 and 22 and the duties, obligations, and liabilities of operators as prescribed in this section in and around the ski area in conspicuous places open to the public.
(h) Maintain the stability and legibility of all required signs, symbols, and posted notices.
§ 408.327. Promulgation of rules.
Sec. 7. The rules shall be promulgated pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws.
§ 408.328. Commissioner of labor; administration of act.
Sec. 8. The commissioner, subject to the limitations herein contained and the rules and regulations of the board, shall administer and enforce the provisions of this act.
§ 408.329. Ski lifts; permits requirement, inspection.
Sec. 9. No person shall operate a ski lift without a permit issued by the commissioner. On or before October 1 of each year an operator shall apply for a permit to the commissioner on a form furnished by the commissioner and containing such information as the board may require. All ski lifts shall be inspected before they are originally put into operation for the public’s use and thereafter at least once every 12 months, unless permitted to operate on a temporary permit.
§ 408.330. Ski lifts; temporary permits.
Sec. 10. The commissioner may issue a temporary permit for 30 calendar days to an operator, who has previously been operating in this state on a regular or annual basis, to continue operation. An inspection of his ski lifts shall be made within 30 days from the issuance of the permit. A ski lift inspected and covered by a permit in the preceding year may operate on a temporary basis until further inspected.
§ 408.331. Ski lifts; permits, issuance, expiration.
Sec. 11. If upon inspection a ski lift is found to comply with the rules and regulations of the board, the commissioner shall issue a permit to operate. A permit shall expire on September 30 of the following year.
§ 408.332. Ski lifts; erection, alteration, moving, plans and specifications; rope tows.
Sec. 12. Before a new ski lift is erected, or before a presently existing ski lift is moved to a different location, or whenever any additions or alterations are made which change the structure, mechanism, classification or capacity of any ski lift, the operator shall file with the department detailed, duplicate plans and specifications of such work. The plans and specifications shall be prepared by a qualified tramway firm or by an engineer, licensed in this state as a professional engineer, in accordance with Act No. 240 of the Public Acts of 1937, as amended, being sections 338.551 to 338.576 of the Compiled Laws of 1948. Upon approval of plans and specifications, the department shall issue a permit for such work. All rope tows shall be excluded from this section.
§ 408.333. Ski lifts; order to cease operation.
Sec. 13. The commissioner or board may order, in writing, a temporary cessation of operation of a ski lift if it has been determined after inspection to be hazardous or unsafe. Operation shall not resume until such conditions are corrected to the satisfaction of the commissioner or board.
§ 408.334. Ski lifts; existing installations.
Sec. 14. This act shall not be construed to prevent the use of any existing installation, upon inspection found to be in a safe condition and to conform with the rules and regulations of the board.
§ 408.335. Ski lifts; rules and regulations, modification for hardship, record.
Sec. 15. If there are practical difficulties or unnecessary hardships for an operator to comply with the rules and regulations under this act, the commissioner, with the approval of the board, may modify the application of such rules or regulations to such a situation, if the spirit of the provisions shall be observed and the public safety is secured. Any operator may make a written request to the board stating his grounds and applying for such modification. Any authorization by the commissioner and the board shall be in writing and shall describe the conditions under which the modification is permitted. A record of all modifications shall be kept in the department and open to the public.
§ 408.336. Ski lifts; fees.
Sec. 16. (a) An application for a permit shall be accompanied by fees of:
$25.00 for an annual permit; or
$2.00 for each rope tow,
$5.00 for each T bar, J bar or platter pull,
$15.00 for each chair lift or skimobile, and
$30.00 for each aerial tramway,
if greater than the $25.00 annual permit fee.
(b) Inspection fees shall be as follows:
$8.00 for each rope tow,
$20.00 for each T bar, J bar or platter pull,
$60.00 for each chair lift or skimobile,
$120.00 for each aerial tramway, and
$50.00 for reinspections or special inspections at an operator’s request.
Any operator may employ any person, partnership or corporation, approved by the commissioner and board, to make the inspections. Inspections made by any person, partnership, or corporation, that may be employed by an operator, shall be on forms furnished or approved by the department. Inspection fees shall be waived when the annual permit application is accompanied by such an inspection report.
(c) Fees for review and approval of plans prior to construction shall be $200.00 for a chair lift, T bar, J bar, platter pull or tramway.
Fees for review and approval of plans for modification and alteration of an existing lift shall be $50.00.
(d) Fees shall be paid to the department, which shall give receipts therefor.
§ 408.337. Chief inspector; inspection service.
Sec. 17. The department, with the advice and consent of the board, shall employ or retain a person qualified in engineering and training who shall be designated chief inspector. The chief inspector and such additional inspectors and other employees as may be necessary to properly administer this act may be hired on a temporary basis or borrowed from other state departments, or the department may contract with persons, partnerships or corporations for such inspection services on an independent basis.
§ 408.338. Revenue; disbursements.
Sec. 18. All fees for permits or inspections, or any other income received under this act, shall be paid into the general fund. All salaries and other moneys expended under this act shall be paid by the state treasurer from a fund appropriated by the legislature.
§ 408.339. Notice of public hearing.
Sec. 19. (1) In addition to the notice prescribed in section 5(1) notice of a public hearing held under this act shall be published not less than once and not less than 10 days before the hearing, in newspapers of general circulation prescribed by the commissioner.
§ 408.340. Violations; penalties; rules.
Sec. 20. (1) Except for sections 21 to 24, and except as provided in subsection (2), a person who violates this act, or a rule or order promulgated or issued pursuant to this act, or a person who interferes with, impedes, or obstructs the commissioner, an authorized representative of the commissioner, or a board member in the performance of duties prescribed by this act, is guilty of a misdemeanor. Each day a violation or other act continues shall be considered a separate offense.
(2) A member of the board who intentionally violates section 5(1) shall be subject to the penalties prescribed in Act No. 267 of the Public Acts of 1976, as amended.
(3) Not more than 270 days after the effective date of this subsection, the board shall, pursuant to section 7, promulgate rules consistent with this act to implement this act, except for subsection (2) and sections 21, 22, 23, and 24, not to exceed $50.00 for each violation.
§ 408.341. Skier conduct; prohibited conduct in ski area.
Sec. 21. (1) A skier shall conduct himself or herself within the limits of his or her individual ability and shall not act or ski in a manner that may contribute to his or her injury or to the injury of any other person. A skier shall be the sole judge of his or her ability to negotiate a track, trail, or slope.
(2) While in a ski area, a skier or passenger shall not do any of the following:
(a) Board a ski lift which has been designated as closed.
(b) Wilfully board or embark upon, or disembark from, a ski lift, except at an area designated for those purposes.
(c) Intentionally drop, throw, or expel an object from a ski lift while riding on the lift.
(d) Do any act which interferes with the running or operation of a ski lift, such as, but not limited to: swinging or bouncing on an aerial lift, attempting to contact supporting towers, machinery, guides, or guards while riding on a ski lift; or skiing out of the designated ski track on a surface lift or tow.
(e) Use a ski lift, unless the skier or passenger has the ability to use the lift safely without instruction on use of the lift by a ski area owner, manager, operator, or employee, or unless the skier or passenger requests and receives instruction before entering the boarding area of the ski lift.
(f) Use a ski lift or ski without properly engaging and using ski restraining devices, brakes, or restraining straps.
§ 408.342. Duties of skier in ski area; acceptance of dangers.
Sec. 22. (1) While in a ski area, each skier shall do all of the following:
(a) Maintain reasonable control of his or her speed and course at all times.
(b) Stay clear of snow-grooming vehicles and equipment in the ski area.
(c) Heed all posted signs and warnings.
(d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e).
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
§ 408.343. Accidents causing injury; notice; identification; misdemeanor; penalty.
Sec. 23. (1) A skier involved in an accident causing an injury to another person shall to the extent that he or she is reasonably able to do so immediately notify the ski patrol or the operator, or law enforcement or emergency personnel, and shall clearly identify himself or herself. A skier who wilfully fails to give identification after involvement in a skiing accident with another person, or a skier who is reasonably able to do so who fails to notify the proper authorities or to obtain assistance when the skier knows that another person involved in the accident is in need of medical or other assistance, is guilty of a misdemeanor, punishable by imprisonment for not more than 30 days, or a fine of not more than $100.00, or both.
(2) A skier involved in an accident causing an injury to himself or herself, but not to another person, shall immediately notify the ski patrol or the operator, or law enforcement or emergency personnel, if the accident created a known hazardous condition in the area where the accident occurred.
§ 408.344. Violation of act; liability.
Sec. 24. A skier or passenger who violates this act, or an operator who violates this act shall be liable for that portion of the loss or damage resulting from that violation.
Idaho Ski Safety Act
Posted: July 22, 2013 Filed under: Idaho, Skiing / Snow Boarding | Tags: Alpine skiing, Idaho, Idaho Ski Safety Act, Outdoors, Recreation, Ski, ski area, Ski Resort, Ski Safety Act, Skier, Snowboarder Leave a commentIdaho Ski Safety Act
IDAHO CODE
CODE OF CIVIL PROCEDURE
TITLE 6. ACTIONS IN PARTICULAR CASES
CHAPTER 11. RESPONSIBILITIES AND LIABILITIES OF SKIERS AND SKI AREA OPERATORS
Go to the Idaho Code Archive Directory
Idaho Code § 6-1101 (2012)
§ 6-1101. Legislative purpose
The legislature finds that the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operation, it is the purpose of this chapter to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury, and to define those risks which the skier expressly assumes and for which there can be no recovery.
HISTORY: I.C., § 6-1101, as added by 1979, ch. 270, § 1, p. 701.
NOTES:
ANALYSIS
When the legislature stated the legislative purpose of this chapter, it included the statement that “the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho,” and since this was a legitimate legislative goal and satisfies the rational basis test, this chapter does not violate the equal protection clause of the constitution. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
The government of Idaho clearly has a legitimate interest in promoting the sport of skiing, because the sport “significantly contribut[es] to the economy of Idaho.” This chapter bears a rational relationship to this interest because it clarifies the allocation of risks and responsibilities between ski area operators and skiers. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).
This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
CITED IN: Kirkland ex rel. Kirkland v. Blain County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000).
§ 6-1102. Definitions
The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section.
(1) “Aerial passenger tramway” means any device operated by a ski area operator used to transport passengers, by single or double reversible tramway; chair lift or gondola lift; T-bar lift, J-bar lift, platter lift or similar device; or a fiber rope tow, which is subject to regulations adopted by the proper authority.
(2) “Passenger” means any person who is lawfully using an aerial passenger tramway, or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.
(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho.
(4) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area or aerial passenger tramway.
(5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway.
(6) “Skier” means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include the use of an aerial passenger tramway.
(7) “Ski slopes and trails” mean those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing.
HISTORY: I.C., § 6-1102, as added by 1979, ch. 270, § 1, p. 701.
NOTES:
§ 6-1103. Duties of ski area operators with respect to ski areas
Every ski area operator shall have the following duties with respect to their operation of a skiing area:
(1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights which shall be in operation whenever the vehicles are working or are in movement in the skiing area;
(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails;
(3) To mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty; and those slopes, trails, or areas which are closed, shall be so marked at the top or entrance;
(4) To maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated thereon as to it [its] relative degree of difficulty;
(5) To designate by trail board or otherwise which trails or slopes are open or closed;
(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope;
(7) To post notice of the requirements of this chapter concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices;
(8) To provide a ski patrol with qualifications meeting the standards of the national ski patrol system;
(9) To post a sign at the bottom of all aerial passenger tramways which advises the passengers to seek advice if not familiar with riding the aerial passenger tramway; and
(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.
HISTORY: I.C., § 6-1103, as added by 1979, ch. 270, § 1, p. 701.
NOTES: COMPILER’S NOTES. The national ski patrol provides training and education programs for emergency rescuers serving the outdoor recreation community. See http://www.nsp.org.
