Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380
Posted: June 9, 2013 Filed under: California, Climbing Wall, Legal Case, Release (pre-injury contract not to sue) | Tags: Climbing Wall, Los Angeles County Superior Court, Paramount Pictures, Plaintiff, Rock climbing, Vinson Leave a commentVinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380
Robert Vinson, Plaintiff and Respondent, v. Paramount Pictures Corporation et al., Defendants and Appellants.
B237965
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
2013 Cal. App. Unpub. LEXIS 3380
May 14, 2013, Opinion Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC446030, Michelle R. Rosenblatt, Judge.
DISPOSITION: Reversed and remanded.
CORE TERMS: rope, inflatable, unambiguous, climbing, nonsuit, rock-climbing, fitness, economic damages, new trial, injury suffered, sponsored, noneconomic damages, climber’s, climb, private agreement, ordinary negligence, recreational activities, expressing, misconduct, membership, participating, partial, harness, signing, pulley, top, risk of injury, claims of negligence, injuries resulting, preclude liability
COUNSEL: Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller; Matthew B. Stucky; Pollard Mavredakis Cranert Crawford & Stevens and Terrence L. Cranert for Defendants and Appellants.
Law Offices of I. Allan Oberman, I. Allan Oberman; and Debra Fischl for Plaintiff and Respondent.
JUDGES: EPSTEIN, P. J.; MANELLA, J., SUZUKAWA, J. concurred.
OPINION BY: EPSTEIN, P. J.
OPINION
Appellants Paramount Pictures Corporation, Viacom, Inc. and Elite Special Events, Inc. (collectively appellants) appeal from a money judgment in favor of respondent Robert Vinson. The jury awarded Vinson past economic damages sustained after a fall from an inflatable rock-climbing wall at an event hosted and sponsored by appellants, finding appellants’ negligence caused the harm to Vinson. They contend: (1) the trial court erred in denying appellants’ motion for nonsuit because a release and waiver signed by Vinson precluded a finding of liability; (2) the trial court erred in finding the primary assumption of the risk doctrine did not apply, and its failure to instruct the jury on the relevant duty owed by appellants was prejudicial; [*2] and (3) the trial court abused its discretion by granting a partial new trial on the limited issue of damages.
We conclude the release signed by Vinson was valid as to the rock-climbing activity underlying his claims. Vinson expressly consented to waive any claims based on injuries incurred while participating in any activities sponsored by appellants, precluding liability. We reverse the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Vinson was a member of the Paramount “Studio Club” (the Club). To be a member of the Club, he was required to complete an application and pay a fee. The application contained a section entitled “Assumption of Risk and Release” (the Release). The Release provided, in relevant part: “By enrolling as a member in [the Club], member hereby acknowledges that from time to time the Club sponsors certain events and activities that might present a risk of harm to the participants. In consideration of the Club’s arranging such events and activities . . . , member hereby assumes all risks associated with or resulting from such participation and member . . . releases . . . [appellants] of and from any and all claims . . . , which member may have or which may hereafter accrue [*3] on account of . . . any and all known and unknown, foreseen and unforeseen bodily and personal injuries . . . resulting or to result from any accident . . . which may occur as a result . . . of the member’s participation in any of the events or activities sponsored by the Club.” In January 2009, Vinson signed the application and initialed the Release provision.
In December 2009, the Club held a holiday party at Paramount Studios. The party included carnival games, food booths and performances. One attraction was an inflatable rock-climbing wall. The wall was approximately 30 feet tall with inflated protrusions which serve as hand and foot holds for potential climbers. When climbing on this type of wall, a climber is strapped into a harness connected to a rope. The rope then passes through a pulley at the top of the wall and loops back down to an operator of the wall. That operator uses a device called a grigri to control the amount of rope let out. The parties presented conflicting accounts of what occurred during Vinson’s participation in this activity.
Vinson claimed he was given no instruction on how to secure the harness or how to climb the wall. He testified that once he reached [*4] the top of the wall, he asked the two operators attending the wall what to do next. Vinson said the operators told him to remove his hands from the wall, grab the rope, and lean back. Shortly thereafter, all of the tension in the rope gave way and Vinson went into a free fall. He stated that he hit an inflatable apron at the base of the wall, bounced at least three feet into the air, then came crashing down on the concrete pavement surrounding the wall.
Appellants presented testimony that the operator holding the rope for Vinson gave him instructions on how to put on the harness and how to climb the wall. Once Vinson reached the top, he began to jump up and down off the wall and push back and forth, in response to encouragement from his friends below. Testimony indicated that the operator holding the rope told Vinson to stop and eventually began lowering him down the wall. At some point between 50 and 75 percent down the wall, enough slack was released on the rope to allow Vinson to reach the bottom. Vinson jumped and landed on the inflatable apron and, according to both of the operators, never hit the concrete.
Based on testimony from the operators themselves and an expert in rock-wall [*5] climbing, the operators should have had full control of the rope at all times, regardless of what the climber was doing. The amount of rope released from such a mechanism is solely controlled by the operators and thus the pace of a climber’s descent is determined by the operator releasing rope through the pulley system. The operators testified that neither of them had seen the manual that accompanied the inflatable wall and provided detailed instructions on how to operate it. The operator who controlled Vinson’s climb received only one hour of training. An expert testified that one half to a full day of training is typical, followed by constant supervision during the first day of operating a wall. The expert testified that, based on the evidence, the operator in this case failed to understand the mechanics of the pulley system and was negligent in his operation during Vinson’s climb. Vinson produced evidence that he suffered physical and psychological injuries as a result of the fall, leading to lost wages and lost earnings.
Vinson brought suit against appellants for past and future economic damages and past and future noneconomic damages. At the close of Vinson’s evidence, appellants [*6] moved for nonsuit on two grounds. First, they argued the Release, signed by Vinson, constituted a waiver of any claims arising out of participation in any events at the Club, precluding liability. The trial court found the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties” and denied appellants’ motion on that ground. Second, they argued the primary assumption of the risk doctrine should apply to preclude liability because Vinson assumed the risks inherent in climbing the wall. They argued that general negligence principles did not apply, and because there was no evidence that the operators increased the risk of injury beyond that inherent in the activity, a nonsuit should be granted. The court found the climbing of an inflatable rock wall was somewhere between a carnival ride and a sport. It concluded the doctrine did not apply and denied the motion for nonsuit.
The jury returned a verdict for Vinson, finding appellants were negligent and that their negligence caused Vinson’s injuries. It awarded Vinson $70,620 in past economic damages, but nothing for future economic damages and nothing for the noneconomic damages [*7] he sought. Vinson moved for new trial limited to the issue of general damages or, in the alternative, for an addittur in an amount to be determined by the court. The court concluded there was no proper reason for the jury to award Vinson over $70,000 in special damages yet find that he did not incur any pain and suffering as a result of the incident. It reasoned that even if the jury found Vinson was malingering, and thereby inflating his claim for general damages, awarding no noneconomic damages was improper. The court granted Vinson’s motion for a partial new trial subject to appellants’ consent to an additur in the amount of $80,000. Appellants declined to accept the additur, and this appeal followed.
DISCUSSION
Appellants contend the trial court erred in denying their motion for nonsuit on two grounds. They argue the court should have found Vinson’s signature on the Release precluded liability. They also argue that even if the Release did not bar the claim, voluntarily participating in the climbing activity involved an assumption of the risk that negated appellants’ duty to eliminate the risks inherent in that activity.
Persons generally have a duty to use due care to avoid injuring [*8] others, and liability may result if their negligent conduct causes injury to another. (Civ. Code, § 1714; Knight v. Jewett (1992) 3 Cal.4th 296, 315.) However, a private party may expressly agree to release any claims of negligence against another by contract; such an agreement “is valid unless it contravenes public policy.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1292, p. 686; see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758 [future liability for ordinary negligence generally may be released].)1 Implied assumption of the risk, on the other hand, involves exemption from liability based on the nature of a specific activity and the relationship of the parties to that activity, rather than on an express agreement. (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)
1 Our Supreme Court has noted that California courts have invalidated releases of liability for ordinary negligence when it is determined that the “particular release concerns a service that transcends a purely private agreement and affects the public interest.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 757-758.) But, private agreements [*9] made in connection with various sporting events or recreational activities generally have been upheld, as they do not involve necessary services and therefore do not contravene public policy or “transcend the realm of purely private matters.” (Id. at p. 759.) We find this release, signed in consideration for participation in various activities at a private club, constitutes “a purely private agreement”; Vinson’s participation in the rock-climbing activity did not involve necessary services and was a recreational activity well within the broad range of activities in which a number of California cases have upheld express waivers. (Id. at pp. 757, 759-760.)
“To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490, declined to follow by Madison v. Superior Court (1988) 203 Cal.App.3d 589, 602, fn. 9.) “‘It is also necessary that the expressed terms of the agreement be applicable to the particular misconduct of the defendant . . . .’ [Citation.].” (Ibid., italics omitted.) [*10] “With respect to the question of express waiver, the legal issue is not whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484.)
The trial court denied appellants’ motion for nonsuit based on the signing of the Release, concluding it did not apply to Vinson’s claim because the “release [did] not ensure that [Vinson] knew the risks and hazards of this activity when he was signing a waiver of liability for negligence” on appellants’ part. The court reasoned that the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties.”
Appellants argue the Release was explicitly intended to cover any activity at the Club and was sufficiently unambiguous to cover the activity at issue. They argue it was unnecessary to specifically identify rock-climbing as a covered activity, or the risks involved, in order for the Release to be effective. We agree.
Here, the plain language of the Release is explicit as to its breadth. According to its terms, the signer [*11] was releasing “any and all claims” against appellants based on “any and all injuries” resulting from “any accident” arising out of his or her “participation in any of the events or activities sponsored by the Club.” Vinson argues the specific activity involved here, inflatable rock wall climbing, was not comprehended by the release. Similarly, the trial court relied on the theory that the Release failed to identify the specific risk involved or that the risks were unknown to Vinson when he signed it. However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601.) Furthermore, “[t]he inclusion of the term ‘negligence’ is simply [*12] not required to validate an exculpatory clause.” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 67.)
In Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th at page 67, the court dealt with a release in the fitness center context. The court found the defendant health club unremarkably foresaw potential injuries to members of its club and rationally required them to sign a release and assumption of risk as a condition of membership. (Ibid.) The release broadly covered injuries “‘arising out of or connected with the use of the fitness center.”‘ (Id. at p. 69.) The court found the release covered the injury suffered by the plaintiff as it occurred while using the fitness center.
In Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at page 1358, the court discussed a release signed by the plaintiff upon joining the defendant fitness center. The release stated the signer was waiving liability for injuries suffered while on the defendant’s premises, “‘whether using exercise equipment or not.'” (Ibid.) The court found the purpose of the release was to protect the defendant from future liability in consideration for granting the plaintiff access to defendant’s premises. [*13] (Ibid.) The plaintiff was then injured while adjusting a television on defendant’s premises. (Id. at p. 1355.) The court rejected the plaintiff’s argument that the release should not apply to an activity which was secondary to his membership in the fitness center, especially when the risk of a falling television was not known to him at the time the release was signed. (Id. at pp. 1357-1359.) The court concluded that the broad, unambiguous language of the release served to preclude liability on the part of the defendant for any injuries suffered by plaintiff on defendant’s premises. (Id. at p. 1358.)
Here, Vinson signed a release of all claims for any injuries suffered on appellants’ premises in consideration for membership in the Club and access to certain events. Similar to the releases discussed in the cases above, we find the language of the release signed by Vinson broad and unambiguous. The fact that the activity resulting in the injury was not specifically mentioned in the express terms of the release does not make it ineffective. Having consented to release any claims against appellants based on injuries incurred while participating in any activities at the Club, Vinson absolved [*14] appellants of liability for ordinary negligence during his participation in this particular activity.
Because we have concluded Vinson expressly released appellants from liability, thereby serving as a bar to his claim of negligence, appellants’ contentions regarding primary assumption of the risk are moot.
Appellants also contend the jury’s decision to award substantial economic damages, but no noneconomic damages, was clearly a compromise verdict. They argue the trial court’s granting of a partial new trial solely on the issue of damages was an abuse of discretion, and a full new trial should have been ordered. Again, we need not address this issue as we have concluded the negligence claim was precluded by Vinson’s signing of the Release.
DISPOSITION
The judgment is reversed, and the case remanded with instructions. Appellants to have their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
Good News ASI was dismissed from the lawsuit
Posted: June 3, 2013 Filed under: Climbing Wall, Release (pre-injury contract not to sue), Washington | Tags: ASI, Climbing Rope, Climbing Wall, Jim Moss, Kosseff, Negligence, Rock climbing, Super Shut, Washington, Whitman College Leave a commentBad news, the post-accident investigation proved the college was negligent according to the court.
Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Plaintiff: Stephanie Foster, et al.
Defendant: Alex Kosseff, et al.