The bracketed word “its” in subsection (4) was inserted by the compiler.
When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).
Under this chapter, a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).
Setting up a NASTAR race course is a normal part of running a ski area, and thus, anything a ski area does to eliminate or lessen the inherent risks of skiing in connection with setting up the race course or protecting skiers from hazardous obstacles cannot be the basis of liability for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).
Under § 6-1106, anyone who strikes a ski lift tower while skiing is considered to have expressly assumed the risk and legal responsibility for any injury which results, and in addition, under subsection (10) of this section, anything a ski area operator does to eliminate, alter, control or lessen the risks associated with lift towers — such as placing a fence around a tower or padding it — could not result in the operator being held liable for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).
Ski area operator owed amateur race skier no duty to reduce the risk of his striking and injuring himself on a lift tower. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).
If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in this section and § 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in this section and § 6-1104 or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
While one of the duties imposed on ski area operators by this section is to mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty, even assuming that a ski area operator may not have properly located a sign or properly designed, constructed or padded the signpost, this chapter excludes any liability of ski area operator to the plaintiffs as a result of these activities; while subdivision (3) of this section did require ski area operator to mark the entrance to each of its slopes, trails or areas, subsection (10) of this section negates any duty to accomplish this marking to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
The duties described in this section and § 6-1104 are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care, and in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).
In conducting training sessions, the defendant foundation did not have the responsibility to fulfill the duties under this section; the mere fact that the defendant foundation set up the course within the ski area did not make them a “ski operator.” By setting up the course the defendant foundation was not engaged in any duties or activities of a “ski area operator.” By making use of the ski area for training, defendant foundation did not exercise “operational responsibility” for the ski area, and the court correctly denied defendant’s summary judgment on that basis. Davis v. Sun Valley Ski Educ. Found., Inc., 130 Idaho 400, 941 P.2d 1301 (1997).
A ski area operator does not have the duty to provide a ski patrol that will determine the identity of a skier who was involved in a ski accident with another skier. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
An injury to the body caused by falling while skiing in an unmarked, ungroomed area is an inherent risk of skiing and a ski resort had no duty to take some kind of affirmative steps to have prevented skier from being injured. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).
§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways
Every ski area operator shall have the duty to construct, operate, maintain and repair any aerial passenger tramway in accordance with the American national standards safety requirements for aerial passenger tramways.
HISTORY: I.C., § 6-1104, as added by 1979, ch. 270, § 1, p. 701.
NOTES: COMPILER’S NOTES. The American national standards institute’s current publication covering tramway safety is ANSI B77.1-2006, “Passenger Ropeway & Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirement.”
ANALYSIS
In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).
If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in § 6-1103 and this section are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in § 6-1103 and this section or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
The duties described in § 6-1103 and this section are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care; in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).
§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways
Every ski area operator shall have the duty to construct, operate, maintain and repair any aerial passenger tramway in accordance with the American national standards safety requirements for aerial passenger tramways.
HISTORY: I.C., § 6-1104, as added by 1979, ch. 270, § 1, p. 701.
NOTES: COMPILER’S NOTES. The American national standards institute’s current publication covering tramway safety is ANSI B77.1-2006, “Passenger Ropeway & Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirement.”
In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).
If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in § 6-1103 and this section are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in § 6-1103 and this section or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
The duties described in § 6-1103 and this section are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care; in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).
§ 6-1105. Duties of passengers
Every passenger shall have the duty not to:
(1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;
(2) Drop, throw or expel any object from an aerial passenger tramway;
(3) Do any act which shall interfere with the running or operation of an aerial passenger tramway;
(4) Use any aerial passenger tramway if the passenger does not have the ability to use it safely without instruction until the passenger has requested and received sufficient instruction to permit safe usage;
(5) Embark on an aerial passenger tramway without the authority of the ski area operator;
(6) Use any aerial passenger tramway without engaging such safety or restraining devices as may be provided.
HISTORY: I.C., § 6-1105, as added by 1979, ch. 270, § 1, p. 701.
NOTES:
§ 6-1106. Duties of skiers
It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken.
Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone. The responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.
No person shall place any object in the skiing area or on the uphill track of any aerial passenger tramway which may cause a passenger or skier to fall; cross the track of any T-bar lift, J-bar lift, platter lift or similar device, or a fiber rope tow, except at a designated location; or depart when involved in a skiing accident, from the scene of the accident without leaving personal identification, including name and address, before notifying the proper authorities or obtaining assistance when that person knows that any other person involved in the accident is in need of medical or other assistance.
No skier shall fail to wear retention straps or other devices to help prevent runaway skis.
HISTORY: I.C., § 6-1106, as added by 1979, ch. 270, § 1, p. 701.
NOTES:
§ 6-1107. Liability of ski area operators
Any ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in sections 6-1103 and 6-1104, Idaho Code, where the violation of duty is causally related to the loss or damage suffered. The ski area operators shall not be liable to any passenger or skier acting in violation of their duties as set forth in sections 6-1105 and 6-1106, Idaho Code, where the violation of duty is causally related to the loss or damage suffered; nor shall a ski area operator be liable for any injury or damage to a person who is not legally entitled to be in the ski area; or for any loss or damages caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway.
HISTORY: I.C., § 6-1107, as added by 1979, ch. 270, § 1, p. 701.
NOTES:
When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).
This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in §§ 6-1103 and 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).
An injury to the body caused by falling while skiing in an unmarked, ungroomed area is an inherent risk of skiing and a ski resort had no duty to take some kind of affirmative steps to have prevented skier from being injured. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).
§ 6-1108. Liability of passengers
Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1105, Idaho Code, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.
HISTORY: I.C., § 6-1108, as added by 1979, ch. 270, § 1, p. 701.
NOTES:
§ 6-1109. Liability of skiers
Any skier shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1106, Idaho Code, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.
HISTORY: I.C., § 6-1109, as added by 1979, ch. 270, § 1, p. 701.
NOTES:
A.L.R.
Skier’s liability for injuries to or death of another person. 75 A.L.R.5th 583.
Hawaii Recreational Activity Liability
Posted: July 22, 2013 Filed under: Hawaii | Tags: Hawaii, Hawaii Recreational Liability Act, Recreation Leave a commentDIVISION 4. COURTS AND JUDICIAL PROCEEDINGS
TITLE 36 Civil Remedies And Defenses And Special Proceedings
CHAPTER 663 Tort Actions
PART I. Liability; Survival of Actions
Go to the Hawaii Code Archive Directory
HRS § 663-1.54 (2013)
§ 663-1.54. Recreational activity liability.
(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.
(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:
(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and
(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.
(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:
(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;
(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and
(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.
Maine Ski Area Safety Act
Posted: July 22, 2013 Filed under: Maine, Ski Area, Skiing / Snow Boarding | Tags: MAINE, Maine Ski Area Safety Act, ski area, Ski Safety Act, Skier Snowboarder Leave a commentMaine Ski Area Safety Act
TITLE 14. COURT PROCEDURE–CIVIL
PART 2. PROCEEDINGS BEFORE TRIAL
CHAPTER 205. LIMITATION OF ACTIONS
SUBCHAPTER 1. GENERAL PROVISIONS
GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY
14 M.R.S. § 752-B (2012)
§ 752-B. Ski areas
All civil actions for property damage, bodily injury or death against a ski area owner or operator or tramway owner or operator or its employees, as defined under Title 32, chapter 133, whether based on tort or breach of contract or otherwise, arising out of participation in skiing or hang gliding or the use of a tramway associated with skiing or hang gliding must be commenced within 2 years after the cause of action accrues.
TITLE 32. PROFESSIONS AND OCCUPATIONS
CHAPTER 133. BOARD OF ELEVATOR AND TRAMWAY SAFETY
GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY
§ 15201. Declaration of policy
It is the policy of the State to protect its citizens and visitors from unnecessary mechanical hazards in the operation of elevators and tramways and to ensure that reasonable design and construction are used, that accepted safety devices and sufficient personnel are provided and that periodic maintenance, inspections and adjustments considered essential for the safe operation of elevators and tramways are made. The responsibility for design, construction, maintenance and inspection rests with the firm, person, partnership, association, corporation or company that owns elevators or tramways.
32 M.R.S. § 15202 (2012)
§ 15202. Definitions.
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. APPROVED. “Approved” means as approved by the Board of Elevator and Tramway Safety.
2. BOARD. “Board” means the Board of Elevator and Tramway Safety.
2-A. CHIEF INSPECTOR. “Chief inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways and who has been designated as chief inspector by the Commissioner of Professional and Financial Regulation.
3. COMMISSIONER. “Commissioner” means the Commissioner of Professional and Financial Regulation.
4. DEPARTMENT. “Department” means the Department of Professional and Financial Regulation.
4-A. DEPUTY INSPECTOR. “Deputy inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways under the direction of the chief inspector.
4-B. DIRECT SUPERVISION. “Direct supervision” means that a helper is working in the presence of a licensed elevator or lift mechanic at all times.
4-C. DIRECTOR. “Director” means the Director of the Office of Licensing and Registration.
5. ELEVATOR. “Elevator” includes an escalator or a manlift and means a guided hoisting and lowering mechanism equipped with a car, platform or load-carrying unit, including doors, well, enclosures, means and appurtenances. “Elevator” does not include an inclined stairway chairlift, a conveyor, chain or bucket hoist or a tiering, piling or feeding device. For the purposes of this subsection, “inclined stairway chairlift” means a mechanized chair apparatus running on a track or rail along the side of a staircase.
5-A. ELEVATOR CONTRACTOR. “Elevator contractor” means any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State.
6. ESCALATOR. “Escalator” means a power-driven, inclined and continuous stairway used for raising or lowering passengers.
7. REPEALED. Laws 2001, c. 573, § B-3.
7-A. HELPER. “Helper” means a person who is not licensed under this chapter as an elevator mechanic or lift mechanic and who assists in the installation, service or maintenance of elevators located in this State while working under the direct supervision of a licensed elevator mechanic or licensed lift mechanic.
7-B. LICENSED PRIVATE ELEVATOR INSPECTOR. “Licensed private elevator inspector” or “licensed private elevator and lift inspector” means an individual who has been licensed by the board to inspect elevators pursuant to this chapter and who is not a state employee whose duty is to inspect elevators.
8. LICENSED PRIVATE TRAMWAY INSPECTOR. “Licensed private tramway inspector” means an individual who has been licensed by the Board of Elevator and Tramway Safety to inspect tramways pursuant to this chapter and who is not a state employee whose duty is to inspect tramways.
9. MANLIFT. “Manlift” means a device, consisting of a power-driven, endless belt or chains, provided with steps or platforms and handholds attached to it for the transportation of personnel from floor to floor.
10. OPERATOR. “Operator” means the person or persons who physically operate an elevator or tramway.
11. OWNER. “Owner” means a firm, person, partnership, association, corporation or state or political subdivision that owns an elevator or tramway.
12. REPEALED. Laws 2001, c. 573, § B-6.
13. PHYSICALLY HANDICAPPED PERSON. “Physically handicapped person” means a person who has a physiological disability, infirmity, malformation, disfigurement or condition that eliminates or severely limits the person’s ability to have access to the person’s environment by normal ambulatory function, necessitating the use of crutches, a wheelchair or other similar device for locomotion.
14. SKIER. “Skier” means any person who engages in any of the activities described in section 15217, subsection 1, paragraph B.
15. SKI AREA. “Ski area” means the ski slopes and trails, adjoining skiable terrain, areas designated by the ski area operator to be used for skiing as defined by section 15217, subsection 1, paragraph B and passenger tramways administered or operated as a single enterprise within this State.
16. SKI INDUSTRY. “Ski industry” means the activities of all ski area operators.
17. SKI AREA OPERATOR. “Ski area operator” means a person or organization having operational responsibility for a ski area, including an agency or a political subdivision of this State.
18. REPEALED. Laws 2001, c. 573, § B-8.
19. TRAMWAY. “Tramway” means a device used to transport passengers uphill on skis or in cars on tracks or suspended in the air by the use of steel cables, chains or belts or by ropes usually supported by trestles or towers with one or more spans. “Tramway” includes the following:
A. Reversible aerial tramways, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals. This class includes:
1) Single-reversible tramways, which are a type of reversible lift or aerial tramway having a single carrier, or single group of carriers, that moves back and forth between terminals on a single path of travel, sometimes called “to-and-fro” aerial tramways; and
2) Double-reversible tramways, which are a type of reversible lift or aerial tramway having 2 carriers, or 2 groups of carriers, that oscillate back and forth between terminals on 2 separate paths of travel, sometimes called “jig-back” aerial tramways;
B. Aerial lifts and skimobiles, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers circulate around a closed system and are activated by a wire rope or chain. The carriers usually make U-turns in the terminals and move along parallel and opposing paths of travel. The carriers may be open or enclosed cabins, chairs, cars or platforms. The carriers may be fixed or detachable. This class includes:
1) Gondola lifts, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cabins. The passengers embark and disembark while the carriers are stationary or moving slowly under a controlled arrangement;
2) Chair lifts, which are a type of lift or aerial tramway by which passengers are transported in chairs, either open or partially enclosed; and
3) Skimobiles, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cars that ride on a rigid structural system and are propelled by a wire rope or chain;
C. Surface lifts, which are that class of conveyance by which passengers are propelled by means of a circulating overhead wire rope while remaining in contact with the ground or snow surface. Transportation is limited to one direction. Connection between the passengers and the wire rope is by means of a device attached to and circulating with the haul rope known as a “towing outfit.” This class includes:
1) T-bar lifts, which are a type of lift in which the device between the haul rope and passengers forms the shape of an inverted “T,” propelling passengers located on both sides of the stem of the “T”;
2) J-bar lifts, which are a type of lift in which the device between the haul rope and passenger is in the general form of a “J,” propelling a single passenger located on the one side of the stem of the “J”; and
3) Platter lifts, which are a type of lift in which the device between the haul rope and passenger is a single stem with a platter or disk, attached to the lower end of the stem, propelling the passenger astride the stem of the platter or disk;
D. Tows, which are that class of conveyance in which passengers grasp a circulating haul rope, which may be natural or synthetic fiber or metallic, or a handle or gripping device attached to the circulating haul rope, and are propelled by the circulating haul rope. The passengers remain in contact with the ground or snow surface. The upward-traveling haul rope remains adjacent to the uphill track at an elevation that permits the passengers to maintain their grasp on the haul rope, handle or gripping device throughout the portion of the tow length that is designed to be traveled; and
E. Similar equipment not specified in this subsection, but conforming to at least one of the general descriptions in this subsection.
20. TRAMWAY PASSENGER. “Tramway passenger” means a person being transported or conveyed by a tramway, waiting in the immediate vicinity for transportation or conveyance by a tramway, moving away from the disembarkation or unloading point of a tramway to clear the way for the following passengers or boarding, embarking upon or disembarking from a tramway.
§ 15203. Retroactive effect; exception
This chapter may not be construed to prevent the use or sale of elevators in this State that were being used or installed prior to January 1, 1950 and that have been made to conform to the rules of the board covering existing installations and must be inspected as provided for in this chapter.
This chapter does not apply to elevators or tramways on reservations of the Federal Government, to elevators used for agricultural purposes on farms or to elevators located or maintained in private residences, as long as they are exclusively for private use.
§ 15204. Appeals; variances
A person aggrieved by an order or act of the chief inspector or a deputy inspector under this chapter may, within 15 days after notice of the order or act, appeal from the order or act to the board, which shall hold a hearing pursuant to Title 5, chapter 375, subchapter IV. After the hearing, the board shall issue an appropriate order either approving or disapproving the order or act.
Any person who is or will be aggrieved by the application of any law, code or rule relating to the installation or alteration of elevators or tramways may file a petition for a variance, whether compliance with that provision is required at the time of filing or at the time that provision becomes effective. The filing fee for a petition for a variance must be set by the director under section 15225-A. The chief inspector may grant a variance if, owing to conditions especially affecting the particular building or installation involved, the enforcement of any law, code or rule relating to elevators or tramways would do manifest injustice or cause substantial hardship, financial or otherwise, to the petitioner or any occupant of the petitioner’s building or would be unreasonable under the circumstances or condition of the property, provided that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of that law, code or rule. In granting a variance under this section, the chief inspector may impose limitations both of time and of use, and a continuation of the use permitted may be conditioned upon compliance with rules made and amended from time to time. A copy of the decision must be sent to all interested parties.
§ 15205. Board of Elevator and Tramway Safety
The Board of Elevator and Tramway Safety, as established by Title 5, section 12004-A, subsection 14, consists of 9 members, of whom 7 are appointed by the Governor. Of the 7 members of the board appointed by the Governor, one must be an owner or lessee of an elevator in the State; one must be a manufacturer of elevators; one must be a manufacturer or installer of accessibility lifts; one must be a licensed elevator mechanic; one must be a ski area operator presently operating tramways in the State; one must be a qualified licensed professional engineer who is familiar with tramway design, inspection and operation; and one must be a public member as defined in Title 5, section 12004-A. The 8th member of the board must be a physically handicapped person appointed by the Director of the Bureau of Rehabilitation Services, subject to the approval of the Governor. The 9th member of the board must be a member of the Division of Fire Prevention appointed by the Commissioner of Public Safety. Appointments are for 3-year terms. Appointments of members must comply with Title 10, section 8009. A member may be removed by the Governor for cause.
1. DELETED. Laws 2007, c. 402, § NN-1.
2. MEETINGS; CHAIR; QUORUM. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Five members of the board constitute a quorum.
3. DELETED. Laws 2007, c. 402, § NN-1.
§ 15205. Board of Elevator and Tramway Safety
The Board of Elevator and Tramway Safety, as established by Title 5, section 12004-A, subsection 14, consists of 9 members, of whom 7 are appointed by the Governor. Of the 7 members of the board appointed by the Governor, one must be an owner or lessee of an elevator in the State; one must be a manufacturer of elevators; one must be a manufacturer or installer of accessibility lifts; one must be a licensed elevator mechanic; one must be a ski area operator presently operating tramways in the State; one must be a qualified licensed professional engineer who is familiar with tramway design, inspection and operation; and one must be a public member as defined in Title 5, section 12004-A. The 8th member of the board must be a physically handicapped person appointed by the Director of the Bureau of Rehabilitation Services, subject to the approval of the Governor. The 9th member of the board must be a member of the Division of Fire Prevention appointed by the Commissioner of Public Safety. Appointments are for 3-year terms. Appointments of members must comply with Title 10, section 8009. A member may be removed by the Governor for cause.
1. DELETED. Laws 2007, c. 402, § NN-1.
2. MEETINGS; CHAIR; QUORUM. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Five members of the board constitute a quorum.
3. DELETED. Laws 2007, c. 402, § NN-1.
§ 15206. Powers and duties of board
The board shall administer, coordinate and enforce this chapter and has the following powers and duties in addition to those otherwise set forth in this chapter.
1. RULES. The board shall, in accordance with Title 5, chapter 375, adopt rules to implement the purposes of this chapter, including rules for the safe and proper construction, installation, alteration, repair, use, operation and inspection of elevators and tramways in the State. The rules must include standards for the review and audit of inspections performed by licensed private elevator inspectors not employed by the State. The rules must conform as nearly as practicable to the established standards as approved by the American National Standards Institute or its successor or other organization approved by the board. Rules adopted by the board under this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Board rules that are standards of the American National Standards Institute or its successor or other organization approved by the board must be obtained from the publisher.
2, 3. DELETED. Laws 2007, c. 402, § NN-2.
§ 15206-A. Denial or refusal to renew license; disciplinary action
The board may deny a license, refuse to renew a license or impose the disciplinary sanctions authorized by Title 10, section 8003, subsection 5-A for any of the reasons enumerated in Title 10, section 8003, subsection 5-A, paragraph A.
§ 15207. Repealed. Laws 1999, c. 687, § F-11
§ 15208. Examination of private elevator and lift inspectors; licenses and renewals
The board shall set standards necessary for the licensure and renewal of private elevator and lift inspectors. The board may adopt rules relating to the qualifications for licensure and renewal of private elevator and lift inspectors, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.
An elevator contractor or a person who is licensed as a private elevator and lift inspector who services an elevator or lift equipment may not inspect that elevator or lift equipment within 12 months from the date of servicing that elevator or lift equipment.
§ 15208-A. Registration of elevator contractors
Any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State shall register with the board annually. The registration must be submitted on a form provided by the board and must include the names and addresses of all licensed private inspectors, licensed mechanics and all helpers employed by the elevator contractor. An elevator contractor shall notify the board of any change in the information required under this section within 30 days of the change. The required fee for registration must be set by the director under section 15225-A.
§ 15209. Examination of private tramway inspectors; licenses
The board shall license an applicant as a private tramway inspector, who may perform the inspections required on tramways, if that applicant:
1. REGISTRATION. Is a professional engineer with a current valid registration in some state. If an applicant for a private tramway inspector’s license demonstrates to the board that the applicant possesses more than 6 years’ experience in the construction, design, inspection and operation of tramways, this registration requirement may be waived by the board;
2. EXPERIENCE. Has considerable experience in the construction, design or maintenance of tramways;
3. EXPERIENCE IN INSPECTING. Has 4 years’ experience inspecting tramways while working for an insurance company, a government agency or a company performing tramway or similar equipment inspections;
4. CAPABILITY AND APTITUDE. Has the physical capability and aptitude to perform the duties of a private tramway inspector in a safe and thorough manner; and
5. EXAMINATION. Has sufficient experience and knowledge to achieve a satisfactory rating in an examination designed to test the applicant’s knowledge of orders and principles of tramway safety. When an applicant for a private tramway inspector’s license demonstrates more than 6 years’ experience in the construction, design, inspection and operation of tramways, the provisions for examination must be waived.
A. The examination for a licensed private tramway inspector must be given by the chief inspector or by 2 or more examiners appointed by the chief inspector. The examination must be written, in whole or in part, and must be confined to questions the answers to which will aid in determining the fitness and competency of the applicant for the intended service and must be of uniform standard throughout the State.
B. Deleted. Laws 2001, c. 573, § B-15.
C. A private tramway inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.
D. Applications for examination and license must be on forms furnished by the board. The examination fee for a private tramway inspector’s license must be set by the director under section 15225-A.
§ 15209-A. Private wire rope inspectors; licenses
The board shall license an applicant as a private wire rope inspector, who may perform the inspections required for each tramway equipped with wire rope, if that applicant has a total of 5 years’ experience in wire rope manufacture, installation, maintenance or inspection. A private wire rope inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.
§ 15210. Revocation of private tramway or elevator inspector’s license
The board may revoke a private tramway, elevator or lift inspection license or remove inspection endorsements from an elevator or lift mechanic’s license for the following causes:
1. FAILURE TO SUBMIT TRUE REPORTS. For failure to submit true reports concerning the conditions of a tramway or elevator or for conduct determined by the board to be contrary to the best interests of tramway or elevator safety or the board;
2. PHYSICAL INFIRMITIES. For physical infirmities that develop to a point at which it appears that an inspector or mechanic is no longer able to perform the required duties in a thorough and safe manner; or
3. REPEALED. Laws 2007, c. 402, § NN-4.
§ 15211. Notice of accidents
1. REPORTING ACCIDENTS. Each elevator or tramway accident that is caused by equipment failure or results in significant injury to a person or results in substantial damage to equipment must be reported by the owner or lessee to the chief inspector in accordance with the board’s rules.