Plaintiff Claims: Negligence: Plaintiff was the intended beneficiary of the defendant’s work;
Defendant Defenses: No duty owed to the plaintiff
Holding: For the defendant
This is a follow-up to the article, I wrote Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. The original article was about a motion to dismiss which the defendant safety audit company lost.
This article is the result of a motion for summary judgment filed on behalf of the defendant auditor which the court granted.
The plaintiff was a student at the defendant college, Whitman College, and also worked in the Outdoor Program at the college. While working the plaintiff was asked to bring down the ropes still on the climbing wall. She climbed up to a platform next to the wall and removed the ropes. She then “hooked” into the remaining rope intending to rappel suffering severe injuries to her spine.
The initial report prepared by the defendant auditors (meaning the individuals and the company the individual(s) worked for) was titled “Draft Risk Management Audit.” The report included extensive language about what the audit would and would not do and was quoted by the court.
The college hired the same auditor to investigate the accident. (Can you say conflict of interest?) The auditor submitted a report on his investigation into the accident. The report stated that the plaintiff had climbed above the Super Shut anchors which released the rope causing her to fall.
The court reviewed the accident report prepared by the defendant and made the following statement.
Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.
Summary of the case
The first argument the court reviewed was whether the plaintiff was an intended beneficiary of the work with the defendant auditor. The court quickly found that to be true. The Draft Audit stated the audit was being done for the college, employees, and students. The college hired the audit for the benefit of the college, students, and employees.
The second issue discussed was the scope of an audit. The court first went through the elements to prove negligence and what makes up the first part of the element’s duty, under Washington’s law.
There are four elements in a common law negligence claim in Washington: duty, breach, causation and damages. As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what risks is the obligation owed?”
Under Washington’s law, someone who inspects the premises of another does not become the insurer of anyone injured by the negligence of the inspection. In most states, an inspecting party is only “liable for undiscovered hazards which he or she undertook to discover in the first place.” Meaning, you are only liable for what you say you are going to discover and don’t.
Consequently, the defendant could not be liable, unless he had agreed to inspect the elements of the wall. The audit was directed at procedures and programs, not equipment. On top of that, even if the audit looked at equipment, it did not look at how that equipment was used or in this case, misused.
Because the audit was not directed at the equipment that caused the accident, the defendant auditor was dismissed from the suit.
So Now What?
1. If you are a college, with a climbing wall, it needs to be inspected by engineers.
2. If you are a college, do not create a conflict of interest by hiring the company that gave you a review to investigate an accident that the review might have missed. Again, can you say Conflict of Interest?
3. If you are any business do not have an accident investigated by anyone other than who your attorney or insurance company hires. Here, the defendant with the conflict of interest nailed the defendant college to the judgment wall with its report.
Because the report was not done by legal counsel, the report can be used by the plaintiff to prove the defendant was negligent. That, however, will not be too difficult since the court in this decision already came to that conclusion based upon the accident report. However, a report that was protected by privilege would not have hung the defendant.
Although the plaintiff is probably upset that one defendant was dismissed, they have to be happy with the decision because of this issue.
The initial outcome of this case is good; the company being paid to review the college was dismissed from the case. However, the long-term effects are multiple.
· Initially, the one defendant won, but only by sinking its co-defendants.
· Long term, colleges are going to be hesitant to build climbing walls because this case is going to settle or go to trial for a large amount of money. Spinal cord injuries are multimillion-dollar cases.
· The entire industry has to wise up. Contracts that are created by legitimate risk management firms will be signed in advance and have tons of disclaimer and indemnification language. However, the issue is not who can sue or defend who, but what are you getting for your money?
As a side note, this part of the Draft Audit was quoted by the court.
If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense.
Instead of a defense, it created a legal claim and proof of negligence…….
Relevant Cases:
Other Cases concerning Climbing Walls:
Gross Negligence beats a release…but after the trial
Poorly written release gave the plaintiff’s the only chance they had to win
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 |
Outdoor Recreation Insurance, Risk Management, and Law
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Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Posted: June 3, 2013 Filed under: Climbing Wall, Legal Case, Release (pre-injury contract not to sue), Washington | Tags: Climbing Wall, Fall, Gary Foster, Risk Management, Ropes, Stephanie Foster, Susan Foster, THOMAS O. RICE, Washington, Whitman College, William S Finger 1 CommentTo Read an Analysis of this decision see
Good News ASI was dismissed from the lawsuit
Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Stephanie Foster, et al., Plaintiffs, v. Alex Kosseff, et al., Defendants.
NO: 11-CV-5069-TOR
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
2013 U.S. Dist. LEXIS 40566
March 22, 2013, Decided
March 22, 2013, Filed
PRIOR HISTORY: Foster v. Kosseff, 2013 U.S. Dist. LEXIS 5380 (E.D. Wash., Jan. 14, 2013)
COUNSEL: [*1] For Stephanie Foster, Gary Foster, Susan Foster, Plaintiffs: Allen M Ressler, LEAD ATTORNEY, Ressler and Tesh PLLC, Seattle, WA; William S Finger, LEAD ATTORNEY, Frank & Finger PC, Evergreen, CO.
For Alex Kosseff, Adventure Safety International LLC, Defendants: Heather C Yakely, LEAD ATTORNEY, Evans Craven & Lackie PS – SPO, Spokane, WA.
JUDGES: THOMAS O. RICE, United States District Judge.
OPINION BY: THOMAS O. RICE
OPINION
ORDER GRANTING DEFENDANT ALEX KOSSEFF’S AND DEFENDANT ADVENTURE SAFETY INTERNATIONAL’S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is a motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80). This matter was heard with oral argument on March 22, 2013. William S. Finger appeared on behalf of the Plaintiffs. Heather C. Yakely appeared on behalf of Defendants Alex Kosseff and Adventure Safety International. The Court has reviewed the briefing and the record and files herein, and is fully informed.
BACKGROUND
Defendants Alex Kosseff (“Kosseff”) and Adventure Safety International LLC (“ASI”) have moved for summary judgment on Plaintiffs’ negligence claims. Defendants assert that these claims fail as a matter of law because neither Kosseff nor ASI [*2] owed Plaintiff Stephanie Foster (“Ms. Foster”) a duty of care to identify the dangerous condition which caused her to fall from the Whitman College climbing wall on April 28, 2008.
FACTS
Ms. Foster enrolled as a freshman at Whitman College in the fall of 2007. During the 2007-2008 academic year, Plaintiff enrolled in several rock climbing classes offered through the Whitman College Outdoor Program (“Outdoor Program”). She also accepted a paid position as a student climbing instructor for the Outdoor Program. As a result of this coursework and employment, Plaintiff participated in several climbing sessions on a sport climbing wall located on the Whitman College campus.
On April 28, 2008, Ms. Foster was summoned to the climbing wall by her supervisor, Brien Sheedy (“Sheedy”) to assist in removing several climbing ropes that were hanging from the top of the wall. At Sheedy’s direction, Ms. Foster ascended the wall, climbed atop a platform adjacent to the wall, and removed all but one of the ropes. Having completed her task, Ms. Foster lowered herself back onto the climbing wall with the intention of rappelling down the wall using the remaining rope. Shortly after beginning her descent, however, [*3] the remaining rope became unhooked from two “Super Shut” anchors located near the top of the wall. The release of the rope caused Ms. Foster to free fall approximately 35 feet to the ground, resulting in serious permanent injury to her spine.
In April of 2007, one year prior to Ms. Foster’s fall, Whitman College hired ASI to perform a “risk management audit” of the Outdoor Program. The purpose and scope of this audit are central to the outcome of this case. Unfortunately, the terms of the agreement between Whitman College and ASI were never reduced to writing. In any event, it is undisputed that the audit was conducted by Defendant Alex Kosseff (“Kosseff”) over the course of four days on the Whitman College campus. It is further undisputed that Whitman College paid $3,000 for the audit.
During the course of the audit, Kosseff met with several students and administrators who were involved with the Outdoor Program. He also observed several regularly-scheduled activities, including an open climbing wall session, a pool session offered to students in a kayaking class, a climbing wall session offered to students in a rock climbing class, a training session for an upcoming climbing competition, [*4] and a debriefing session for a glacier mountaineering course. ECF No. 153-5 at 7.
After completing his site visit, Kosseff prepared and submitted a written report of his findings and recommendations to Whitman College. The authenticity of this document, which bears the title, “Draft Risk Management Audit,” (hereafter “audit report”) is undisputed. 1 The audit report contains several passages which are relevant to the issues raised in the instant motion. One such passage, under the heading “Audit Process Introduction” reads as follows:
The ASI Risk Management Audit program is a voluntary program aimed at improving risk management practices in outdoor education and recreation. This program has been designed by ASI and the audit process is handled by one of our experienced staff members. We recognize that each program is unique and that one standardized risk management plan will not work for every organization. With this in mind, the ASI Risk Management audit process does not prescribe specific approaches, but rather aims to assess that different aspects [of] risk management are being addressed.
ASI’s audit program is designed as an accessible step for organizations that want to reduce the [*5] risk of an accident taking place. It gives organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards. If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense. ASI’s audit program focuses exclusively on risk management and safety concerns and does not address educational, marketing, business and financial management, or other issues.
ECF No. 153-5 at 5.
1 ASI apparently contemplated issuing a final draft after Whitman College had reviewed and implemented its recommendations, but no final draft was ever issued. ECF No. 84-1 at Tr. 35-36.
In another passage, under the heading “Audit Program Disclaimer,” the audit report states:
The nature of Adventure Safety International Risk Management Audit is to gain a general understanding of the risk management practices at the time of the review. This is done primarily through review of the self assessment responses supplied by the management of the program being accredited. This is supplemented with onsite observation and interviews, which occur during a brief site visit.
The major aim [*6] of this voluntary audit is to benchmark the program against the risk management guidelines that ASI believes will promote good risk management practice. The benchmarks have been established, at three levels, in many (but not all) areas of risk management planning. The intent is to identify and share good practice amongst outdoor programs and over time to raise the level of risk management practice.
The audit cannot provide any guarantee that future operations will be free of safety incidents. Rather the audit documents that at the time of the review risk management practices met or exceeded risk management guidelines established by ASI and based on current industry practices.
ECF No. 153-5 at 6.
Finally, the audit report documents ASI’s substantive findings and recommendations across 27 different program evaluation criteria. These criteria vary widely, ranging from training and oversight of activity leaders to safety of passenger vans and drivers. Included among these criteria are ratings for “Equipment” and “Facilities.” ECF No. 153-5 at 30, 35. The audit report assigns the Outdoor Program the highest rating in both categories, noting that the quality of the program’s equipment was “exceptional,” [*7] and that those responsible for the program routinely inspect facilities for potential safety hazards. ECF No. 153-5 at 30, 35.
Shortly after Ms. Foster’s fall on April 28, 2008, Whitman College hired ASI to investigate the cause of the accident. ASI assigned Kosseff to conduct the investigation. Kosseff ultimately concluded that the accident occurred as a result of Plaintiff climbing above the Super Shut anchors and subsequently descending below them. According to Kosseff, the Super Shut anchors were not designed to accommodate a person climbing above them; rather, the anchors were designed for use only at “dead end” locations on a sport climbing wall. Kosseff further noted that the manufacturer of the anchors had issued warnings against climbing above them, noting that the risk of a climbing rope becoming disengaged from an anchor in this situation was about “50/50.” Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.
In the instant lawsuit, Plaintiffs assign fault to Kosseff for failing to identify the risks posed by the Super Shut anchors during the ASI’s risk management audit. [*8] Had Kosseff identified these risks and reported them to Whitman College, Plaintiffs assert, the problem could have been corrected before Ms. Foster was injured. For the reasons discussed below, the Court finds that ASI’s duty of care arising from the risk management audit did not extend to identifying the risk posed by improper use of the Super Shut anchors.
DISCUSSION
The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
For [*9] purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute as to any such fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling on a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Finally, the court may only consider evidence that would be admissible at trial. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002).
A. Plaintiff Was an Intended Beneficiary of the Risk Management Audit
In its prior order denying Defendants’ motion to dismiss, the Court remarked that, in its view, the viability of Plaintiffs’ negligence claim hinged on their ability to establish that Ms. Foster was an intended third-party beneficiary of the contract between ASI and Whitman College. ECF No. 72 at 10 (citing Burg v. Shannon & Wilson, Inc., 110 Wash. App. 798, 807-08, 43 P.3d 526 (2002)). Specifically, the Court commented that, in order to avoid summary dismissal of this claim, Plaintiff would need to establish, [*10] as a threshold matter, that “ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit of the college itself.” ECF No. 72 at 10.
Having reviewed the record on summary judgment, the Court finds that Plaintiffs have established a triable question of fact on this issue. First, the Draft Risk Management Audit indicates that ASI’s audit program is designed to “give[] organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards.” ECF No. 153-5 at 5 (emphasis added). Second, the Director of the Outdoor Program, Brien Sheedy, testified during his deposition that the risk management audit was designed to minimize risks to “all users” of the Outdoor Program, including students and employees. ECF No. 153-10 at 34-35. Third, Whitman College’s chief financial officer, Peter Harvey, testified that the college typically takes an “across the board” approach to risk management by attempting to mitigate risks to students, employees and faculty. ECF No. 153-8 at 25. Finally, Whitman College’s president, George Bridges, testified that he would expect any risk management [*11] audit commissioned by the college “to protect the school and the employees and the students.” ECF No. 153-9 at 44. A rational jury could find from this evidence that Ms. Foster, as an employee and student of Whitman College, was an intended beneficiary of the contract for the risk management audit.