2. REVOCATION OF CERTIFICATE. When an elevator or tramway accident as described in subsection 1 occurs, the inspection certificate for the involved elevator or tramway may be summarily revoked in accordance with and subject to the standards and limitations of Title 5, section 10004, pending decision on any application with the District Court for a further suspension.
§ 15212. Examination of accidents
The chief inspector may examine or cause to be examined the cause, circumstances and origin of all elevator or tramway accidents within the State. Upon request, the chief inspector shall furnish to the proper district attorney the names of witnesses and all information obtained.
§ 15213. Elevator or lift mechanics; license; definition
A person may not service, repair, alter or install any elevator unless that person is licensed as an elevator or lift mechanic under this chapter. Elevator work in industrial plants and manufacturing plants may be performed by plant personnel who are not licensed under this chapter if the work is supervised by the plant engineer and performed in compliance with rules adopted by the board.
The word “elevator,” as used in this chapter, includes all electrical equipment, wiring, steelwork and piping in the elevator machine room, hoistway and pit pertaining to the operation and control of an elevator, except power feeders and required power equipment up to the control panel, heating, lighting, ventilation and drainage equipment.
CASE NOTES
1. Term “industrial plant” would be understood by an ordinary man to apply to any factory, business, or concern that is engaged primarily in the manufacture or assembly of goods or the processing of raw materials or both. Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).
2. By no stretch of the imagination could a bank building, a hotel, a theater, an office building, or a restaurant be considered an industrial plant; while one sometimes speaks of “the movie industry,” the “hotel industry,” or “the banking industry,” that is merely a loose use of language to convey that idea that the particular business is a sizeable one; in spite of that colloquialism, we do not speak of the buildings housing such businesses as “industrial plants.” Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).
3. Insurance company’s home office, which consisted of office facilities at which its employees worked, was not an “industrial plant” as that term is used in former Me. Rev. Stat. Ann. tit. 26, § 439 (now Me. Rev. Stat. Ann. tit. 32, § 15213). Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).
§ 15214. Issuance; qualifications
The board shall issue an elevator or lift mechanic’s license to any applicant who has at least 2 years’ experience in the service, repair, alteration or installation of elevators and lifts while employed by an elevator company, or has equivalent experience as defined by rules of the board, and meets the requirements established pursuant to section 15216.
A licensed elevator or lift mechanic may not have more than 2 helpers under direct supervision. These helpers need not be licensed.
A licensed elevator or lift mechanic shall comply with the provisions of this chapter and the rules adopted by the board. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.
§ 15215. Repealed. Laws 2001, c. 573, § B-22
§ 15216. Examination of elevator or lift mechanics; applications; licenses; renewals
The board shall set standards necessary for the licensure and renewal of elevator or lift mechanics. The board may adopt rules relating to the qualifications for licensure and renewal of elevator or lift mechanics, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.
§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24
§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24
§ 15216-C. License renewal
Any license issued under this chapter is renewable upon satisfaction of the applicable requirements for renewal and payment of the renewal fee as set by the director under section 15225-A. The expiration dates for licenses issued under this chapter may be established at such other times as the commissioner may designate.
A license may be renewed up to 90 days after the date of its expiration upon payment of a late fee in addition to the renewal fee as set under section 15225-A. Any person who submits an application for renewal more than 90 days after the license expiration date must pay an additional late fee as set under section 15225-A and is subject to all requirements governing new applicants under this chapter, except that the board may in its discretion waive the examination and other requirements. Notwithstanding any other provision of this chapter, the board shall waive the examination if a renewal application is made within 90 days after separation from the United States Armed Forces, under conditions other than dishonorable, by a person who failed to renew that person’s license because that person was on active duty in the Armed Forces; except that the waiver of examination may not be granted if the person served a period of more than 4 years in the Armed Forces, unless that person is required by some mandatory provision to serve a longer period and that person submits satisfactory evidence of this mandatory provision to the board.
§ 15217. Skiers’ and tramway passengers’ responsibilities
1. DEFINITIONS. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. “Inherent risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.
B. “Skiing” means the use of a ski area for snowboarding or downhill, telemark or cross-country skiing; for sliding downhill or jumping on snow or ice on skis, a toboggan, sled, tube, snowboard, snowbike or any other device; or for similar uses of any of the facilities of the ski area, including, but not limited to, ski slopes, trails and adjoining terrain.
C. “Skier” means any person at a ski area who participates in any of the activities described in paragraph B.
D. “Competitor” means a skier actually engaged in competition or a special event or training or practicing for competition or a special event on any portion of the ski area made available by the ski area operator.
E. “Freestyle terrain” includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes and all other constructed or natural features, halfpipes, quarterpipes and freestyle-bump terrain.
2. ACCEPTANCE OF INHERENT RISKS. Because skiing as a recreational sport and the use of passenger tramways associated with skiing may be hazardous to skiers or passengers, regardless of all feasible safety measures that may be taken, each person who participates in the sport of skiing accepts, as a matter of law, the risks inherent in the sport and, to that extent, may not maintain an action against or recover from the ski area operator, or its agents, representatives or employees, for any losses, injuries, damages or death that result from the inherent risks of skiing.
3. WARNING NOTICE. A ski area operator shall post and maintain at the ski area where the lift tickets and ski school lessons are sold and at the loading point of each passenger tramway signs that contain the following warning notice:
WARNING:
Under Maine law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, corn, crust and slush and cut-up, granular and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, rocks, stumps, trees, forest growth or other natural objects and collisions with such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.
4. DUTY TO SKI WITHIN LIMITS OF ABILITY. A skier has the sole responsibility for knowing the range of the skier’s own ability to negotiate any slope or ski trail, and it is the duty of the skier to ski within the limits of the skier’s own ability, to maintain control of the rate of speed and the course at all times while skiing, to heed all posted and oral warnings and instructions by the ski area operator and to refrain from acting in a manner that may cause or contribute to the injury of the skier or others.
4-A. COMPETITION AND FREESTYLE TERRAIN. A competitor accepts all inherent risks of skiing and all risks of course, venue and area conditions, including, but not limited to: weather and snow conditions; obstacles; course or feature location, construction and layout; freestyle terrain configuration and condition; collision with other competitors; and other courses, layouts and configurations of the area to be used.
5. RESPONSIBILITY FOR COLLISIONS. The responsibility for a collision between any skier while skiing and any person or object is solely that of the skier or skiers involved in the collision and not the responsibility of the ski area operator or its agents, representatives or employees.
6. LIABILITY. A ski area operator or its agents, representatives or employees are not liable for any loss, injury, damage or death resulting from the design of the ski area.
7. PROVISION OF NAME AND CURRENT ADDRESS REQUIRED. A skier involved in, causing or contributing to a collision or other accident at a ski area that results in a fall or injury may not leave the vicinity of the collision or accident before giving that skier’s name and current address to an employee or representative of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision, in which case the person leaving the scene of the collision shall give that skier’s name and current address after securing such aid. A ski area operator, or its agents, representatives or employees, is not liable for a skier’s failure to provide that skier’s name and address or for leaving the vicinity of an accident or collision.
8. ACTIONS NOT PROHIBITED. This section does not prevent the maintenance of an action against a ski area operator for:
A. The negligent operation or maintenance of the ski area; or
B. The negligent design, construction, operation or maintenance of a passenger tramway.
CASE NOTES
1. In a negligence action arising from the collision of two skiers, plaintiff and defendant, the clear intent under Maine law to confine the responsibility for skiing accidents to those skiers involved, coupled with the lack of an agreement of any sort between plaintiff and defendant as to any allocation of responsibility for any such accident, defendant failed to prove by a preponderance of the evidence that he should prevail as a matter of law on his defense of assumption of risk. Bresnahan v. Bowen, 263 F. Supp. 2d 131, 2003 U.S. Dist. LEXIS 8623 (D. Me. 2003).
2. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
3. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) did not support the application of a primary assumption of the risk defense, and the statute also lacked any language that added proof of the nonexistence of an inherent risk to the elements of a skier’s negligence claim. Former § 488 established a relatively simple and straightforward process, which, first, protected ski area operators from strict liability claims that otherwise might arise from allegations that ski area operation is an inherently dangerous activity, and second, stated that establishing liability required an injured skier to prove that the skier’s damages were caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
4. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
5. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
6. Under Me. Rev. Stat. Ann. tit. 32, § 15217(1)(A) and (2), a ski area was immune from an injured skier’s tort suit arising out of a collision with a snow-making hydrant; thus, summary judgment for the ski area was proper. The skier’s contention that his claim was cognizable under § 15217(8) if the ski area had been negligent in the operation and maintenance of the snow-making hydrant was without merit because such a suit must not arise out of an inherent risk of skiing, of which a collision with snow-making equipment is such a risk. Green v. Sunday River Skiway Corp., 81 F. Supp. 2d 122, 1999 U.S. Dist. LEXIS 19890 (D. Me. 1999).
7. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) does not specify what risks are inherent in skiing, and in the absence of such statutory specification, whether a skier’s injury results from an inherent risk depends on the factual circumstances of each case. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
8. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
9. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).
10. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
11. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
12. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
13. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
14. Trial court did not err in granting the ski area operator’s motion for summary judgment because the injured patron was barred from recovery pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217 where the patron’s injury resulted from a collision with a hillock, and collisions with or falls resulting from natural and manmade objects were included within the inherent risks of skiing. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).
15. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).
§ 15218. Duties of skiers and tramway passengers; acts prohibited
A person engaged in skiing or riding on a tramway may not:
1. EMBARK OR DISEMBARK FROM TRAMWAY EXCEPT AS DESIGNATED. Embark or disembark from any tramway, except at a designated area;
2. THROW OR EXPEL OBJECTS FROM TRAMWAY. While riding on any tramway or similar device, throw or expel any object or do any act or thing that interferes with the running of that tramway;
3. ENGAGE IN HARMFUL CONDUCT. While riding on any tramway, willfully engage in any type of conduct that will contribute to or cause injury to any person, or to the tramway, or willfully place any object in the uphill ski track that will cause injury to any person or cause damage to or derailment of the tramway;
4. CLOSED TRAILS. Ski or otherwise use a slope or trail that has been designated “closed” by the operator without written permission of the operator or the operator’s designee;
5. REMOVAL OR DESTRUCTION OF SIGNS. Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail by the operator; or
6. OUT-OF-BOUNDS AREAS. Ski or otherwise use any portion of the ski area that is not a part of a regular network of trails or areas open to the public, including wooded areas between trails, undeveloped areas and all other portions not open to the public, if the operator has properly posted these areas as being closed to public access.
§ 15219. Hang gliding
Hang gliding is also recognized as a hazardous sport. Therefore, a person who is hang gliding is deemed to have assumed the risk and legal responsibility for any injury to the hang glider’s person or property in the same manner and to the same extent as skiers under this chapter.
§ 15220. Penalties
1. VERBAL WARNING; FORFEITURE OF LIFT TICKET. Any owner, manager or employee of any ski area, who finds a person in violation of section 15218, may first issue a verbal warning to that individual or suspend the individual’s lift use privileges. Any person who fails to heed the warning issued by the ski area owner, manager or employee shall forfeit the ski lift ticket and ski lift use privileges and must be refused issuance of another lift ticket and is liable for any damages to the tramway and its incidental equipment that have been caused by the individual’s misconduct.
2. COST OF RESCUE OPERATION. When it is necessary to commence a rescue operation as a result of a violation of section 15218, subsection 6, any person who has committed the violation is liable for the cost of that rescue operation.
§ 15221. Inspection of elevators and tramways
1. FEES; INSPECTION CERTIFICATE. Each elevator or tramway proposed to be used within this State must be thoroughly inspected by either the chief inspector, a deputy inspector or a licensed private elevator or tramway inspector and, if found to conform to the rules of the board, the board shall issue to the owner an inspection certificate. Fees for inspection and certification of elevators and tramways must be set by the director under section 15225-A and must be paid by the owner of the elevator or tramway. The certificate must specify the maximum load to which the elevator or tramway may be subjected, the date of its issuance and the date of its expiration. The elevator certificate must be posted in the elevator and the tramway certificate at a conspicuous place in the machine area.