B. The Danger Posed by Misuse of the Super Shut Anchors Was Beyond the Scope of ASI’s Risk Management Audit
There are four elements to a common law negligence claim in Washington: duty, breach, causation and damages. Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 605, 257 P.3d 532 (2011). As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 449, 243 P.3d 521 (2010) (internal quotation and citation omitted). Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. Osborn v. Mason Cnty., 157 Wash.2d 18, 23, 134 P.3d 197 (2006). This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what [*12] risks is the obligation owed?” Affiliated FM Ins. Co., 170 Wash.2d at 449. In deciding whether the law imposes a duty of care, a court must balance “considerations of logic, common sense, justice, policy, and precedent.” Id. at 450 (internal quotations and citations omitted).
Here, Defendants contend that they did not owe Ms. Foster a duty of care to discover the danger posed by misuse of the Super Shut anchors. The Court agrees. In Washington, a private party who inspects another’s premises for safety hazards may be liable to third parties for injuries caused by the inspecting party’s negligence. See Sheridan v. Aetna Cas. & Surety Co., 3 Wash.2d 423, 439-40, 100 P.2d 1024 (1940); (liability insurer which inspected cargo elevator for safety hazards liable to third party who was injured as a result of insurer’s failure to discover dangerous condition); Nielson v. Wolfkill Corp., 47 Wash. App. 352, 359-60, 734 P.2d 961 (1987) (injured worker’s cause of action for negligent safety inspection performed by Department of Labor and Industries inspector barred by Washington Industrial Insurance Act); see also Restatement (Second) of Torts § 324A(b) (1965) (“One who undertakes, gratuitously or for consideration, to render [*13] services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if he has undertaken to perform a duty owed by the other to the third person.”).
Nevertheless, the act of inspecting another’s premises for safety hazards does not transform the inspecting party into a de facto insurer against any and all risks. Although the Court has not located any cases directly on-point in the State of Washington, courts in other jurisdictions have held that an inspecting party is only liable for undiscovered hazards which he or she undertook to discover in the first place. See, e.g., Procter & Gamble Co. v. Staples, 551 So.2d 949, 955-56 (Ala. 1989) (“In defining the nature of the duty undertaken by a voluntary [safety] inspection, two aspects must be considered–the physical scope of the undertaking and the degree of scrutiny and action mandated by conditions observed or reasonably observable.”) (quotation and citation omitted); Winslett v. Twin City Fire Ins. Co., 141 Ga. App. 143, 232 S.E.2d 638, 639 (Ga. App. 1977) (no liability [*14] to third party for failing to discover dangerous condition on construction crane where “evidence was uncontradicted that no detailed inspections of machinery or equipment were contemplated or made”); Lavazzi v. McDonald’s Corp., 239 Ill. App. 3d 403, 606 N.E.2d 845, 849-50, 179 Ill. Dec. 1013 (Ill. App. 1992) (inspectors hired by restaurant to perform food safety inspections at supplier’s plant not liable for negligent inspection where inspectors “did not specifically focus any attention . . . on the piece of equipment involved in the injury”). In other words, the weight of authority from other jurisdictions counsels that an inspecting party’s liability for negligent inspection must be circumscribed by the scope of the inspection actually performed.
The Court concludes that “considerations of logic, common sense, justice, policy, and precedent” support adoption of this rule. See Affiliated FM Ins. Co., 170 Wash.2d at 450. Contrary to Plaintiffs’ assertions, an inspecting party’s duty of care is not synonymous with the foreseeability of a particular injury occurring. As Defendants correctly note, this argument improperly collapses the duty of care and causation elements of a negligence claim. In Washington, a negligence plaintiff [*15] must make a “threshold showing” that the defendant owed her a duty of care before proceeding to the issues of whether the defendant breached its duty and whether the breach was a foreseeable cause of the plaintiff’s injury. See Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012). While foreseeability can sometimes inform the scope of a duty owed, it cannot create the duty of care in the first instance. Michaels, 171 Wn.2d at 608. Indeed, equating duty with foreseeability in the context of a safety inspection would lead to a perverse result: an inspector would be legally obligated to report each and every manner in which a person might conceivably be injured–regardless of how obvious, inherent or attenuated the danger might be. This result would effectively transform safety inspectors into de facto insurers against all risks. As a matter of logic and public policy, the better approach is to define an inspector’s duty of care according to the types of hazards that were actually targeted by his or her inspection.
Applying this rule to the instant case, the Court finds that the hazard which caused Ms. Foster’s fall–misuse of the Super Shut anchors–was simply beyond [*16] the scope of the risk management audit that ASI performed. As a threshold matter, Plaintiffs have failed to establish that ASI undertook to inspect any individual pieces of equipment maintained by the Outdoor Program. In his deposition, Kosseff testified unequivocally that the Outdoor Program’s equipment was beyond the scope of ASI’s audit:
There were hundreds and hundreds of pieces of equipment within this program. Each of those pieces of equipment, especially the climbing [equipment], have specific ways in which they’re used. There — I was not looking at how this equipment would be utilized in this situation. I was looking at how the college conducted their systems for managing risk.
ECF No. 84-1 at Tr. 94. Similarly, Brien Sheedy states in his declaration that he “understood and expected that the [audit] would not review specific equipment utilized in the Outdoor Program, for example the Fixe Super Shut anchors, as that type of inspection was not envisioned by the audit process based upon the information [he] learned from [Kosseff]” prior to hiring ASI. ECF No. 82 at ¶ 6. Although this testimony is somewhat self-serving, Plaintiffs have not rebutted it.
Moreover, even assuming for [*17] the sake of argument that ASI was charged with inspecting individual pieces of equipment, it could not reasonably have been expected to identify hazards stemming from potential misuse of the equipment. As Defendants correctly note, the Super Shut anchors which Ms. Foster was using at the time of the accident did not truly “fail.” Rather, the anchors did something that they were designed to do–i.e., release a climbing rope–when Ms. Foster used them for an unsupported application.
To whatever extent Kosseff understood the danger of the Super Shuts releasing a rope in this scenario, he was not obligated to address it with Whitman College. ASI did not contract with Whitman College to address dangers caused by misuse of the Outdoor Program’s equipment. While there is no written contract evidencing the scope of work that ASI agreed to perform, the audit report prepared by Kosseff is highly informative. Having reviewed the audit report in its entirety, the Court finds that the purpose of the risk management audit was to improve Whitman College’s safety practices rather than to identify and catalog specific safety hazards. Indeed, there is no evidence that ASI agreed to perform a detailed “safety [*18] inspection” of specific outdoor equipment, buildings, vehicles, etc. Nor is there any evidence that Kosseff actually undertook to perform an inspection at that minute level of detail.
In the final analysis, there is simply no evidence that ASI agreed or undertook to examine the virtually countless ways in which the Outdoor Program’s climbing equipment could have been dangerously misused. Accordingly, Plaintiffs have not met their burden of establishing that ASI owed Ms. Foster a duty of care to discover and report the danger posed by misuse of the Super Shut anchors. In the absence of a duty of care, Plaintiffs cannot prevail on their negligence claim. Defendants’ motion for summary judgment is granted.
ACCORDINGLY, IT IS HEREBY ORDERED:
1. The motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80) is GRANTED. Plaintiffs’ claims against these Defendants are DISMISSED with prejudice.
2. Plaintiffs’ claim against Defendant Fixe Industry, which has never been served in this action, is DISMISSED without prejudice.
3. All pending motions are DENIED as moot.
The District Court Executive is hereby directed to enter this Order and a judgment [*19] accordingly, provide copies to counsel, and CLOSE the file.
DATED March 22, 2013.
/s/ Thomas O. Rice
THOMAS O. RICE
United States District Judge
G-YQ06K3L262
http://www.recreation-law.com
The age that minors become adults.
Posted: May 29, 2013 Filed under: Minors, Youth, Children, State | Tags: Adult, Adulthood, Age of Majority, Age of Minority, Alabama, MISSISSIPPI, Nebraska, statute Leave a commentI am constantly writing about the different legal issues of minors, here you can check on what that means for your state.
The age when a minor becomes an adult is currently 18 in 47 states. Alabama and Nebraska state law says an adult is someone who is 19 or older and Mississippi an adult is 21 or older.
There are exceptions for all the laws on minority in each state. A minor can become an adult if they marry, if they are emancipated or by special statutory exceptions.
Age of Majority
|
State |
Statute |
Age of adulthood |
|
Alabama |
Ala. Code tit. § 26-1-1 (age 19) and § 26-10A-2 § 27-14-25, § 27-14-5 (contract for insurance at age 15), § 30-4-16 (18 to get married). |
19 |
|
Alaska |
Alaska Stat. § 25.20.010(1977). |
18 |
|
Ariz. Rev. Stat. § 1-215 (1973). |
18 |
|
|
Arkansas |
Ark. Stat. Ann. § 57-103 (Supp. 1977). |
18 |
|
California |
Cal. Civ. Code § 25 (West Supp. 1978). |
18 |
|
Colorado |
Colo. Rev. Stat. § 13-22-101 (1973) |
18 |
|
Connecticut |
Conn. Gen. Stat. Ann. § 1-1d (West Supp. 1978) |
18 |
|
Delaware |
Del. Code tit. 6 § 2705 (Revised 1974) |
18 |
|
Florida |
Fla. Stat. Ann. § 743.07 (West Supp. 1978) |
18 |
|
Georgia |
Ga. Code Ann. § 74-104 (Revision 1973) |
18 |
|
Hawaii |
Haw. Rev. Stat. § 577-1 (Supp. 1975) |
18 |
|
Idaho |
Idaho Code § 29-101 (1967), § 32-101 (Supp. 1978) |
18 |
|
Illinois |
Ill. Ann. Stat. ch. 3 § 131 (Smith- Hurd 1978) |
18 |
|
Indiana |
Ind. Code Ann. § 34-1-2-5.5 (Burns Supp. 1977) |
18 |
|
Iowa |
Iowa Code Ann. § 599.1 (West Supp. 1978) |
18 |
|
Kansas |
Kan. Stat. Ann. § 38-101 (1973). |
18 |
|
Kentucky |
Ky. Rev. Stat. Ann. § 2.015 (Baldwin 1975) |
18 |
|
Louisiana |
La. Civ. Code Ann. art. 1782 (West 1952), art. 37 (West Supp. 1978) |
18 |
|
Maine |
Me. Rev. Stat. tit. 1 § 73 (Supp. 1973) |
18 |
|
Maryland |
Md. Com. Law Code Ann. § 1-103(a) (1975) |
18 |
|
Massachusetts |
Mass. Ann. Laws. ch. 4, § 7(48) (Michie/Law Coop Supp. 1978) |
18 |
|
Michigan |
Mich. Comp. Laws Ann. § 722.52 (Supp. 1978) |
18 |
|
Minnesota |
Minn. Stat. Ann. § 645.45(14) (West Supp. 1978) |
18 |
|
Mississippi |
Miss. Code Ann. § 1-3-27 (1972) However in other statutes defines minors as over 18 § 81-5-61 (minors may rent safety deposit boxes), § 93-3-11 (homestead exemption), § 93-19-1 (real estate), § 97-37-13 (illegal to give a minor weapons, under age 18), |
21 |
|
Missouri |
Mo. Ann. Stat. § 431.055 (Vernon Supp. 1978) |
18 |
|
Montana |
Mont. Rev. Codes Ann. § 64-101 (Supp. 1977) |
18 |
|
Nebraska |
Neb. Rev. Stat. § 38-101 (Reissue 1974) |
19 |
|
Nevada |
Nev. Rev. Stat. § 129.010 (1977) |
18 |
|
New Hampshire |
N.H. Rev. Stat. Ann. § 21-B:1 (Supp. 1977) |
18 |
|
New Jersey |
N.J. Stat. Ann. § 9:17B-3 (West 1976) |
18 |
|
New Mexico |
N.M. Stat. Ann. § § 12-2-2 (K); 28-6-1 (1978 Replacement Vol.) |
18 |
|
New York |
N.Y. Gen. Oblig. Law § 3-101 (McKinney 1978) |
18 |
|
North Carolina |
N.C. Gen. Stat. § 48A-2 (1976 Replacement Vol.) |
18 |
|
North Dakota |
N.D. Cent. Code § 14-10-01 (1971 Replacement Vol. Supp. 1977) |
18 |
|
Ohio |
Ohio Rev. Code Ann. § 3109.01 (Page Supp. 1977) |
18 |
|
Oklahoma |
Okla. Stat. Ann. tit. 15 § § 11, 13 (West 1972) |
18 |
|
Oregon |
Or. Rev. Stat. § 109.510 (1977 Replacement Vol.) |
18 |
|
Pennsylvania |
73 Pa. Cons. Stat. § 2021 (Purdon Supp. 1978) |
18 |
|
Rhode Island |
R.I. Gen. Laws § 15-12-1 (Supp. 1977) |
18 |
|
South Carolina |
S.C. Const. art. 17 § 14 (1973, amended 1975) |
18 |
|
South Dakota |
S.D. Codified Laws Ann. 26-1-1 (Revision 1976) |
18 |
|
Tennessee |
Tenn. Code Ann. § 1-313 (Supp. 1977) |
18 |
|
Texas |
Tex. Rev. Civ. Stat. Ann. art. 5923b (Vernon Supp. 1978) |
18 |
|
Utah |
Utah Code Ann. § 15-2-1 (Supp. 1977) |
18 |
|
Vermont |
Vt. Stat. Ann. tit. 1 § 173 (Supp. 1978) |
18 |
|
Virginia |
Va. Code § 1-13-42 (1973 Replacement Vol.) |
18 |
|
Washington |
Wash. Rev. Code § 26.28.015 (1976) |
18 |
|
West Virginia |
W. Va. Code § 2-3-1 (Supp. 1978) |
18 |
|
Wisconsin |
Wis. Stat. Ann. § 990.01(20) (West Supp. 1978) |
18 |
|
Wyoming |
Wyo. Stat. § 8-3-103 (a) (i) & (a) (iv), § 16-3-101 (1977) |
18 |
Like everything, statutes change when legislators decide something needs corrected. Although this list is probably fairly stagnant, you should make sure you are aware of the age of adulthood in each of the states where you operate.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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Decisive Supreme Court Decision on the Validity of Releases in Oklahoma
Posted: May 27, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Oklahoma, Release (pre-injury contract not to sue) | Tags: Artillery Hunt Riding Stables, Elizabeth M. Schmidt, Equine, Fort Sill, Horse, OK, Oklahoma, Oklahoma Supreme Court, Release, stable, State supreme court, Supreme Court, Supreme Court of the United States, Texas, Trail Ride, United States, United States of America Leave a commentSchmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
Case arose as a certified question from the US District Court from Western Oklahoma.
This is a request by the Federal District Court in Western Oklahoma for clarification on a legal point. When a Federal court has to apply state law and there are no decisions for the Federal court to rely upon, it certifies the question to the state Supreme Court for clarification. That is how this case arose.
The plaintiff went for a trail ride at Artillery Hunt Riding Stables at Fort Sill, Oklahoma. Because the stable was owned by the Army that is the reason for the suit to be brought in Federal Court and why the defendant is the USA.
While on the ride, the “ride leader” allegedly rode up behind the plaintiff and frightened her horse causing the horse to throw her. The plaintiff sued saying that the US “(1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader.” Both claims are based in negligence.
The Federal Court could not find case law to rely upon to issue an opinion on the defendant’s defense of release so it sent the case the Oklahoma Supreme Court.
The Oklahoma Supreme Court did not decide the case. The court only used the facts as supplemental information in making its decision concerning releases in Oklahoma.
The Oklahoma looked at the question in two parts:
1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?
2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?
The court responded this way: “
We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy.
We note that exculpatory clauses cannot relieve one from liability for fraud, willful injury, gross negligence or violation of the law.
Summary of the case
This decision is a well-written look at how Oklahoma and many other states look at releases. Generally, releases are upheld in Oklahoma. However, although releases are “generally enforceable” releases are distasteful. The test in Oklahoma on whether a release is valid is:
(1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;
(2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and
(3) enforcement of these clauses must never
(a) be injurious to public health, public morals or confidence in administration of the law or
(b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.
The court then described what clear and unambiguous intent was:
A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall fairly within the contemplation of, the parties. The clause must also identify the type and extent of damages covered — including those to occur in futuro.
The court did differentiate between an exculpatory clause (release) which limits suits and clauses, which limit damages under Oklahoma law.
Bargaining power was described by the court in looking at releases as:
Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services.
The final issue, a release that violates public policy was described as:
While courts may declare void those portions of private contracts which contradict public policy, they must do so only with great caution. Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property.
The court summed up its opinion on what a release must have under Oklahoma law as:
“any agreement having as its purpose the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved.
However, if any single requirement of the three requirements is not met by a release, then the release must fail.
So Now What?
You never find a decision that says this is what you must do to be legal. This decision from the Oklahoma Supreme Court explains step by step what an attorney must do to write a release.
Plaintiff: Elizabeth M. Schmidt
Defendant: United States of America (Artillery Hunt Riding Stables at Fort Sill, Oklahoma)
Plaintiff Claims: Negligence in the original Federal Action
Defendant Defenses: Release
Holding: Sent to the Federal Court for determination based on the decision here.
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Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
Posted: May 27, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Oklahoma, Release (pre-injury contract not to sue) | Tags: Artillery Hunt Riding Stables, Assumption of risk, Elizabeth M. Schmidt, Equine, Federal Tort Claims Act, Fort Sill, Horse, Negligence, OK, Oklahoma, Oklahoma City, Release, stable, Trail Ride, United States, United States district court, United States of America Leave a commentSchmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
ELIZABETH M. SCHMIDT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
No. 85,545
SUPREME COURT OF OKLAHOMA
1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38
February 27, 1996, FILED
COUNSEL: Alan D. Rosenbaum, Lawton, OK, Reggie N. Whitten, Douglas A. Terry, MILLS & WHITTEN, Oklahoma City, OK, For Plaintiff.
Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, For Defendant.
JUDGES: KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur; WILSON, C.J., concurs in part and dissents in part.
OPINION BY: OPALA
OPINION
[*872] CERTIFIED QUESTIONS FROM A UNITED STATES COURT
Opala, J.
The United States District Court for the Western [**2] District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:
“1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?
2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?”
We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. We note that exculpatory clauses cannot relieve one from liability for fraud, [**3] willful injury, gross negligence or violation of the law. 1
1 See infra notes 8 and 15.
I
ANATOMY OF THE FEDERAL LITIGATION 2
2 The material accompanying the certified questions consists of the parties’ pleadings and motions filed in the certifying court. The factual recitals in the anatomy of the federal litigation were gleaned from this material and from the briefs submitted to this court.
Elizabeth M. Schmidt [plaintiff or Schmidt] went to the Artillery Hunt Riding Stables [Stables] at Fort Sill, Oklahoma 3 to engage in recreational horseback riding. Before participating in this activity she executed a Rental Riding Agreement [contract]. The contract contained the following clause [exculpatory clause or clause]:
“In consideration for being allowed to participate in Horse Rental, I hereby release [**4] the Artillery Hunt Center and its employees and/or ride leaders . . . and the United States Government from any liabilities or claims arising from my participation. I agree that I will never prosecute or in any way aid in prosecuting any demand, claim or suit against the United States Government for any loss, damage or injury to my person or property that may occur from any cause whatsoever as a result of taking part in this activity.” [Emphasis supplied.]
3 The Stables are admittedly an instrumentality of the U.S. Army.
Schmidt claims that, during the ride, a “ride leader” employed by the Stables negligently rode up behind her, frightened her horse and caused it to throw her to the ground, then fall on and injure her.
[*873] Schmidt brought a negligent tort complaint against the United States 4 alleging that the latter (1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader. 5 By its summary [**5] judgment motion the United States interposed the exculpatory clause, by which it sought to defeat Schmidt’s claim.
4 Schmidt’s action invokes the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671 et seq. [HN1] By the FTCA’s terms the United States’ liability is measured according to the law of the state in which the wrongful act occurred. 28 U.S.C. § 2674.
5 Schmidt charges the United States with actual notice of the employee’s unfitness to lead the ride.
II
THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT
[HN2] While the actionability of state-law claims identified in the submitted questions may be tested when answering the queries posed, it is not this court’s province to intrude (by the responses to be given) upon the federal court’s decision-making process. Because this case is not before us for decision,we refrain, as we must, from applying the declared state-law responses to the facts elicited or to be determined in the federal-court litigation (whether [**6] made by evidence adduced at trial or by acceptable probative substitutes, called “evidentiary materials”, for use in the summary adjudication process). 6 The task of analyzing the impact of today’s answers must be and hence is deferred to the certifying court.
6 Brown v. Ford, Okl., 905 P.2d 223, 226 n. 3 (1995); Bonner v. Oklahoma Rock Corp., Okl., 863 P.2d 1176, 1178 n. 3 (1993); Shebester v. Triple Crown Insurers, Okl., 826 P.2d 603, 606 n. 4 (1992).
III
THE PARAMETERS OF THE CLAUSE’S ENFORCEABILITY
[HN3] By entering into an exculpatory agreement of the type dealt with here 7 the promisor assumes the risks that are waived. 8 [*874] While these exculpatory promise based obligations are generally enforceable, 9 they are distasteful to the law. 10 For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant 11 from liability for the sought-to-be-recovered [**7] damages; 12 (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; 13 and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. 14
7 For a discussion of the difference between a contract clause totally exempting one from culpability and one which merely limits the financial extent of that liability, see Elsken v. Network Multi-Family Sec. Corp., Okl., 838 P.2d 1007, 1008 (1992); Fretwell v. Protection Alarm Co., Okl., 764 P.2d 149, 151 (1988). In both of those cases a burglar alarm company sought to limit its liability for loss due to theft of customers’ property via a liquidated damages provision. The propriety of similar liability-limiting contract clauses is subject to an analysis grounded in contract law that lies outside the realm of tort jurisprudence. See MacNeil, Power of Contract and Agreed Remedies, 47 CORNELL L. Q. 495 (1962).
[**8]
8 [HN4] Express assumption of risk occurs in those cases where the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence. Thomas v. Holliday by and through Holliday, Okl., 764 P.2d 165, 168 n. 8 (1988); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1129 (La. 1988); Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780, 783 (1983). The terms of RESTATEMENT (SECOND) OF TORTS § 496B (1965) provide:
[HN5] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” [Emphasis added.]
For a discussion of the jurisprudential requisites for determining whether an exculpatory contract violates public policy, see infra Part IIIC. See also in this connection V. SCHWARTZ, COMPARATIVE NEGLIGENCE § 9.1 at 154 (1974). [HN6] Express consent, which might also be called “waiver” or “release”, will usually bar recovery by the plaintiff unless there is a statute or established public policy against it. Murray, supra at 1129. The two statutory provisions cited by Schmidt are inapposite here. The terms of the first, [HN7] 15 O.S.1991 § 212, provide:
“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another or violation of the law, whether willful or negligent, are against the public policy of the law.” [Emphasis added.]
This section forbids agreements relieving one from liability for fraud, willful injury or violation of the law. Its terms cannot be read to embrace contracts affecting liability for simple negligence. We assume — for want of contrary notice from the federal-court record — that in this case there is no fraudulent or willful conduct.
The terms of the second section, [HN8] 15 O.S.1991 § 212.1, provide:
“Any notice given by a business entity which provides services or facilities for profit to the general public and which seeks to exempt the business entity from liability for personal injury caused by or resulting from any acts of negligence on its part or on the part of its servants or employees, shall be deemed void as against public policy and wholly unenforceable.” [Emphasis added.]
[HN9] This section’s terms apply to promises imposed without the promisor’s adequate knowledge through explanation or sans consideration. That is not the case here because the exculpatory contract in suit clearly amounts to more than a posted notice.
[**9]
9 Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (1994); Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 145 (Vt. 1988); Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, 919 (1988); Rawlings v. Layne & Bowler Pump Company, 93 Idaho 496, 465 P.2d 107, 110 (1970); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 233 N.E.2d 22, 24 (Mass. 1968); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 926, 220 N.Y.S.2d 962 (1961).
10 Gulf C&S Ry. Co. v. Anderson, 120 Okla. 60, 250 P. 500, 502 (1926).
11 Colgan, supra note 9 at 145; Jones v. Dressel, 623 P.2d 370, 378 (Colo. 1981); Anderson, supra note 10 at 502.
12 Anderson, supra note 10 at 502.
13 Salt River Project Agr. v. Westinghouse Elec., 143 Ariz. 368, 694 P.2d 198, 213 (1985); Elsken, supra note 7 at 1010-1111.
14 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984). See also Thomas, supra note 8 at 168 n. 7; Fisk v. Bullard, 205 Okla. 502, 239 P.2d 424, 427 (1951); Anderson, supra note 10 at 502. See also in this connection Harris, supra note 9 at 909; Salt River, supra note 13 at 213; Belger Cartage Serv., Inc., v. Holland Const. Co., 224 Kan. 320, 582 P.2d 1111, 1119 (1978); Ciofalo, supra note 9 at 926. 15
[**10] [HN10]
The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. 15
15 Wolf supra note 9 at 528; Jones, supra note 11 at 376; Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944).
A. Clear and Unambiguous Description of Parties and Damages
[HN11] A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall [**11] fairly within the contemplation of, the parties. 16 The clause must also identify the type and extent of damages covered — including those to occur in futuro. 17
16 Anderson, supra note 10 at 502.
17 Anderson, supra note 10 at 502.
B. Bargaining Power’s Parity Level
[HN12] Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services. 18
18 Goldberg, supra note 15 at 174-175. See Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113, 1117 (W.D. Okla. 1976).