2. SCHEDULED INSPECTIONS. The owner of an elevator shall have the elevator inspected annually by a licensed private elevator inspector, the chief inspector or a deputy inspector. The owner of a tramway shall have the tramway inspected by a licensed private tramway inspector, the chief inspector or a deputy inspector twice each year. One tramway inspection must be made when weather conditions permit a complete inspection of all stationary and moving parts. The 2nd tramway inspection must be made while the tramway is in operation.
3. TEMPORARY SUSPENSION OF INSPECTION CERTIFICATE; CONDEMNATION CARD. When, in the inspector’s opinion, the elevator or tramway can not continue to be operated without menace to the public safety, the chief inspector or deputy inspector may temporarily suspend an inspection certificate in accordance with Title 5, section 10004 and post or direct the posting of a red card of condemnation at every entrance to the elevator or tramway. The condemnation card is a warning to the public and must be of such type and dimensions as the board determines. The suspension continues, pending decision on any application with the District Court for a further suspension. The condemnation card may be removed only by the inspector posting it or by the chief inspector.
4. SPECIAL CERTIFICATE; SPECIAL CONDITIONS. When, upon inspection, an elevator or tramway is found by the inspector to be in reasonably safe condition but not in full compliance with the rules of the board, the inspector shall certify to the chief inspector the inspector’s findings and the chief inspector may issue a special certificate, to be posted as required in this section. This certificate must set forth any special conditions under which the elevator or tramway may be operated.
5. INSPECTION REPORTS. Licensed private tramway and elevator inspectors shall submit inspection reports to the owner on a form provided by the board within 15 working days from the date of the inspection.
6. FOLLOW-UP INSPECTIONS. All follow-up inspections necessary to enforce compliance must be performed by either the chief inspector or a deputy inspector. A fee set by the director under section 15225-A must be charged for those follow-up inspections.
7. CERTIFICATE NOT TRANSFERABLE. An inspection certificate may not be transferred to any other person, firm, corporation or association. If ownership of an elevator or tramway is transferred, the new owner must apply for a new inspection certificate as required by section 15229, subsection 7.
§ 15222. Condemned elevators and tramways not to be operated
An elevator or tramway that has been condemned under section 15221 may not be operated in this State. Any person who owns or operates or causes to be operated for other than repair or corrective purposes an elevator or tramway in violation of this section commits a Class E crime and must be punished by a fine of not more than $ 500 or by imprisonment for not more than 6 months, or by both.
§ 15223. Criminal operation of elevator or tramway
1. PROHIBITION. An owner of an elevator or tramway is guilty of criminal operation of an elevator or tramway if that owner operates that elevator or tramway without a current and valid inspection certificate.
2. STRICT LIABILITY. Criminal operation of an elevator or tramway is a strict liability crime as defined in Title 17-A, section 34, subsection 4-A.
3. SPECIFIC NUMBER OF DAYS OF CRIMINAL OPERATION. Each day of criminal operation does not constitute a separate crime.
4. CLASS OF CRIME; ENHANCED FINE. Criminal operation of an elevator or tramway is a Class E crime. However, notwithstanding Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, the court may impose an enhanced fine. The fine amount above that authorized under Title 17-A, section 1301 is based solely on the number of days of criminal operation pleaded and proved by the State. For each day of criminal operation pleaded and proved, the court may increase the fine amount by up to $ 100 for each of those days.
5. IMPOSITION OF SENTENCE WITHOUT ENHANCED FINE. Nothing in subsection 3 or 4 may be construed to restrict a court, in imposing any authorized sentencing alternative, including a fine in an amount authorized under Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, from considering the number of days of illegal operation, along with any other relevant sentencing factor, which need not be pleaded or proved by the State.
§ 15224. Installation of new elevators and tramways; fees
Detailed plans or specifications of each new or altered elevator or tramway must be submitted to and approved by the chief inspector before the construction may be started. Fees for examination of the plans or specifications must be set by the director under section 15225-A.
§ 15225. Repealed. Laws 2001, c. 573, § B-29
§ 15225-A. Fees
The Director of the Office of Licensing and Registration within the Department of Professional and Financial Regulation may establish by rule fees for purposes authorized under this chapter in amounts that are reasonable and necessary for their respective purposes, except that the fee for any one purpose other than permit and inspection fees may not exceed $ 500. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
§ 15226. Reports by inspectors
A deputy inspector or licensed private inspector shall make a full report to the chief inspector, giving all data required by the rules adopted by the board and shall report to the chief inspector and to the owner all defects found and all noncompliances with the rules. When any serious infraction of the rules is found by a deputy inspector or licensed private inspector and that infraction is, in the opinion of the inspector, dangerous to life, limb or property, the inspector shall report that infraction immediately to the chief inspector.
§ 15227. Powers of chief inspector
The board is authorized to investigate all elevator and tramway accidents that result in injury to a person or in damage to the installation.
The chief inspector is authorized:
1. ENFORCE LAWS AND RULES. To enforce the laws of the State governing the use of elevators and tramways and to enforce adopted rules of the board;
2. FREE ACCESS TO PREMISES OR LOCATION. To provide free access for deputy inspectors, including the chief inspector, at all reasonable times to any premises in the State where an elevator or tramway is installed or is under construction for the purpose of ascertaining whether that elevator or tramway is installed, operated, repaired or constructed in accordance with this chapter;
3. SUPERVISE INSPECTORS. To allocate and supervise the work of deputy inspectors;
4. CERTIFICATES. To issue and temporarily suspend certificates allowing elevators and tramways to be operated pursuant to Title 5, chapter 375;
5. EXAMINATIONS. To hold examinations and establish the fitness of applicants to become licensed private elevator or tramway inspectors or elevator mechanics, and to issue certificates or licenses to those persons who have successfully passed required examinations and been approved by the board as licensed private elevator or tramway inspectors or elevator mechanics; and
6. TAKE UNINSPECTED OR UNREPAIRED ELEVATORS AND TRAMWAYS OUT OF SERVICE. To take an elevator or tramway out of service in accordance with Title 5, section 10004 if an inspection report has not been submitted to the board within 60 days of the expiration of the most recent certificate or if the owner has failed to make repairs as required by the board. This power is in addition to the chief inspector’s powers under section 15221, subsection 3.
§ 15228. Elevator size
1. REQUIREMENTS. Notwithstanding section 15206, whenever a passenger elevator is installed in a building being newly constructed or in a new addition that extends beyond the exterior walls of an existing building, the passenger elevator must reach all levels within the building and be of sufficient size to allow the transport of a person on an ambulance stretcher in the fully supine position, without having to raise, lower or bend the stretcher in any way. This requirement applies to all plans approved by the board after January 1, 2002. The board shall adopt rules necessary to carry out the provisions of this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.
2. APPLICABILITY. This section applies only to multi-story buildings that house private entities or nonprofit organizations that serve the public or are places of public accommodation. Notwithstanding Title 5, section 4553, subsection 8, places of public accommodation include restaurants, cafes, hotels, inns, banks, theaters, motion picture houses, bars, taverns, night clubs, country clubs, convention centers, retail stores, shopping centers, hospitals, private schools, day care centers, senior citizen centers, doctor offices, professional offices, manufacturing facilities, apartment buildings, condominiums, state facilities or any private establishment that in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public. This section does not apply to any building owned by a local unit of government.
§ 15229. Duties of owners of elevators or tramways
1. OWNER RESPONSIBILITY. The responsibility for design, construction, maintenance and inspection of an elevator or tramway rests with the person, firm, partnership, association, corporation or company that owns the elevator or tramway.
2. OBTAIN INSPECTION CERTIFICATE. The owner of an elevator or tramway shall submit an annual application for an annual inspection certificate together with the inspection report within 30 business days of the inspection and prior to the expiration of the current certificate. The application must be on a form provided by the board and must be accompanied by the required fee set by the director under section 15225-A. A late fee set by the director under section 15225-A may be assessed for failure to submit the application and inspection report in a timely manner.
3. FAILURE TO QUALIFY FOR INSPECTION CERTIFICATE. The owner of an elevator or tramway that does not qualify for an inspection certificate shall take the elevator or tramway out of operation until the required repairs have been made and a new inspection certificate has been issued.
4. NOTIFY BOARD WHEN REQUIRED REPAIRS MADE. The owner of an elevator or tramway shall notify the board when required repairs have been made and provide the board with satisfactory evidence of completion.
5. ELEVATOR OR TRAMWAY DECLARED IDLE OR PLACED OUT OF SERVICE. The owner of an elevator or tramway that has been declare d idle or placed out of service in accordance with rules adopted by the board shall notify the board within 30 days of declaring the elevator or tramway idle.
6. REMOVAL. The owner of an elevator or tramway shall notify the board within 30 days of the removal of the elevator or tramway.
7. CHANGE OF OWNERSHIP. The owner of record of an elevator or tramway shall notify the board of a transfer of ownership of an elevator within 30 days of such transfer. The new owner shall apply, on a form provided by the board, for a new inspection certificate that will be issued without the need for an additional inspection for the remainder of the term of the current certificate. A fee for issuance of a new inspection certificate may be set by the director under section 15225-A.
8. FAILURE TO COMPLY. In addition to the remedies available under this chapter, an owner who fails to comply with the provisions of this chapter or rules adopted by the board is subject to the provisions of Title 10, section 8003, subsection 5 whether or not the elevator or tramway has a current inspection certificate, except that, notwithstanding Title 10, section 8003, subsection 5, paragraph A-1, subparagraph 3, a civil penalty of up to $ 3,000 may be imposed for each violation.
Massachusetts Ski Safety Act
Posted: July 22, 2013 Filed under: Massachusetts, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Massachusetts, Massachusetts Ski Safety Act, ski area, Ski Resort, Ski Safety Act, Skier, skiing, Snowboarder, winter sports 1 CommentMassachusetts Ski Safety Act
ANNOTATED LAWS OF MASSACHUSETTS
PART I ADMINISTRATION OF THE GOVERNMENT
TITLE XX PUBLIC SAFETY AND GOOD ORDER
Chapter 143 Inspection and Regulation of, and Licenses for, Buildings, Elevators and Cinematographs
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 143, § 71I (2012)
§ 71I. Recreational Tramways — Definitions.
As used in sections seventy-one H to seventy-one S, inclusive, the following words shall, unless the context otherwise requires, have the following meanings:
“Recreational tramway”, a device used to transport passengers uphill on skis, or in cars on tracks or suspended in the air, by the use of steel cables, chains or belts or by ropes, and usually supported by trestles or towers with one or more spans. The term recreational tramway shall include the following:
(1) Two-car aerial passenger tramway, a device used to transport passengers in two open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
(2) Multi-car aerial passenger tramway, a device used to transport passengers in several open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
(3) Skimobile, a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices.
(4) Chair lift, a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans, or similar devices.
(5) J bar, T bar or platter pull, so-called, and similar types of devices, means of transportation which pull skiers riding on skis by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans.
(6) Rope tow, a type of transportation which pulls the skiers riding on skis as the skiers grasp the rope manually, or similar devices.
“Operator”, a person, including the commonwealth or any political subdivision thereof, who owns or controls the operation of a recreational tramway.
“Board”, the recreational tramway board.
“Skier”, any person utilizing the ski area under control of a ski area operator for the purpose of skiing, whether or not that person is a passenger on a recreational tramway, including riders during a non-skiing season.
“Ski area”, all of the slopes and trails under the control of the ski area operator, including cross-country ski areas, slopes and trails, and any recreational tramway in operation on any such slopes or trails administered or operated as a single enterprise but shall not include base lodges, motor vehicle parking lots and other portions of ski areas used by skiers when not actually engaged in the sport of skiing.