[**12] [*875] C. The Element Whose Presence Makes the Exculpation Not Violative of Public Policy 19
19 [HN13] In the context of an exculpatory clause’s validity, “public policy” means that which inhibits anything injurious to the good of all. The term is applied here in a sense broader than that used when scrutinizing for conformity to “public policy” wrongful-termination claims pressed by discharged at-will employees. Cameron & Henderson v. Franks, 199 Okla. 143, 184 P.2d 965, 972 (1947). For cases that deal with claims by discharged at-will employees see Groce v. Foster, Okl., 880 P.2d 902, 904 (1994); Gilmore v. Enogex, Inc., Okl., 878 P.2d 360, 364 (1994); Burk v. K-Mart Corp., Okl., 770 P.2d 24, 28-29 (1989).
[HN14]
While courts may declare void those portions of private contracts which contradict public policy, 20 they must do so only with great caution. 21 Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public [**13] morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property. 22
20 Hargrave v. Canadian Valley Elec. Co-op., Okl., 792 P.2d 50, 59 (1990).
21 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-818 (1941).
22 Shepard, supra note 21 at 251; Anderson v. Reed, 133 Okla. 23, 270 P. 854, 856 (1928). An example of an exculpatory clause injurious to public health is afforded by an agreement exonerating a common carrier from liability for negligence. See Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990, 996-997 (1920).
IV
SUMMARY
[HN15] National jurisprudence teaches that parties may contractually allocate the risk of future harm. The exercise of this power is conditional; any agreement having as its purpose [**14] the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved. The parties must have bargained for their exchange on a level playing field — the level to be measured by the seriousness of the contract’s subject matter and the options available to the person giving up the right to sue. If the clause is to pass the test’s muster, the assumed obligation cannot be deemed to have brought about a result perceived as harmful to the principles of “public policy”. 23
23 See supra note 19.
The validity of the Schmidt/Stables exculpatory clause in suit depends on the outcome of the fact-finding investigation to be conducted in the certifying court. 24 If — under the test we announce today — that court should determine that any single requirement for the clause’s enforceability has not been met, its decision could not uphold the contract and exonerate the United [**15] States.
24 Promise-based obligations of the type dealt with here are treated as the promisor’s risk assumption. See supra Part III. [HN16] The terms of ART. 23, § 6, OKL.CONST., provide in pertinent part:
“The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” [Emphasis added.]
[HN17] The terms of ART. 23, § 8, OKL.CONST., provide:
Any provision of a contract, express or implied, made by any person, by which any of the benefits of this constitution is sought to be waived, shall be null and void.” [Emphasis added.]
Today we merely define the parameters of an exculpating clause’s enforceability. Whether, as applied to this case, the provision presents a disputed law question or also a disputed fact question is to be decided by the certifying court.
CERTIFIED QUESTIONS ANSWERED.
KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur;
WILSON, [**16] C.J., concurs in part and dissents in part.
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Release for bicycle tour wins on appeal but barely
Posted: May 20, 2013 Filed under: Cycling, Florida, Release (pre-injury contract not to sue) | Tags: Defendant, Florida, Law, Lawsuit, Negligence, Plaintiff, Trial court, United States Leave a commentIf the release were written properly, the appeal would not have occurred; maybe the lawsuit would not have occurred.
The decision from the Florida Court of Appeals looks at a release sued by the defendant bicycle tour company. An accident occurred when the front wheel fell off the bike injuring the plaintiff.
There are few facts in the decision. It is not clear if it was purely a bike rental or was a bike tour that included bikes. It appears it was a tour. Nor does the case describe how the wheel fell off or the injuries of the plaintiff.
At the trial court, the case went to trial with a jury decision for the defendant.
The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters.
Post-trial the plaintiff filed several motions to have the jury verdict reversed for a new trial. A new judge granted the motion for a new trial finding the release at issue failed to contain specific unambiguous language needed under Florida’s law for a release to be valid.
The defendant appealed.
Summary of the case
The plaintiff’s argument on appeal was the language of the release at issue did not have the necessary language. However, the court found the argument and the cases cited by the plaintiff to not be similar to the release at question.
Releases are valid under Florida’s law: “… waivers or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal.”
The release in question used the word negligence and relieved the defendant of all liability.
So Now What?
The entire release quoted by the court consisted of one paragraph. It is not clear if the release was longer or contained any other language; however, based on how the court quoted the release it does not appear to be.
The release squeaked through after spending thousands of dollars to defend and probably three or more years of time.
If you have your release properly written it is going to be much longer than one paragraph. That length may add three or more years to your life that do not contain litigation.
Plaintiff: Mark Schecter and Karen Schecter
Defendant: Travent, Ltd.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: For the defendant. The release was sufficient to stop the claims.
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Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)
Posted: May 20, 2013 Filed under: Cycling, Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: Bicycle Tour, Circuit Court, Florida, Ltd., Schecter, Travent Leave a commentTravent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)
Travent, Ltd., Appellant, v. Mark Schecter and Karen Schecter, his wife, Appellees.
CASE NO. 97-2491
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384
October 14, 1998, Opinion Filed
SUBSEQUENT HISTORY: [**1] Released for Publication October 30, 1998.
PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 93-17334 09.
DISPOSITION: REVERSED AND REMANDED.
COUNSEL: Kenneth W. Moffet of Moffet & Alexander, P.A., West Palm Beach, for appellant.
Walter G. Campbell, Jr. of Krupnick, Campbell, Malone, Roselli, Buser, Slama, and Hancock, P.A., Fort Lauderdale, for appellees.
JUDGES: DELL, J., GUNTHER and WARNER, JJ. concur.
OPINION BY: DELL
OPINION
[*939] DELL, J.
Travent, Ltd. appeals the order granting Mark and Karen Schecters’ Motion for Judgment in Accordance with Motion for Directed Verdict and Motion for New Trial. Travent contends that the trial court erred when it granted the Schecters’ motion for directed verdict because they signed an agreement that released their claims. Travent also contends that the trial court erred when it granted the new trial because the Schecters waived any error concerning the admission of the release and invited any error in the jury instructions. We reverse.
The Schecters filed suit alleging that Travent’s negligence in the operation of bicycle tours caused serious injuries [**2] to Mark Schecter when the front wheel of the bicycle he rode fell off. 1 In its amended answer, Travent submitted the document signed by the Schecters, providing in pertinent part,
1 The Schecters also filed suit against Travel Center of Broward, Inc. d/b/a Compass-McQuade Travel. Travel Center is not a party to this appeal.
AGREEMENT: I have read and do understand Cycling Safely stated on the other [*940] side, and agree to follow [the safety precautions stated therein]. In consideration of being permitted to participate in a tour operated by TRAVENT International and TRAVENT Ltd., I do for myself, my heirs, legal representatives and assigns hereby release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour. Furthermore, I assume full responsibility for [**3] the risk of bodily injury, death or property damages while participating in said tour.
Both parties moved for directed verdicts based on the release. The court denied the motions.
The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters. Thereafter, the Schecters filed a Motion for Judgment in Accordance with the Motion for Directed Verdict and a Motion for Mistrial, or in the alternative, a Motion for a New Trial. After a hearing, Judge Robert L. Andrews, successor to Judge Levon Ward, concluded,
The Release was insufficient to preclude liability on the part of the Defendant [Travent] . . . . [and that] because the Release contains no specific and unambiguous language asserting that the Defendant cannot be sued for its own negligence, the Plaintiffs were entitled to a Motion for Directed Verdict on the Release as a matter of law.
(emphasis in original). The trial court granted the Schecters’ motion for directed verdict, denied the motion for mistrial, and granted their motion for a new trial.
Travent argues that the trial [**4] court erred when it granted the Schecters’ motion for a directed verdict because their claims were barred by the release. We agree and reverse. In granting the directed verdict, the trial court relied on Zinz v. Concordia Properties, Inc., 694 So. 2d 120 (Fla. 4th DCA 1997). In Zinz, a premises liability case, the document signed by appellants provided that
“the undersigned agree to indemnify and hold Concordia … harmless” and that: the undersigned agree that Concordia … shall in no way be responsible for the action of the undersigned in the access to Villa Mare and/or Villa Costa, nor shall Concordia and the Town of Highland Beach be liable for damages arising out of any activities in which the undersigned are so involved.
Id. at 121. This court concluded that “the general terms ‘indemnify … against any and all claims’ did not sufficiently disclose the intention to indemnify against the negligence of the indemnitee.” Id. Here, the agreement specifically refers to Travent and states that the signator does release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives [**5] and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.
(emphasis added).
The Schecters cite Witt v. Dolphin Research Center, Inc., 582 So. 2d 27 (Fla. 3d DCA 1991), where the trial court found that an action was barred by the terms of a release and awarded summary judgment in favor of the appellee. Id. The Third District Court of Appeal held, “Since there is no specific reference in the release to the appellee’s ‘negligence’ at all, it is clear that, as a matter of law, they provide no defense to the negligence claim in this case, and that the judgment must therefore be reversed for trial on that ground.” Id.
The Schecters also argue that the trial court’s directed verdict should be affirmed based on Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318 (Fla. 4th DCA 1984). In Van Tuyn, the appellant sued appellee for injuries she sustained after falling from a mechanical bull. Prior to riding the mechanical device, she signed a written waiver providing in pertinent part,
I hereby voluntarily release, waive, and discharge CLUB DALLAS, [**6] Marr Investments, [*941] Inc., their lessors, heirs successors and/or assigns from any and all claims, demands, damages and causes of action of any nature whatsoever which I, my heirs, my assigns, or my successors may have against any of them for, on account of, or by reason of my riding or attempting to ride this Bucking Brama Bull.
Id. at 320. This court concluded that the agreement in Van Tuyn “is devoid of any language manifesting the intent to either release or indemnify Club Dallas, Marr Investments, Inc., for its own negligence. Therefore, the agreement does not, as a matter of law, bar the Appellant’s recovery.” Id.
In Van Tuyn, the written waiver did not state that it released the subject parties from negligent acts. The release signed by the Schecters differs from that in Witt and Van Tuyn because it releases Travent “for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.”
We find merit in Travent’s argument that the release signed by the Schecters should be considered in light of this court’s decision in Banfield v. Louis, 589 So. 2d 441 (Fla. 4th [**7] DCA 1991). In Banfield, before competing in a triathlon, the appellant completed and signed the official entry form:
In consideration for the acceptance of my entry, I, for my heirs, executors and administrators, release and forever discharge the United States Triathlon Series (U.S.T.S.), CAT Sports, Inc., Anheuser-Busch, the Quaker Oats Company, the city, county, state or district where the event is held and all sponsors, producers, their agents, representatives, successors and assigns of all liabilities, claims, actions, damages, costs or expenses which I may have against them arising out of or in any way connected with my participation in this event, including travel to or from this event, and including injuries which may be suffered by me before, during or after the event. I understand that this waiver includes any claims based on negligence, action or inaction or any of the above parties.
Id. at 443. The trial court concluded that the waiver provision in Banfield barred appellant’s negligence claims against the sponsors, organizers, and promoters, and therefore granted summary final judgment in favor of appellees. Id. at 443-44. This court stated that [HN1] waivers [**8] or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal,” id. at 444, and affirmed the summary judgment because “when Banfield signed the waiver, she knew that she was releasing all of the sponsors and promoters, as well as their agents, from liability.” Id. at 445.
As in Banfield, the subject agreement provided that the Schecters were releasing Travent, its agents, and its employees from liability, “whether caused by negligence or otherwise.” There is no meaningful difference between the language used in the subject release from that considered by this court in Banfield. Therefore, the language in the subject release must be interpreted to mean that the Schecters released, waived, and discharged Travent International, Travent, Ltd. and its agents and employees from all liability, caused by their own negligence or otherwise.
We hold that the trial court erred when it granted the Schecters’ motion for directed verdict and ordered a new trial. We further hold that the trial court should have granted Travent’s motion for directed verdict. Accordingly, we reverse the order granting [**9] the directed verdict in favor of the Schecters and ordering the new trial. We remand this cause to the trial court to enter judgment in favor of Travent. Our holding makes it unnecessary to discuss Travent’s remaining point on appeal.
REVERSED AND REMANDED.
GUNTHER and WARNER, JJ. concur.
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Fred Phillips Consulting, LLC has a job on the Lower Colorado
Posted: May 17, 2013 Filed under: Arizona | Tags: Arizona, Blythe California, California, Colorado, Colorado River, Lake Mead, Nevada, PRBO Conservation Science Leave a commentSeasonal Job Announcement Lower Colorado River and tributaries in Arizona, California and Nevada
The Yellow-billed Cuckoo was named Cuculus americanus in 1758. (Photo credit: Wikipedia)
Position: Yellow-Billed Cuckoo Field Crew Leaders and Surveyors, Lower Colorado River, Arizona, California, and Nevada
Start Date: May30- August 25
Status: Seasonal
Number of Openings: 2 Crew Leaders and 9 Surveyor Crew
Fred Phillips Consulting (FPC) is potentially looking for 2 field crew leaders and 9 surveyor crew members to conduct Yellow-Billed Cuckoo surveys on the Lower Colorado River from Lake Mead area south to the U.S. Mexican Border pending funding. The teams will be based out of Yuma, AZ, Parker, AZ, and Blythe, CA and work will be conducted at Havasu National Wildlife Reserve, Bill Williams River NWR, Cibola NWR, and Yuma East Wetlands. FPC is teaming with PRBO Conservation Science to conduct 5 years of yellow-billed cuckoo monitoring on the Lower Colorado River. FPC is a small business environmental consulting company based out of Flagstaff, AZ. We have been designing, implementing, managing and monitoring large-scale habitat restoration projects on the Lower Colorado River for over 12 years, including wildlife and bird surveys.
Two crew leaders are needed to conduct surveys from May 30- August 30. Crew leaders will assist with Yellow-billed cuckoo surveys along the lower Colorado River. Duties will include: supervising 1-5 biological technicians, project logistics, data collection and management, and conducting presence/absence surveys.
Nine field surveyors are needed from May 30- August 30. Field surveyor crew duties include conducting presence/absence yellow-billed cuckoo surveys using a playback tape method and data entry.
Qualifications Required:
Crew leaders must have 1) at least one year of field crew leader experience and an additional 2-3 years of avian survey
Colorado River @ Lake Mead National Recreation, Nevada / Arizona (Photo credit: Wikipedia)
experience, 2) know how to navigate using a map and GPS unit, 3) have computer and data management skills, 4) experience with call-back bird survey methods, 5) the ability to carry a heavy backpack in hot and humid conditions, off-trail in remote areas. Crew leaders need to have a valid driver’s license and be certified in First Aid and CPR.
Field surveyors must: 1) have previous avian field work experience, 2) skills using a map and GPS unit in the field, 3) be able to carry a heavy backpack in hot and humid conditions, off-trail in remote areas, 4) have computer skills, and 5) work in pairs or individually in the field.
Housing and work vehicles will be provided. Individuals will be responsible for getting themselves to and from field housing during non-working hours.
Field and Survey Conditions:
The Lower Colorado River is hot and humid during the summer with temperatures ranging from 80-115 F. Field work is initiated in the early morning prior to sunrise, and often times accessing field sites will be conducted in the dark. Work will include conducting surveys in the morning and entering data on the computer the same day. Field staff will work a 5 day on and 2 day off schedule, but must be able to work any days of the week. The schedule may change and field staff must be adaptable to those changes. Some crew, particularly crew leaders, may have to work over 40 hour weeks.
Check out more of the exciting work we are doing at http://www.fredphillipsconsulting.com
Email/Mail Resume and references to:
Yellow billed cuckoo fws (Photo credit: Wikipedia)
Heidi Trathnigg
htrathnigg@fredphillipsconsulting.com
401 South Leroux Street
Flagstaff, AZ 86001
928-773-1530 Phone
928-774-4166 Fax
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer,
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Be Part of a World Record of People Wearing PFD’s (life jackets)
Posted: May 16, 2013 Filed under: Colorado | Tags: Boat, BSA, Life Jacket, Lifejacket, National Safe Boating Council, National Safe Boating Week, Paddlesports, PFD, Scouting, Sea Scout, United States Coast Guard Auxiliary Leave a commentCALLING ALL DENVER AREA COUNCIL CUB SCOUTS, BOY SCOUTS, VARSITY TEAMS, VENTURING CREWS AND SEA SCOUTS SHIPS —
National Safe Boating Council (Photo credit: Wikipedia)
YOU ARE INVITED TO COME JOIN THE COAST GUARD AUXILIARY AT CHATFIELD STATE PARK, SATURDAY, MAY 18, @ THE SOUTH MARINA RAMP AREA
TO HELP SET A NEW WORLD RECORD OF PEOPLE WEARING LIFE JACKETS.
This event is the kickoff to National Safe Boating Week, May 18-24, 2013, by the National Safe Boating Council. All Scouts in full uniform (bring your life jacket with you though) will be admitted at the Park’s entrance on Saturday morning for this photo opportunity. Arrive prior to 11:45 a.m. to allow time for parking. Gather by 11:45 a.m. at the grassy area adjacent to the South Marina ramp area. There will be Auxiliary signs posted for your convenience. A group photo, like the one above, will be taken at Noon and submitted later to the National Safe Boating Council so they can add up the numbers. LET’S BREAK 4,000 THIS YEAR!
Auxiliarists will be on hand to answer questions from scouts and parents about Recreational Boating Safety as well as be available for vessel safety checks on any and all boats you or your unit might be using this boating season. The Auxiliary hopes to have their Patrol Boats in the water on Saturday as well. Scouts would be allowed to view these facilities and ask questions about what the Auxiliary members do while on patrol on our reservoirs. (However, U.S.C.G. regulations prohibit anyone other than Auxiliarists be on board these facilities. Sorry Scouts.)
Any questions or concerns please call Amy McNeil at (303) 973-6207. Hope to see you all there.
English: United States Coast Guard Chief Director Auxiliary (“The Director of the Auxiliary is the direct representative of the Commandant of the United States Coast Guard to the United States Coast Guard Auxiliary” (Title 14 United States Code Chapter 23) (Photo credit: Wikipedia)
2012-2013 In bound ski/board fatalities
Posted: May 15, 2013 Filed under: Avalanche, California, Colorado, Michigan, Ski Area, Skiing / Snow Boarding | Tags: Alanson Michigan, alpine Meadwos, Aspen Mountain, Auburn California, Boyne Highlands Resort, Breckenridge, Copper Mountain, Donner Ski Ranch, helmet, Houston, Keystone Ski Resort, Mammoth Lakes, Pagosa Springs Colorado, Rockville, Rockville Maryland, Ski, Ski Patrol, ski season, Snowboard, Snowmass, Sports, Squaw Valley, Squaw Valley Ski Resort, Sun Valley ski resort, Vail, Winter sport, winter sports Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
Several Corrections have been made to items reported earlier.
If this information is incorrect or incomplete please let me know. This is up to date as of March 28, 2013. Thanks.
Skiing and Snowboarding are still safer than your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks and to study.
2012 – 2013 Ski Season Deaths
Blue is a death of an employee while working
| # | Date | State | Resort | Where | How | Ski / Board | Age | Sex | Hometown | Helmet | Ref | Ref |
| 1 | 12/2 | MI | Boyne Highlands Resort | Camelot | fell within the slope boundaries and did not collide with any type of obstacle | Boarder | 17 | F | Alanson, MI | http://rec-law.us/11JFVOo | ||
| 2 | 12/21 | CA | Squaw Valley | KT-22 | strike the tree | Skier | 71 | M | Auburn, CA | Yes | http://rec-law.us/10ctrSt | |
| 3 | 12/24 | CA | Donner Ski Ranch | Avalanche | Boarder | 49 | M | Hirschdale, CA | http://rec-law.us/UCaHJz | http://rec-law.us/Sgjsbi | ||
| 4 | 12/24 | CA | Alpine Meadows | Sherwood Bowl | Avalanche | Skier | 53 | M | http://rec-law.us/13eiU72 | http://rec-law.us/VGsqh5 | ||
| 5 | 12/30 | CO | Snowmass | Hanging Valley Headwall | Avalanche, swept over cliff | Skier | 49 | F | Patricia Hileman | http://rec-law.us/RCv6fd | http://rec-law.us/VOCr8H | |
| 6 | 1/4 | CO | Copper Mountain | Vein Glory | Hit Tree | M | Houston, TX | No | http://rec-law.us/RCy03u | http://rec-law.us/VyzVnU | ||
| 7 | 1/9 | CO | Keystone | Frenchman | Hit Tree | Skier | 20 | F | Austin, TX | No | http://rec-law.us/VSGVvz | http://rec-law.us/WGPsjQ |
| 8 | 1/9 | CO | Wolf Creek | Hit Tree | Skier | 70 | M | Pagosa Springs, CO | http://rec-law.us/XVWEj2 | |||
| 9 | 1/19 | MD | Wisp | Squirrel Cage | Hit tree | Skier | 40 | M | Rockville, MD | http://rec-law.us/XPB9wz | http://rec-law.us/UJnfeK | |
| 10 | 1/21 | UT | Park City | Silver King | Hit tree | Skier | 67 | M | NJ | No | http://rec-law.us/YchKpN | http://rec-law.us/Wm6mrQ |
| 11 | 2/3 | CA | Mammoth Lakes | Wipe Out 2 | Fell | Skier | M | http://rec-law.us/14BKzzk | ||||
| 12 | 2/4 | CO | Aspen Mountain | Jackpot run | Collision | Skier | 48 | F | Philadelphia, PA | Yes | http://rec-law.us/YCh1hM | http://rec-law.us/YChb8O |
| 13 | 2/8 | CO | Keystone | Porcupine | Hit Tree | Skier | 27 | M | Palos Hills, IL (Hillman AFB NM) | Yes | http://rec-law.us/XbsYsL | http://rec-law.us/XPtHkJ |
| 14 | 2/10 | CO | Breckenridge | Columbia | Hit Tree | Skier | 45 | M | Reston, VA | Yes | http://rec-law.us/YtRJ3y | http://rec-law.us/Ujx85e |
| 15 | 2/22 | MD | Wisp | Squirrel Cage | Hit Tree | Skier | 38 | M | Upper Arlington, OH | http://rec-law.us/133BO30 | http://rec-law.us/UZfW57 | |
| 16 | 3/2 | WI | Devils Head Ski Resort | Hit Tree | Skier | 30 | M | Madison, WI | http://rec-law.us/13Grw9f | http://rec-law.us/WUwUUw | ||
| 17 | NJ | Mountain Creek | Hit surface | Skier | M | No | ||||||
| 18 | 3/13 | ID | Sun Valley Resort | Roundhouse Lane | Hit Tree | Skier | 38 | F | Hailey, ID | Yes | http://rec-law.us/140BJ0o | |
| 19 | 3/16 | CA | China Peak Mountain Resort | Fell and/or hit stump | Skier | 49 | M | Fresno, CA | Yes | http://rec-law.us/YOYIHa | ||
| 20 | 3/21 | CO | Steamboat Springs Ski Resort | Hit Tree | Skier | 35 | M | http://rec-law.us/105wEOX | ||||
| 21 | 3/22 | CO | Snowmass Ski Area | Coney Glade run & Lunchline trails | Hit Tree | Skier | 42 | M | Kensington, Md | Yes | http://rec-law.us/ZkmHej | http://rec-law.us/13pmmPR |
| 22 | 3/27 | UT | Brighton Ski Area | Found wrapped around tree | Boarder | 26 | M | Sandy, UT | Yes | http://rec-law.us/10m67gi | http://rec-law.us/X0cqY7 | |
| 23 | 3/3 | UT | Deer Valley | Little Bell | Hit Tree | Skier | 33 | M | No | http://rec-law.us/13W2zI7 | http://rec-law.us/16ztlSh | |
| 24 | 4/12 | OR | Mt Hood Meadows | Hit Tree | Skier | 51 | M | Yes | http://rec-law.us/15aIFse |
There is a rumor, unsubstantiated of a fatality at a Colorado Ski Area. Supposedly a skier hit a tree.
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
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Fort Collins named Platinum-level Bicycle Friendly Community
Posted: May 15, 2013 Filed under: Colorado, Cycling | Tags: Boulder, Colorado, Fat Tire, Fort Collins, Fort Collins Colorado, League of American Bicyclists, New Belgium Brewing Leave a commentCongratulations to Fort Collins and all Colorado communities that received awards from the League of American Bicyclists
Fort Collins Mayor Karen Weitkunat and New Belgium Brewing‘s Mike Craft toast news of the city’s Platinum award
We’re thrilled by the news that Fort Collins has been named a Platinum-level Bicycle Friendly Community by the League of American Bicyclists. The city moved up from Gold level.
Colorado is now the only state boasting two Platinum-level communities–Boulder is the other. Davis, Calif., and Portland, Ore., round out the list of four communities at the top.
The award process is rigorous. You can watch a video the City of Fort Collins produced and read its application, which details the work done to improve their community through better bicycling.
Two other Colorado communities joined the ranks of Bicycle Friendly Communities.
• Crested Butte debuted at the Gold level (Colorado has the most Gold-level communities)
• Greeley debuted at the Bronze level
Our state now has 19 Bicycle Friendly Communities, which we think says amazing things about riding bicycles for fun, transportation, health and competition.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Camp held liable when a camper misunderstands instructions, and plaintiff was not paying attention.
Posted: May 13, 2013 Filed under: Michigan, Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Camp Sea-Gull, Capture the Flag, duty, Emily Lisner, Inc., Jonathan C. Gamze, Julie Gamze, Proximate Cause, Summer Camp, William P. Schulman, Youth Camp Leave a commentGamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)
Would you have ever guessed that capture the flag would lead to a lawsuit?