“Ski area operator”, the owner or operator of a ski area, including an agency of the commonwealth or a political subdivision thereof, or the employees, agents, officers or delegated representatives of such owner or operator, including the owner or operator of a cross-country ski area, slope or trail, and of any recreational tramway in operation on any such slope or trail administered or operated as a single enterprise.
“Ski slope or trail”, an area designed by the person or organization having operational responsibility for the ski area as herein defined, including a cross-country ski area, for use by the public in furtherance of the sport of skiing, meaning such designation as is set forth on a trail map or as otherwise designated by a sign indicating to the skiing public the intent that the area be used by skiers for purpose of participating in the sport.
HISTORY: 1968, 565, § 1; 1978, 455, §§ 1, 2; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The 1978 amendment, in the first sentence, extended the applicability of definitions through § 71S, and added the definitions of “Skier,” “Ski area,” “Ski area operator,” and “Ski slope or trail.”
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Law Reviews
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
Language of ALM GL c 143, § 71I limits the definition of skier to any person utilizing a ski area for the purpose of skiing, and shows that the Massachusetts Ski Safety Act (Act), ALM GL c 143, §§ 71N, 71O, was not intended to include a non-skiing sport like snow tubing; the Act did not relieve a ski operator from a claim for injuries from a snow tubing accident, and the ski operator’s summary judgment motion was denied. Burden v. Amesbury Sports Park, Inc. (2003, Super Ct) 16 Mass L Rep 744, 2003 Mass Super LEXIS 276.
Snowboarders falls within the definition of skiers. Rich v. Tamarack Ski Corp. (2008) 24 Mass L Rep 448, 2008 Mass. Super. LEXIS 324.
Because snowboarders were included within the definition of “skiers” found in ALM GL c 143, § 71I, under ALM GL c 143, § 71O, a ski area operator and an instructor were not liable to a snowboarder who was injured when she ran into the instructor who was standing at the side of a ski hill. Rich v. Tamarack Ski Corp. (2008) 24 Mass L Rep 448, 2008 Mass. Super. LEXIS 324.
Because a racing skier’s collision with a lift tower stanchion was off the race course and off the trail–as defined in ALM GL c 143, § 71I– ALM GL c 143, § 71O, placed the duty to avoid collisions on the skier alone. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
§ 71J. Recreational Tramways — Board to Adopt Rules and Regulations for Construction, Maintenance; Licensing of Inspectors.
After a hearing, the board shall adopt, and may from time to time amend or revoke, rules and regulations for the construction, operation and maintenance of recreational tramways and for the inspection, licensing and certification of inspectors thereof. The board shall in like manner adopt, and from time to time amend or revoke, rules and regulations for a system of signs to be used by a ski area operator in order to promote the safety of skiers. Such system shall incorporate standards in general use in the skiing industry to evaluate the difficulty of slopes and trails and to adequately alert skiers to the known danger of any slope or trail or the ski area. The attorney general shall assist the board in framing such rules and regulations.
HISTORY: 1968, 565, § 1; 1978, 455, § 3; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The 1978 amendment, added the second and third sentences, relative to sign systems.
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board. 526 CMR 1.01 through 3.04; , 4.00 (1.1-1.8), 5.00 (2.1-2.6), 6.00 (3.1-3.6), 7.00 (4.1, 4.2), 8.01, 8.02.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71K. Recreational Tramways — to Be Licensed.
No recreational tramway shall be operated unless a license for such operation has been issued by the board. Such license shall be issued for a term of not longer than one year, upon application therefor on a form furnished by the board, and upon a determination by the board that the recreational tramway conforms to the rules and regulations of the board. In making such determination the board may rely upon the report of an inspector certified by it in accordance with its rules and regulations.
HISTORY: 1968, 565, § 1; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Jurisprudence
51 Am Jur 2d, Licenses and Permits §§ 10, 11, 64-68, 74, 76.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71M. Recreational Tramways — Appeals to Superior Court from Orders of Board.
Any operator who is aggrieved by any order of the board may appeal therefrom to the superior court. No such appeal shall suspend the operation of the order made by the board; provided that the superior court may suspend the order of the board pending the determination of such appeal whenever, in the opinion of the court, justice may require such suspension. The superior court shall hear such appeal at the earliest convenient day and shall enter such decree as justice may require.
HISTORY: 1968, 565, § 1; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Jurisprudence
18C Am Jur Pl & Pr Forms (Rev), Occupations, Trades, and Professions, Forms 20, 21.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71N. Recreational Tramways — Posting of Signs and Notices by Ski Area Operator.
A ski area operator shall:
(1) whenever maintenance or snow-making equipment is being employed on any ski slope or trail open to the public, conspicuously place or cause to be placed, notice at or near the top of any ski slope or trail being maintained that such equipment is being so employed, and shall conspicuously indicate the location of any such equipment in a manner to afford skiers reasonable notice of the proximity of such equipment;
(2) mark and identify all trail maintenance and emergency vehicles, including snowmobiles, and furnish such vehicles with flashing or rotating lights, which shall be operated during the time that said vehicles are in operation within the ski area;
(3) with respect to the emergency use of vehicles within the ski area, including but not limited to uses for purposes of removing injured or stranded skiers, or performing emergency maintenance or repair work to slopes, trails or tramway equipment, not be required to post such signs as is required by clause (1), but shall be required to maintain such lighting equipment required by clause (2);
(4) mark the location of any hydrants used in snow-making operations and located within or upon a slope or trail;
(5) conspicuously place within the ski area, in such form, size and location as the board may require, and on the back of any lift ticket issued notice, in plain language, of the statute of limitations and notice period established in section seventy-one P; and
(6) maintain a sign system on all buildings, recreational tramways, ski trails and slopes in accordance with rules and regulations promulgated by the board and shall be responsible for the maintenance and operation of ski areas under its control in a reasonably safe condition or manner; provided, however, that ski area operators shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.
HISTORY: 1978, 455, § 4; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
Acts 1978, Ch. 455, § 4, replaced former §§ 71N and 71O with sections 71N through 71S; the former provisions of §§ 71N and 71O are now contained in §§ 71R and 71S, respectively. Section 5 of the inserting act provides as follows:
Section 5. The provisions of clause (5) of section seventy-one N of chapter one hundred and forty-three of the General Laws, inserted by section three of this act, relative to the printing on lift tickets of a notice of the statute of limitations, shall not apply to a ski area operator who has a supply of such tickets already printed for the nineteen hundred and seventy-eight and nineteen hundred and seventy-nine skiing season, insofar as he may exhaust such supply. Such ski area operator shall, however, comply with said notice requirements beginning with the nineteen hundred and seventy-nine and nineteen hundred and eighty skiing season.
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Jurisprudence
57A Am Jur 2d, Negligence § 32.
15 Am Jur Trials 147, Skiing Accident Litigation.
20 Am Jur Proof of Facts 2d 1, Liability for Skiing Accident.
Law Reviews
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
One year limitation period in GL c 143 § 71P is not applicable only to action for violation of duty prescribed by GL c 143 § 71N but applies to all personal injury actions brought by skiers against ski area operator arising out of skiing injuries. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
ALM GL c 143 § 71O does not exempt ski area operator from liability for injuries caused by its agent. Tilley v. Brodie Mountain Ski Area, Inc. (1992) 412 Mass 1009, 591 NE2d 202, 1992 Mass LEXIS 273.
Summary judgment in favor of ski area operator was appropriate where plaintiff was skier, who slipped while approaching ski lift, since ALM GL c 143 § 71N specifically excludes liability for injury to skier arising out of risks inherent in sport of skiing, and a skier accepts, as a matter of law, risk that he or she might be injured in manner that falls within statutorily specified risks as well as risks contemplated by statutory scheme. Fetzner v. Jiminy Peak, The Mountain Resort (1995) 1995 Mass App Div 55, 1995 Mass App Div LEXIS 30.
Ski area operator was not liable for injuries sustained by skier who, after skiing over clumps of ice on trail, lost control and skied off trail edge into woods, since injuries arose out of risks inherent in skiing, and skier failed to control speed and direction. Spinale v. Pam F., Inc. (1995) 1995 Mass App Div 140, 1995 Mass App Div LEXIS 66.
Massachusetts Ski Safety Act (Act), ALM GL c 143, §§ 71N, 71O, was not intended to include a non-skiing sport like snow tubing; the Act did not relieve a ski operator from a claim for injuries from a snow tubing accident, and the ski operator’s summary judgment motion was denied. Burden v. Amesbury Sports Park, Inc. (2003, Super Ct) 16 Mass L Rep 744, 2003 Mass Super LEXIS 276.
Although a ski area operator had a general duty to operate the ski areas under its control in a reasonably safe manner, pursuant to ALM GL c 143, § 71N(6), because a racing skier’s collision with a lift tower stanchion was off the race course and off the trail, ALM GL c 143, § 71O, placed the duty to avoid collisions on the skier alone. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
In a negligence action brought by an inexperienced skier who was seriously injured when she struck a snow gun while skiing on a low intermediate trail, even though the ski area operator’s trail markings did not violate the Massachusetts Ski Safety Act, ALM GL c 143, § 71N, or contribute to the accident and even though the skier had an obligation under ALM GL c 143, § 71O to avoid collisions with an object so long as the object was not improperly marked, the ski area operator was not entitled to summary judgment on all the negligence claims because there were factual disputes remaining as to whether the snow gun was adequately marked and padded. Peresypa v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 84417.
Reasonable jury could find that ski area operator breached its general duty under ALM GL c 143 § 71N(6), even though statute provides exception protecting operators from “damages…which arise out of risks inherent in sport of skiing,” where examples of inherent risks enumerated by statute include “variations in terrain, surface or subsurface snow, ice conditions or bare spots,” because presence of snow gun in middle of ski trail does not appear to fall into category of inherent risk. Eipp v. Jiminy Peak, Inc. (2001) 154 F Supp 2d 110, 2001 US Dist LEXIS 11229.
§ 71O. Recreational Tramways — Conduct, Responsibilities, and Duties of Skiers.
No skier shall embark or disembark upon a recreational tramway except at a designated location and during designated hours of operation, throw or expel any object from any recreational tramway while riding thereon, act in any manner while riding on a recreational tramway that may interfere with its proper or safe operation, engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall while traveling uphill on a ski lift, or cross the uphill track of a recreational tramway except at designated locations. A skier shall maintain control of his speed and course at all times, and shall stay clear of any snow-grooming equipment, any vehicle, towers, poles, or other equipment.
A skier who boards a recreational tramway shall be presumed to have sufficient abilities to use the same, and shall follow any written or oral instruction given regarding its use and no skier shall embark on a recreational tramway without authority of the operator. A skier skiing down hill shall have the duty to avoid any collision with any other skier, person or object on the hill below him, and, except as otherwise provided in this chapter, the responsibility for collisions by any skier with any other skier or person shall be solely that of the skier or person involved and not that of the operator, and the responsibility for the collision with any obstruction, man-made or otherwise, shall be solely that of the skier and not that of the operator, provided that such obstruction is properly marked pursuant to the regulations promulgated by the board. No skier shall ski on any ski slope or trail or portion thereof which has been designated closed, nor ski on other than an identified trail, slope or ski area. Any person skiing on other than an open slope or trail within the ski area shall be responsible for any injuries resulting from his action. A skier shall be presumed to know the range of his own ability to ski on any slope, trail or area. A skier shall be presumed to know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots, and shall assume the risk of injury or loss caused by such inherent risks. A skier shall, prior to his entrance onto the slope or trail, other than one designated for cross-country skiing, or embarking on any recreational tramway, have attached on his skis, a strap or other device for the purpose of restraining or preventing a runaway ski. A ski area operator who finds a person in violation of this section, may issue an oral warning to that individual. A person who fails to heed the warning issued by such ski area operator shall forfeit his recreational tramway ticket and recreational tramway use privileges and may be refused issuance of another such ticket to the recreational tramway.
HISTORY: 1978, 455, § 4; 1987, 287.
NOTES: Editorial Note
Acts 1978, Ch. 455, § 4, replaced former §§ 71N and 71Owith §§ 71N through 71S; the former provisions of §§ 71N and 71Oare now contained in §§ 71R and 71S, respectively.
The 1987 amendment, added the fifth and sixth sentences of the second paragraph, relating to the areas of knowledge presumed to be possessed by skiers.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations, 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Jurisprudence
57A Am Jur 2d, Negligence §§ 258 et seq., 272 et seq.
15 Am Jur Trials 147, Skiing Accident Litigation.
Law Reviews
Dahlstrom, From Recreational Skiing to Criminally Negligent Homicide: A Comparison of United States’ Ski Laws in the Wake of People v. Hall.30 NE J on Crim & Civ Con 209 (Summer, 2004)
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
ALM GL c 71O, insulating ski area operator from liability for collisions between skiers, did not apply where plaintiff/skier was struck from behind by ski patrol member. Tilley v. Brodie Mountain Ski Area, Inc. (1992) 412 Mass 1009, 591 NE2d 202, 1992 Mass LEXIS 273.
ALM GL c 143 § 71O does not exempt ski area operator from liability for injuries caused by its agent. Tilley v. Brodie Mountain Ski Area, Inc. (1992) 412 Mass 1009, 591 NE2d 202, 1992 Mass LEXIS 273.
Summary judgment in favor of ski area operator was appropriate where plaintiff was skier, who slipped while approaching ski lift, since ALM GL c 143 § 71N specifically excludes liability for injury to skier arising out of risks inherent in sport of skiing, and a skier accepts, as a matter of law, risk that he or she might be injured in manner that falls within statutorily specified risks as well as risks contemplated by statutory scheme. Fetzner v. Jiminy Peak, The Mountain Resort (1995) 1995 Mass App Div 55, 1995 Mass App Div LEXIS 30.
Ski area operator was not liable for injuries sustained by skier who, after skiing over clumps of ice on trail, lost control and skied off trail edge into woods, since injuries arose out of risks inherent in skiing, and skier failed to control speed and direction. Spinale v. Pam F., Inc. (1995) 1995 Mass App Div 140, 1995 Mass App Div LEXIS 66.
Massachusetts Ski Safety Act (Act), ALM GL c 143, §§ 71N, 71O, was not intended to include a non-skiing sport like snow tubing; the Act did not relieve a ski operator from a claim for injuries from a snow tubing accident, and the ski operator’s summary judgment motion was denied. Burden v. Amesbury Sports Park, Inc. (2003, Super Ct) 16 Mass L Rep 744, 2003 Mass Super LEXIS 276.
Because snowboarders were included within the definition of “skiers” found in ALM GL c 143, § 71I, under ALM GL c 143, § 71O, a ski area operator and an instructor were not liable to a snowboarder who was injured when she ran into the instructor who was standing at the side of a ski hill. Rich v. Tamarack Ski Corp. (2008) 24 Mass L Rep 448, 2008 Mass. Super. LEXIS 324.
Although a ski area operator had a general duty to operate the ski areas under its control in a reasonably safe manner, pursuant to ALM GL c 143, § 71N(6), because a racing skier’s collision with a lift tower stanchion was off the race course and off the trail, ALM GL c 143, § 71O, placed the duty to avoid collisions on the skier alone. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
In applying ALM GL c 143, § 71O, while it may be unreasonable to presume that a child learning to ski knows the range of his own ability to ski on any slope, trail or area, a similar presumption cannot be applied to collegiate competitive skiers. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
In a negligence action brought by an inexperienced skier who was seriously injured when she struck a snow gun while skiing on a low intermediate trail, even though the ski area operator’s trail markings did not violate the Massachusetts Ski Safety Act, ALM GL c 143, § 71N, or contribute to the accident and even though the skier had an obligation under ALM GL c 143, § 71O to avoid collisions with an object so long as the object was not improperly marked, the ski area operator was not entitled to summary judgment on all the negligence claims because there were factual disputes remaining as to whether the snow gun was adequately marked and padded. Peresypa v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 84417.
§ 71P. Recreational Tramways — Actions Against Ski Area Operators.
For the purpose of sections seventy-one I to seventy-one R, inclusive, in any action brought against a ski area operator based on negligence, it shall be evidence of due care where the conduct of an operator has conformed with the provisions of this chapter or rules or regulations of the board made pursuant to section seventy-one J.
No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury. Failure to give the foregoing notice shall bar recovery, unless the court finds under the circumstances of the particular case that such ski area operator had actual knowledge of said injury or had reasonable opportunity to learn of said injury within said ninety-day period, or was otherwise not substantially prejudiced by reason of not having been given actual written notice of said injury within said period. In a case where lack of written notice, actual knowledge, or a reasonable opportunity to obtain knowledge of any injury within said ninety-day period is alleged by such ski area operator, the burden of proving substantial prejudice shall be on the operator.
An action to recover for such injury shall be brought within one year of the date of such injury.
HISTORY: 1978, 455, § 4.
NOTES: Cross References
Limitation of actions, generally, ALM GL c 260 § 1 et seq.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Jurisprudence
57A Am Jur 2d, Negligence § 9.
58 Am Jur 2d, Notice §§ 1-4, 27.
15 Am Jur Trials 177, Skiing Accident Litigation.
20 Am Jur Proof of Facts 2d 1, Liability for Skiing Accident.
46 Am Jur Proof of Facts 3d 1, Liability of Skier for Collision with Another Skier.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
Word “injury” as used in section does not include death. Grass v. Catamount Dev. Corp. (1983) 390 Mass 551, 457 NE2d 627, 1983 Mass LEXIS 1783.
Legislature did not intend to give ski industry same degree of protection from wrongful death claims as from claims of personal injury. Grass v. Catamount Dev. Corp. (1983) 390 Mass 551, 457 NE2d 627, 1983 Mass LEXIS 1783.
Statute of limitations for action for wrongful death arising out of injury to skier and brought against operator of ski area is GL c 229 § 2, the wrongful death statute, not GL c 143 § 71P. Grass v. Catamount Dev. Corp. (1983) 390 Mass 551, 457 NE2d 627, 1983 Mass LEXIS 1783.
Action by injured skier against ski area operator is governed by one-year limitations of action provision of GL c 143 § 71P, where plaintiff’s theories of recovery were negligence and breach of warranty as well as breach of contract, in renting defective ski equipment. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
One-year limitation period in GL c 143 § 71P is not applicable only to action for violation of duty prescribed by GL c 143 § 71N but applies to all personal injury actions brought by skiers against ski area operator arising out of skiing injuries. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
Legislature concluded that short period for commencement of action against ski area operator was in public interest, because of threat to economic stability of owners and operators of ski areas from personal injury claims. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
One-year limitation period applies to actions brought against ski area operators seeking compensation for injuries sustained while skiing. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
Personal injury action against ski area operators is barred by ALM GL c 143 § 71P, where Massachusetts resident on March 1, 1991 sued New Hampshire ski resort corporation in Massachusetts federal district court for injury suffered at resort on March 2, 1989, because Massachusetts conflict rules call for application of one-year Massachusetts limitations period for actions against ski area operators, instead of New Hampshire’s 2-year statute of limitations. Tidgewell v. Loon Mountain Recreation Corp. (1993, DC Mass) 820 F Supp 630, 1993 US Dist LEXIS 6457.
§ 71Q. Recreational Tramways — Leaving Scene of Skiing Accident.
Any person who is knowingly involved in a skiing accident and who departs from the scene of such accident without leaving personal identification or otherwise clearly identifying himself and obtaining assistance knowing that any other person involved in the accident is in need of medical or other assistance shall be punished by a fine of not less than one hundred dollars.
HISTORY: 1978, 455, § 4.
NOTES: Cross References
Fine and or imprisonment for leaving scene of accident involving automobiles, ALM GL c 90 § 24.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71R. Recreational Tramways — Penalties for Violations of §§ 71K and 71N or of Regulations Promulgated Under § 71J.
Whoever violates any provision of section 71K, 71N, or any rule or regulation made under the provisions of section 71J, shall be punished by a fine of not more than two hundred dollars; provided, however, that any person who operates a recreational tramway, after the license therefor has been suspended or revoked, shall be punished by a fine of one hundred dollars for each day of such operation.
HISTORY: 1968, 565, § 1; 1978, 455, § 4.
NOTES: Editorial Note
This section incorporates the provisions of former § 71N, 25 renumbered and amended by the 1978 act, to include the reference to violations of new § 71N and to increase the fine from $100 to $200 for violations other than operating on a suspended or revoked license, for which the daily fine was increased from $50 to $100.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Law Review References
§ 71S. Recreational Tramways — Applicability of Other Chapters; Jurisdiction of Public Utilities Department.
Recreational tramways shall not be subject to the provisions of chapters one hundred and fifty-nine, one hundred and sixty, one hundred and sixty-one, and one hundred and sixty-two, and shall not be subject to the jurisdiction or control of the department of telecommunications and energy.
HISTORY: 1968, 565, § 1; 1978, 455, § 4; 1997, 164, § 114.
NOTES: Editorial Note
This section contains the provisions of former § 71O, as renumbered by the 1978 act without amendment, except for 2 minor corrective changes.
The 1997 amendment, effective Nov 25, 1997, substituted “telecommunications and energy” for “public utilities”. Section 1 of the amending act provides as follows:
Section 1. It is hereby found and declared that:
(a) electricity service is essential to the health and well-being of all residents of the commonwealth, to public safety, and to orderly and sustainable economic development;
(b) affordable electric service should he available to all consumers on reasonable terms and conditions;
(c) ratepayers and the commonwealth will be best served by moving from (i) the regulatory framework extant on July 1, 1997, in which retail electricity service is provided principally by public utility corporations obligated to provide ultimate consumers in exclusive service territories with reliable electric service at regulated rates, to (ii) a framework under which competitive producers will supply electric power and customers will gain the right to choose their electric power supplier;
(d) the existing regulatory system results in among the highest, residential and commercial electricity rates paid by customers throughout the United States;
(e) such extraordinary high electricity rates have created significant adverse effects on consumers and on the ability of businesses located in the commonwealth to compete in regional, national, and international markets;
(f) the introduction of competition in the electric generation market will encourage innovation, efficiency, and improved service from all market participants, and will enable reductions in the cost of regulatory oversight;
(g) competitive markets in generation should (i) provide electricity suppliers with the incentive to operate efficiently, (ii) open markets for new and improved technologies, (iii) provide electricity buyers and sellers with appropriate price signals, and (iv) improve public confidence in the electric utility industry;
(h) since reliable electric service is of utmost importance to the safety, health, and welfare of the commonwealth’s citizens and economy, electric industry restructuring should enhance the reliability of the interconnected regional transmission systems, and provide strong coordination and enforceable protocols for all users of the power grid;
(i) it is vital that sufficient supplies of electric generation will be available to maintain the reliable service to the citizens and businesses of the commonwealth; and that.