This case was dismissed by the trial court on a summary disposition which is called a motion for summary judgment in most jurisdictions. The case had been dismissed before trial because the trial court found that:
I can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.
The case arose at a summer camp when the campers were play capture the flag. At either end of the field, there was a circle with a pole and a flag on top of the pole. The pole was to locate the flag. The flag was a piece of cloth lying at the base on the ground within the circle.
One of the girls either was not told what the flag was or misunderstood what the flag was and instead of grabbing the flag lying on the ground grabbed the pole and started running. The plaintiff ran into the bottom of the pole which had a metal stake which hit her in the mount. The plaintiff lost one tooth, and three other teeth were broken.
The plaintiff sued claiming negligence and claims for premise’s liability. Premise’s liability is the legal theory that based on the type of person you are the duty owed by the land owner changes. Since the plaintiff was on the land, she claimed the landowner/defendant had not kept her safe to the legal standard required.
Summary of the case
The court first looked at the Definition of Negligence under Michigan Law. The elements to prove negligence in Michigan are identical to the majority of other states. “The elements of a negligence claim are “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.”
The court then determined that the issue the trial court had decided was that there was no duty owed to the plaintiff. The court then defined how a duty was to be determined.
“When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.””
“This inquiry involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” But the most important factor is the relationship of the parties.
The court found that the defendant owed a duty to provide proper instructions on how the game of capture the flag was to be played.
In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole. Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.
Once it is determined that the defendant owes the plaintiff a duty of care, then the reasonableness of the defendant’s conduct is a question of fact for the jury.
The court also looked at whether the injury was proximately caused by the actions of the defendant. “Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences.” However, the court held that proximate cause was a question for the jury.
The final issue was the premise’s liability claim. The court agreed with the trial court and upheld the dismissal of the claim. The plaintiff was an invitee to the land, and as such she was owed a “duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.‘””
The court found that the plaintiff was not harmed by a dangerous condition on the land. The danger was solely caused by the actions of the other campers not an inherent condition of the premises.
The appellate court sent the case back to the trial court on the issue of whether the camp was negligent in the way it instructed and ran the capture the flag game.
So Now What?
Kids get hurt. There is not much you can do about that, and if you can, you have probably stopped the earth from rotating. There was not much you can do here from a legal perspective to stop this litigation except tell parent’s things they should already know.
Kids get hurt. When your bring child to this camp, we will do everything we can to keep your child safe. However, we cannot protect your child from everything, much of anything. Between the outdoors, you not being here and other campers all sorts of injuries occur.
Do you understand that when you bring your child to this camp, your child can be hurt?
You could keep campers from playing games, or you could keep young girls who are being chased from running without looking where they are going. However, I think that earth rotation thing will be easier.
Plaintiff: Jonathan C. Gamze, as Next Friend for Julie Gamze,
Defendant: Camp Sea-Gull, Inc. and William P. Schulman, Defendants-Appellees, and Emily Lisner, Defendant
Plaintiff Claims: negligence and premises liability
Defendant Defenses: No duty and injury not caused by the premises
Holding: Premises liability claim was dismissed and the case was returned for trial on the negligence claim.
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 |
Outdoor Recreation Insurance, Risk Management, and Law
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law. To Purchase Go Here:
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)
Posted: May 13, 2013 Filed under: Legal Case, Michigan, Summer Camp, Youth Camps | Tags: Camp, Camp Sea-Gull, Capture the Flag, duty, Emily Lisner, Inc., Jonathan C. Gamze, Julie Gamze, Michigan, Michigan Court of Appeals, Negligence, Proximate Cause, Standard of review, Summer Camp, William P. Schulman, Youth Camp Leave a commentTo Read an Analysis of this decision see
Camp held liable when a camper misunderstands instructions, and plaintiff was not paying attention.
Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)
JONATHAN C. GAMZE, as Next Friend for JULIE GAMZE, a Minor, Plaintiff-Appellant, v CAMP SEA-GULL, INC. and WILLIAM P. SCHULMAN, Defendants-Appellees, and EMILY LISNER, Defendant.
No. 299433
COURT OF APPEALS OF MICHIGAN
2012 Mich. App. LEXIS 1227
June 21, 2012, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1]
Charlevoix Circuit Court. LC No. 09-054822-NO.
CORE TERMS: camper, flag, flagpole, towel, capture, foreseeable, premises liability, team’s, material fact, circle, lying, pole, matter of law, genuine issues, proximate cause, proximately, counselor, favorable, causation, grabbing, owed, top, pick, order granting, negligence claim, final order, proper instructions, dangerous condition, foreseeability, depositions
JUDGES: Before: WILDER, P.J., and HOEKSTRA and BORRELLO, JJ.
OPINION
Per Curiam.
In this case, plaintiff appeals from an order granting summary disposition in favor of defendants1 Camp Sea-Gull, Inc. (the Camp) and William Schulman, a part-owner and associate director of the Camp, on plaintiff’s claims of negligence and premises liability. Because genuine issues of material fact remain regarding plaintiff’s negligence claim, we affirm in part, reverse in part, and remand.2
1 Emily Lisner was dismissed by stipulation and is not involved in this appeal. Thus, our reference to “defendants” will refer to appellees.
2 Defendants have raised a question as to this Court’s jurisdiction over the appeal. Plaintiff filed the initial appeal of the order granting summary disposition before Lisner had been dismissed from the case. Accordingly, this Court dismissed the appeal for lack of jurisdiction. Gamze v Camp Sea-Gull, Inc, unpublished order of the Court of Appeals, entered July 13, 2010 (Docket No. 298202). We informed plaintiff, however, that he could seek to appeal the grant of summary disposition by filing a delayed application for leave under MCR 7.205(F). Defendants [*2] subsequently requested that the trial court tax their costs against plaintiff. On July 29, 2010, the trial court denied this motion except for a $20 motion fee. Plaintiff then filed the current appeal. The arguments on appeal do not concern the motion for costs but, instead, are exclusively aimed at the trial court’s decision to grant the motion for summary disposition.
When an appeal of right is dismissed for lack of jurisdiction or is not timely filed, an appellant may file an application for leave to appeal up to 12 months after entry of the final order to be appealed. MCR 7.205(F)(1) and (F)(3). Plaintiff filed this appeal on August 2, 2010, less than 12 months after May 21, 2010. Given the trial court’s notation in the orders below concerning which order was–or was not–intended as the final order in this case, we treat plaintiff’s claim of appeal as an application for leave and hereby grant it. MCR 7.205(D)(2); see also In re Morton, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).
I. BASIC FACTS
Julie Gamze and defendant Emily Lisner were both campers at the Camp in the summer of 2007. As part of a “Pirate Day” on July 15, 2007, the Camp organized a game of capture the flag on a [*3] large field divided into two halves. In the middle of each half was a circle, and in the middle of the circle was a five-foot tall flagpole3 with a colored flag on top. While the object of the game was to “capture” the opposing team’s “flag,” the “flag” to be seized was actually a piece of cloth or towel lying on the ground at the base of the flagpole. Participants were not supposed to attempt to capture the flag on top of the pole or the pole itself. Lisner testified that no one told her that the flagpole flag was not the correct flag to capture, and the counselor who explained the rules does not remember if she clarified that point. In the course of the game, Lisner grabbed the flagpole and began running with it. Gamze was running nearby, being chased by another camper, and the metal stake at the bottom end of the flagpole hit her in the mouth. She lost one tooth, and three others were broken.
3 The flagpole also had a metal tapered end or “stake” so it could be inserted and anchored into the ground.
Plaintiff filed suit against defendants, alleging negligence and premises liability. The trial court granted defendants’ motion for summary disposition and stated the following at the hearing:
I [*4] can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.
Anything that they did or failed to do was not the proximate cause of this Plaintiff’s injury. And, I don’t believe there is any material facts that are in dispute that would prevent the granting for the Motion for Summary Disposition under [MCR 2.116(C)(10)]. So that’s my ruling.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). When reviewing a motion brought under MCR 2.116(C)(10), we consider the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). A grant of summary disposition “is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 552.
III. ANALYSIS
A. NEGLIGENCE
The elements of a negligence claim are “(1) a duty [*5] owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). It is not entirely clear which element(s) the trial court found to be deficient in plaintiff’s claim. While only explicitly referencing causation, the trial court’s statement seemed to encompass three of the elements: duty (“I can’t see where this individual’s grabbing of the marker was a foreseeable event . . . .”; breach (“I can’t see where the [defendants] did anything wrong.”; and causation (“[a]nything that they did or failed to do was not the proximate cause of this Plaintiff’s injury.”). With the damages element not being disputed, we will address the remaining three elements.
The question of whether a defendant owes a plaintiff a duty of care is a question of law. Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.” In re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479 Mich 498, 505; 740 NW2d 206 (2007). “This inquiry [*6] involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” Id. (quotation marks omitted). But the most important factor is the relationship of the parties. Id.
Here, we conclude that defendants owed Gamze a duty to provide proper instructions for the game of “capture the flag.” In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole.4 Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.
4 This is especially foreseeable when the opposing team’s goal is to pursue and tag the flag carrier.
Once the existence of a duty toward Gamze is established, the reasonableness of the defendant’s conduct is a question [*7] of fact for the jury. Arias v Talon Development Group, Inc, 239 Mich App 265, 268; 608 NW2d 484 (2000). Thus, the next question is whether there is a genuine issue regarding whether defendants breached this duty by failing to provide the proper instructions.
In support of their motion for summary disposition, defendants provided, inter alia, the unsworn “statements” from two people who were camp counselors at the time of the accident. However, these statements do not comply with the requirements of MCR 2.116(G)(2) since they are not “affidavits, depositions, admissions, or other documentary evidence,” and consequently cannot be considered. Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich App 309, 321; 575 NW2d 324 (2009). Moreover, even if the statements were considered, they would not support granting defendants’ motion for summary disposition. The first statement was by Leah Glowacki, who was the programming counselor at the time of the incident. With regard to the instructions, she stated, “I instructed the campers to attempt to obtain the flag that was inside the circle on the opposite side of the field from where their team was stationed.” This statement does not establish [*8] that the correct instructions were given. In fact, when viewing the statement in a light most favorable to plaintiff, one could conclude that Glowacki’s instructions might possibly have been construed by at least some campers as a directive to remove the flag itself instead of the towel on the ground. The other statement was provided by Stephanie Plaine, who stated that she instructed the campers “to capture the team’s flag on the other side of the field which was located inside the circles drawn onto the grass.” Again, this statement does not specify that the instruction was to get the towel lying next to the flag.
Defendants did properly submit the depositions of six people, however. But none of the submitted testimony indicated that the campers were instructed to ignore the flagpole and only pick up the towel on the ground: Gamze could not recall what specific instructions were given; Lisner testified that she did not hear any specific instructions to take the towel on the ground instead of the pole itself; Jack Schulman and William Schulman both admitted that they did not hear the instructions that Glowacki and Plaine provided; Marsha Schulman admitted that she was not present when [*9] the instructions were given; and Plaine, herself, testified that she could not recall the specifics of the instructions that she gave. Therefore, when viewing all of this evidence in a light most favorable to plaintiff, there is a question of material fact on whether the Camp instructed the campers to only take the towel lying at the base of the flagpole instead of the flag or flagpole itself.
Finally, the trial court indicated that it found as a matter of law that defendants could not have proximately caused plaintiff’s injuries. But proximate cause is a factual question for the jury unless reasonable minds could not differ. Lockridge v Oakwood Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences. Campbell v Kovich, 273 Mich App 227, 232; 731 NW2d 112 (2006). Here, a reasonable juror could have concluded that a failure to instruct the campers properly could foreseeably result in an enthusiastic camper grabbing and removing the flagpole in order to “capture the flag” affixed to the top of it. And because the object of the game was for the camper [*10] to run the flag back to her team’s territory while other campers tried to tag her, a reasonable person could conclude that it was foreseeable that other campers might be hit and injured by the five-foot tall flagpole as it was being moved. Therefore, the trial court erred by holding as a matter of law that defendants could not have proximately caused Gamze’s injuries.
B. PREMISES LIABILITY
We now turn to plaintiff’s premises liability claim. Because Gamze was an invitee on the Camp’s premises, defendants owed a duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.'” Benton v Dart Properties, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006), quoting Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001) (emphasis added). Plaintiff must show that the duty was breached and that the breach proximately caused her injuries. Benton, 270 Mich App at 440.
However, Gamze was not harmed by a dangerous condition “on the land.” Instead, she was harmed when Lisner pulled the flagpole out of the ground and began running with it. The danger arose solely because of the actions of the participants and not because of [*11] an inherent condition of the premises. Thus, plaintiff’s claim properly sounds in negligence, not premises liability.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs are taxable pursuant to MCR 7.219, neither party having prevailed in full.