(j) the commonwealth should ensure that universal service are energy conservation policies, activities, and services are appropriately funded and available throughout the commonwealth, and should guard against the exercise of vertical market power and the accumulation of horizontal market power;
(k) long-term rate reductions can be achieved most effectively by increasing competition and enabling broad consumer choice in generation service, thereby allowing market forces to play the principal role in determining the suppliers of generation for all customers;
(l) the primary elements of a more competitive electricity market will be customer choice, preservation and augmentation of consumer protections, full and fair competition in generation, and enhanced environmental protection goals;
(m) the interests of consumers can best be served by an expedient and orderly transition from regulation to competition in the generation sector consisting of the unbundling of prices and services and the functional separation of generation services from transmission and distribution services;
(n) the restructuring of the existing electricity system should not undermine the policy of the commonwealth that electricity bills for low income residents should remain as affordable as possible;
(o) the commonwealth should enter into a compact with the other New England states and New York State, that provides incentives for the public and investor owned electricity utilities located in such states to sell energy to retail customers in Massachusetts which adheres to enforceable standards and protocols and protects the reliability of interconnected regional transmission and distribution systems;
(p) since reliable electricity service depends on conscientious inspection and maintenance of transmission and distribution systems, to continue and enhance the reliability of the delivery of electricity, the regional network and the commonwealth, the department of telecommunications and energy should set stringent and comprehensive inspection, maintenance, repair, replacement, and system service standards;
(q) the transition to expanded customer choice and competitive markets may produce hardships for employees whose working lives were dedicated to their employment;
(r) it is preferable that possible reductions in the workforce directly caused by electricity restructuring be accomplished through collective bargaining negotiations and offers of voluntary severance, retraining, early retirement, outplacement, and related benefits;
(s) the transition to a competitive generation market should be orderly and be completed as expeditiously as possible, should protect electric system reliability, and should provide electricity corporation investors with a reasonable opportunity to recover prudently incurred costs associated with generation-related assets and obligations, within a reasonable and fair deregulation framework consistent with the provisions of this act;
(t) the recovery of such prudently incurred costs shall occur only after such electric companies take all practicable measures to mitigate stranded investments during the transition to a competitive market;
(u) such charges associated with the transition should be collected over a specific period of time on a non-bypassable basis and in a manner that does not result in an increase in rates to customers of electricity corporations;
(v) financial mechanisms should be available that allow electricity corporations to securitize that portion of their transition costs which cannot be divested in the marketplace and which concurrently minimize transition charges to consumers;
(w) the initial benefit of this transition to a competitive market shall result in consumer electricity rate reductions of at least 10 per cent beginning on March 1, 1998, as part of an aggregate rate reduction totaling at least 15 per cent upon the subsequent approval of divestiture and securitization; and.
(x) the general court seeks, through the enactment of this legislation, to establish the parameters upon which a restructuring of the electricity industry shall be based and which reflects the public policy decisions for the commonwealth designed to balance the needs of all participants in the existing and future systems;
Therefore, it is found that it is in the public interest of the commonwealth to promote the property and general welfare of its citizens, a public purpose for which public money may be expended, by restructuring the electricity industry in the commonwealth to foster competition and promote reduced electricity rates through the enactment of the following statutory changes.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Law Review References
Georgia Ski Safety Act
Posted: July 22, 2013 Filed under: Georgia, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Georgia, Georgia Ski Safety Act, Recreation, Ski, Ski Resort, Skier, Skier Safety Act, Snowboarder Leave a commentGeorgia Ski Safety Act
OFFICIAL CODE OF GEORGIA ANNOTATED
Copyright 2012 by The State of Georgia
TITLE 43. PROFESSIONS AND BUSINESSES
CHAPTER 43A. SNOW SKIING SAFETY
GO TO GEORGIA STATUTES ARCHIVE DIRECTORY
O.C.G.A. § 43-43A-1 (2012)
§ 43-43A-1. Definitions
As used in this chapter, the term:
(1) “Base area lift” means a passenger tramway to gain access to some other part of the ski area.
(2) “Competitor” means a skier engaging in competition or preparing for competition on a slope or trail designated by the ski area or used by the skier for the purpose of competition or training for competition.
(3) “Conditions of ordinary visibility” means all periods of daylight, and, when visibility is not restricted by weather or other atmospheric conditions, nighttime.
(4) “Inherent dangers and risks of skiing” means categories of danger or risks of skiing, or conditions of the sport of skiing that cause or can cause any injury, death, or property damage, including:
(A) Changing weather conditions;
(B) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;
(C) Surface or subsurface conditions other than those specified in subparagraph (B) of this paragraph, including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;
(D) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;
(E) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and
(F) Collisions with other skiers unless such collisions are caused by the failure on the part of other skiers to conduct themselves in accordance with the provisions of this chapter.
(5) “Passenger” means a person who is lawfully being transported by a passenger tramway.
(6) “Passenger tramway” means any mechanical device used to transport passengers uphill, but such term does not include over-snow vehicles.
(7) “Ski area” means all snow ski slopes or trails and other places under the control of a ski area operator at a defined business location within this state.
(8) “Ski area operator” means an individual, partnership, corporation, or other commercial entity who owns, manages, or otherwise directs or has operational responsibility for any ski area.
(9) “Ski slopes or trails” means those areas open to the skiing public and designated by the ski area operator to be used by a skier. The designation may be generally set forth on trail maps and further designated by signage posted to indicate to the skiing public the intent that the areas be used by the skier for the purpose of skiing. Nothing in this paragraph implies that ski slopes or trails may not be restricted for use at the discretion of the ski area operator.
(10) “Skier” means any person who uses any part of a ski area for the purpose of skiing, snowboard skiing, or sliding or moving on any device other than a motorized device or any person except a passenger who uses any of the facilities of the ski area, including the ski slopes and trails.
(11) “Surface lift” means any passenger tramway that allows the skier’s sliding equipment to stay in contact with the skier and the snow during all of the uphill transportation.
§ 43-43A-2. Use of passenger tramway; passenger rules
(a) No passenger shall use a passenger tramway if the passenger does not have sufficient knowledge, ability, or physical dexterity to negotiate or use the facility safely unless and until the passenger has asked for and received information sufficient to enable the passenger to use the equipment safely. A passenger is required to follow any written, verbal, or other instructions that are given by ski area personnel regarding the use of the passenger tramway.
(b) No passenger shall:
(1) Attempt to enter, use, exit, or leave a passenger tramway except at a location designated by ski area signage for that purpose, except that, in the event of a stoppage of the passenger tramway, a passenger may exit under the supervision and direction of the operator or its representatives, or, in the event of an emergency, a passenger may exit in order to prevent an injury to the passenger or others;
(2) Throw, drop, or release any object from a passenger tramway except as directed by the operator or its representatives;
(3) Act in any manner that may interfere with the proper or safe operation of the passenger tramway or cause any risk, harm, or injury to any person;
(4) Place in an uphill track of any surface lift any object that may cause damage to property or injury to any person;
(5) Use or attempt to use any passenger tramway marked as closed; or
(6) Disobey any instructions posted in accordance with this chapter or any verbal or other instructions of the ski area operator or its lawful designee regarding the use of passenger tramways.
§ 43-43A-3. Sign system; inspection; explanation of signs and symbols; warning signs; degree of difficulty signs
(a) Each ski area operator shall maintain a sign system with information for the instruction of passengers and skiers. Signs must be in English and visible in conditions of ordinary visibility and, where applicable, lighted for nighttime passengers. Without limitation, the signs shall be posted:
(1) At or near the loading point of each passenger tramway, regardless of the type, advising all persons that if they are not familiar with the operation of the device, they must ask the operator of the device for assistance and instructions and that they must understand such instructions before they attempt to use the passenger tramway; and
(2) At or near the boarding area of each lift, setting forth the warning regarding inherent dangers and risks and duties as provided in this chapter.
(b) The ski area operator, before opening a passenger tramway to the public each day, shall inspect the passenger tramway for the presence and visibility of all required signs.
(c) The ski area operator shall post a sign visible to skiers who are proceeding to the uphill loading point of each base area lift which shall depict and explain the following signs and symbols that a skier may encounter at the ski area:
(1) A green circle and the word “easier” designating the ski area’s least difficult trails and slopes;
(2) A blue square and the words “more difficult” designating the ski area’s trails and slopes that have a degree of difficulty that lies between the least difficult and most difficult trails and slopes;
(3) A black diamond and the words “most difficult” designating the ski area’s most difficult trails and slopes;
(4) Two black diamonds and the words “most difficult” designating a slope or trail which meets the description of “most difficult” but which is particularly challenging; and
(5) Crossed poles or other images clearly indicating that a trail or slope is closed and may not be used by skiers.
(d) If applicable, a warning sign shall be placed at or near the loading point of a passenger tramway indicating that it provides access to only “most difficult” or “more difficult” slopes or trails.
(e) The ski area operator shall place a sign at or near the beginning of each trail or slope indicating the relative degree of difficulty of that particular trail or slope.
§ 43-43A-4. Warning notice
(a) The ski area operator shall post and maintain signs that contain the following warning notice:
“WARNING: Under Georgia law, every skier accepts the risk of any injury or death and damage to property resulting from any of the inherent dangers or risks of skiing. The inherent dangers or risks of skiing, or conditions of the sport of skiing that cause or can cause injury, death, or property damage, include:
(1) Changing weather conditions;
(2) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;
(3) Surface or subsurface conditions other than those specified in paragraph (2), including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;
(4) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;
(5) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and
(6) Collisions with other skiers.”
(b) A warning sign as described in subsection (a) of this Code section shall be placed:
(1) At the ski area in the location where lift tickets or ski school lessons are sold;
(2) In the vicinity of the uphill loading point of each base area lift; and
(3) At such other places as the ski area operator may select.
(c) Each sign required by subsection (a) of this Code section shall be no smaller than 3 feet by 3 feet and shall be white or yellow with black and red letters as specified in this subsection. The word “WARNING” shall appear on the sign in red letters. The warning notice specified in subsection (a) of this Code section shall appear on the sign in black letters with each letter being a minimum of one inch in height.
(d) Every passenger tramway ticket sold may contain the warning notice specified in subsection (a) of this Code section.
§ 43-43A-6. Revocation of skiing privileges
Each ski area operator, upon finding a person skiing in violation of any posted regulations governing skiing conduct, may revoke that person’s skiing privileges. This Code section shall not in any way be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or other skiers’ careless or reckless behavior, including any skier’s violation of any duties set forth in this chapter.
§ 43-43A-7. Duties and responsibilities of each skier; assumption of risk
Any other provision of law to the contrary notwithstanding:
(1) Each individual skier has the responsibility for knowing the range of his or her own ability to negotiate any ski slope or trail or any portion thereof and must ski within the limits of his or her ability. Each skier expressly accepts and assumes the risk of any injury or death or damage to property resulting from any of the inherent dangers and risks of skiing, as set forth in this chapter; provided, however, that injuries sustained in a collision with another skier are not an inherent risk of the sport for purposes of this Code section;
(2) Each skier has the duty to maintain control of his or her speed and course at all times and to maintain a proper lookout so as to be able to avoid other skiers and objects, natural or manmade. The skier shall have the primary duty to avoid colliding with any persons or objects below him or her on the trail;
(3) No skier shall ski on a ski slope or trail that has been posted as closed in accordance with the provisions of this chapter;
(4) Each skier shall stay clear of all snow grooming or snow making equipment, vehicles, lift towers, signs, and any other equipment at the ski area;
(5) Each skier shall obey all posted information, warnings, and requirements and shall refrain from acting in any manner that might cause or contribute to the injury of the skier or any other person. Each skier shall be charged with having seen and understood all information posted as required or permitted in this chapter. Each skier shall locate and ascertain the meaning of all signs posted in accordance with this chapter;
(6) Each sliding device used by a skier shall be equipped with a strap or other device designed to help reduce the risk of any runaway equipment should it become unattached from the skier;
(7) No skier shall cross the uphill track of any surface lift device except at locations designated by the operator, nor shall any person place any object in the uphill track of such a device;
(8) Before beginning to ski from a stationary position, or before entering a ski slope or trail, the skier shall have the duty of yielding to moving skiers already using the slope or trail;
(9) No skier shall stop where he or she obstructs a trail or is not visible from higher on the slope or trail; and
(10) No skier shall board or use or attempt to board or use any passenger tramway of any type or use any ski slope or trail while that skier’s ability to do so is impaired by alcohol, drugs, or any controlled substance.
Recreation Law 