/s/ Kurtis T. Wilder
/s/ Joel P. Hoekstra
/s/ Stephen L. Borrello
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C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims
Posted: May 13, 2013 Filed under: Colorado | Tags: Children Youth and Family, Colo, Colorado, Definition, Negligence, parent, Waiver Leave a commentC.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.
(2) As used in this section, unless the context otherwise requires:
(a) “Child” means a person under eighteen years of age.
(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) 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.
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More beer less problems!
Posted: May 8, 2013 Filed under: Risk Management, West Virginia | Tags: Athletic Director, Beer, Seven Habits of Highly Effective People, Stadium, Stephen Covey, The 7 Habits of Highly Effective People, West Virginia, West Virginia University, WVU 4 CommentsI can see teetotalers hiding under the bed and certain religious sects nailing me to the cross, but think about the article!
Several years agoWest Virginia University quit selling beer in its football stadium. However, they allowed fans to tailgate at the stadium and leave the stadium during halftime. Consequently, fans would get loaded before the game to have their buzz last till halftime where they would leave the stadium to get buzzed again for the last half of the game. On top of that, sneaking alcohol into the stadium was a bigger game than what was being played on the field. What did the policy create? Problems and challenges.
Oliver Luck is athletic director. At football games at WVU, he started to notice a few familiar sights — the unbelievable, sheer athleticism, the marching bands… and the freshmen barfing all over the stadium.
“People drinking far too much at pre-game parties and tailgate parties before games. Sneaking alcohol into games. Leaving at halftime to drink even more and come back into the game,” said Luck.
WVU like most colleges prohibited alcohol and the sale of alcohol in its stadium. WVU realized that abstinence does not work!
So WVU started selling beer in the stadium. Contrary to popular belief, chaos did not run amuck at WVU football games.
“In 2010, we made 117 arrests on game days. In this past year, we only made 79. See, that’s almost a 35 percent reduction in arrests we made,” said Bob Roberts, West Virginia University police chief.
West Virginia made about $500,000 the sale of beer the first year. More money and less problems. (Sounds like a beer ad.) Believe me, no matter what the fines of the 35% of lost arrests, it would never make up the half million the university made.
You cannot stop people from doing what they want to do. We have millions incarcerated in prisons to prove that point. What we can do is make money on it and help those who want to do it to understand it and maybe exercise a little control over it.
More importantly instead of telling people how to live, let’s work with people to figure out the best way to solve everyone’s problems. As Stephen R. Covey said in “The Seven Habits of Highly Effective People,” make it a “Win Win.”
See Can selling beer help college fans drink less?
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Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Posted: May 6, 2013 Filed under: Cycling, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Central Park, Cycling, Cyclists, Day Camp, New York, New York City, NY, Oasis Children's Services, Recreation, Summer Camp, Summer Enrichment program Leave a commentPavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Cyclists deserved it to.
This is a lawsuit over an injury a cyclist received when he crashed in New York City. He crashed because an eighteen year old summer enrichment program counselor shoved him over with her “Stop Children Crossing” sign when he failed to stop at a light.
A summer enrichment program is a day camp for kids when parents have to work. The kids are taken on tours, programs, exercise and many involve a lot of outdoor recreation. In this case, the kids with two counselors were walking to a swimming pool. The program was run by the defendant Oasis Children’s Services.
While crossing a street only half the students made it across the street before the light changed. The defendant counselor kept her students back until the light changed again. She then proceeded out to the middle of traffic and held up a sign which said Stop Children Crossing. As the students started to cross she noticed a group of cyclists coming towards the crosswalk. All but one of the cyclists stopped. The one who did not stop was the defendant.
As per the protocol of the program, the counselor was supposed to yell at cyclists who look like they are not going to stop. If the cyclists do not stop a counselor it to put their body between the bicycle and the kids. (That is asking a lot of an 18-year-old kid!)
The light was red; the cyclist was not stopping so the counselor put her body between the kids and the cyclists. The cyclists still did not stop. The counselor waived her sign and yelled at the cyclists. At the last moment, she jumped out of the way, and she pushed the cyclists arm with her sign.
He crashed!
The cyclists sued for negligence that he crashed because a girl pushed him with a sign. The defendants raised the defense of the Sudden Emergency Doctrine.
Summary of the case
The sudden emergency doctrine has many different names and variations across the US. You should check your state to determine if it is available as a defense how the defense is defined. Do not rely on the sudden emergency doctrine to save you, it rarely does.
In New York, the Sudden Emergency Doctrine is defined as:
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. The actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”.
Basically, it says you can be negligent for the greater good. If your negligence is less than the damage or problem that not being negligent will create, then the Sudden Emergency Doctrine provides you a defense to a negligence claim.
In this case, the court found the actions of the defendant counselor in pushing the cyclists saved the children. “The evidence is credible that Marte [Defendant] pushed Pavane [Plaintiff] from his bicycle in order to prevent children from getting injured.”
Application of the Sudden Emergency Doctrine is a balancing test to some extent. The harm created by the negligent act is less than the harm that would have occurred if the defendant had not acted. 99% of the time only a jury will make the decision, whether your actions where worth it.
As a further little hit, the court held “It is the finding of this Court that Mr. Pavane’s own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident.”
So Now What?
The sad thing is the program had so much experience with cyclist’s running lights; they had developed a program to deal with it.
Cyclists of New York, you should be embarrassed!
The classic case of where the Sudden Emergency Doctrine would work is portrayed in “Touching the Void” by Joe Simpson.
Do not rely on the sudden emergency doctrine as a defense in your program or activity.
Plaintiff: Martin Pavane and Merrill Pavane
Defendant: Samidra Marte, Oasis Community Corporation and Oasis Children’s Services
Plaintiff Claims: Negligence
Defendant Defenses: Sudden Emergency Doctrine
Holding: For the Defendant
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Pavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Posted: May 6, 2013 Filed under: Cycling, Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Central Park, Cyclists, Day Camp, Metro Areas, New York, New York City, NY, Oasis Children's Services, Plaintiff, Summary judgment, Summer Camp, Summer Enrichment program Leave a commentPavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Martin Pavane and Merrill Pavane, Plaintiff(s), against Samidra Marte, Oasis Community Corporation and Oasis Children’s Services, Defendant(s).
33473/08
SUPREME COURT OF NEW YORK, KINGS COUNTY
37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
August 9, 2012, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, bicycle, street, crossing, counselor, emergency, crosswalk, walk, emergency doctrine, triable issues of fact, stop sign, deposition, cyclist, annexed, proximate cause, red light, matter of law, emergency situation, party opposing, affirmative defense, traffic light, reasonableness, deliberation, speculative, unexpected, proceeded, favorable, surprise, sudden, pushed
HEADNOTES
[*1216A] Negligence–Emergency Doctrine.
JUDGES: [**1] Hon. Bernard J. Graham, Acting Justice.
OPINION BY: Bernard J. Graham
OPINION
Bernard J. Graham, J.
Decision:
The captioned lawsuit was commenced by filing of a summons and complaint on or about December 8, 2008, by plaintiffs, Martin Pavane and Merrill Pavane, against defendants Samira Marte (incorrectly identified as “Samidra Marte”), Oasis Community Corporation, and Oasis Children’s Services, LLC. Plaintiffs’ claim is a negligence action against defendants stemming from a fall at Central Park and a derivative claim on behalf of plaintiff, Merrill Pavane.
Defendants move for summary judgment pursuant to CPLR § 3212 for dismissal of the plaintiffs’ complaint alleging that there are no triable issues of fact and that defendants are free from liability pursuant to the Emergency Doctrine’.
Background
Defendant Oasis Children’s Services, LLC (“Oasis”) is a company that runs summer enrichment programs for at-risk children in the tri-state area. They have several camp locations in New York City, including one in Central Park.
Defendant Oasis Community Corporation is a named defendant which is ostensibly related to Oasis Children’s Services, LLC.
During the summer of 2008, Oasis hired 18-year-old defendant Samira Marte [**2] (“Marte”) as a camp counselor. On August 22, 2008, Marte and another counselor, Rachel Carrion (“Carrion”), entered Central Park at 96th Street with their campers to reach a swimming pool at 110th Street. Their route required them to cross West Drive.
According to the deposition testimony of Ms. Marte, Rachel Carrion and several children crossed West Drive first. The walk signal changed to “do not walk” before Ms. Marte was able to cross with the rest of the group, so she stayed on the sidewalk with the children to wait for the light to change again. When the signal changed to “walk”, Ms. Marte followed camp guidelines and proceeded to the middle of the crosswalk to hold up her “stop/children crossing” sign. According to the deposition of Richard Thompson McKay, who is an Oasis supervisor and not a named party to the action, Oasis provided protocol training for all camp counselors on how to cross the street. Counselors are instructed to stand in the middle of the street with the stop sign before children may begin to pass. Counselors were also told that if it appears that a cyclist will not stop, then the counselors must first be “loud and verbal” and ask the cyclist to stop. If the [**3] cyclist still does not stop, then counselors must “put [their] body as best as [they] can in between bicyclist and the children that [they] have to protect.” (See Dep. of Richard Thompson McKay, pg. 11-12, annexed as Ex. “H” to the Aff. of Rodney E. Gould in support of motion for summary judgment).
Ms. Marte states that several bicyclists were traveling down West Drive and that all of them stopped for the red light except for “one person that kept going.” (See Dep. of Samira Marte, pg. 60-61, 73-74, annexed as Ex. “F” to the Aff. of Rodney E. Gould in support of motion for summary judgment). Ms. Marte observed the defendant, Martin Pavane (“Pavane”), approaching the red light on his bicycle and alleges that Mr. Pavane did not slow down. Since children were beginning to cross the street, Ms. Marte anticipated that the bicycle would collide with the crossing children and herself. In order to get Mr. Pavane to stop, Ms. Marte first waived her stop sign and yelled for him to stop. When the bicycle still did not stop or slow down, she tried to put herself in between the bicycle and the children by standing in front of the bicycle’s [***2] path. However, Ms. Marte was forced to move aside because [**4] she states that the bicycle was going too fast. She was afraid that the bicycle would run right into her and the children. Ms. Marte states that was the moment she decided to push Mr. Pavane’s arm with the stop sign (Marte Dep. pg. 74-77).
Discussion
In opposition to the defendants’ motion for summary judgment, plaintiffs argue that the defendants failed to include the Emergency Doctrine’ as an affirmative defense in their answer.
However, where the party opposing summary judgment has knowledge of the facts relating to the existence of an emergency and would not be taken by surprise with the use of the emergency defense, the doctrine does not have to be pleaded as an affirmative defense (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 61, 783 N.Y.S.2d 648 (2nd Dept. 2004)). Here, plaintiffs cannot claim that they were taken by surprise by defendants’ emergency defense. The depositions provide full descriptions of facts describing an emergency situation.
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so [**5] disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. [The] actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”. (Caristo v. Sanzone, 96 NY2d 172, 174, 750 N.E.2d 36, 726 N.Y.S.2d 334 (2001) (citing Rivera v. New York City Tr. Auth., 77 NY2d 322, 327, 569 N.E.2d 432, 567 N.Y.S.2d 629 (1991); see also Marks v. Robb, 90 AD3d 863, 935 N.Y.S.2d 593 (2nd Dept. 2011)). The depositions show that Marte was confronted with a sudden and unexpected emergency circumstance that left her with little time for deliberation. The evidence is credible that Marte pushed Pavane from his bicycle in order to prevent children from getting injured.
Ordinarily, the reasonableness of a party’s response to an emergency situation will present questions of fact for a jury, but it may be determined as a matter of law in appropriate circumstances (Bello v. Transit Auth. of NY City, 12 AD3d at 60; see also Koenig v. Lee, 53 AD3d 567, 862 N.Y.S.2d 373 (2nd Dept. 2008); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
In this case, defendants seek an award of summary judgment dismissing the plaintiffs’ claim which would require a determination by this Court that, as a matter of law, the actions taken by Ms. Marte were reasonable [**6] and did not present a question which should be presented to a jury. Although summary judgment is a drastic remedy, a court may grant summary judgment when the moving party establishes that there are no triable issues of material fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957)).
Rachel Carrion, the co-counselor who is not a named party to the action, testified that she saw Pavane ride his bicycle towards the crosswalk where herself and Marte were crossing the street with children from the Oasis summer camp (see Carrion Dep. pg. 8-9 annexed to Gould [***3] Aff. in support of motion for summary judgment). Carrion testified that Pavane was approaching them “at [a] speed” and “would not stop” (Carrion Dep. pg. 10). The testimony of Ms. Carrion is completely consistent and corroborative of Ms. Marte’s testimony. Ms. Marte stated that Mr. Pavane was not going to stop and was about to hit the four children who were crossing in the crosswalk (Marte Dep. pg 61).
The majority of Pavane’s testimony consists of mere speculative and conclusory assertions because he claims to not recall most details. For example, Pavane did not recall [**7] whether he saw children on the street (see Pavane Dep. pg. 17, annexed to the Aff of Leon Sager in opposition to the motion for summary judgment), but states that “it’s certainly possible there were people there.” (Pavane Dep. pg. 17). Carrion testified that there definitely were children on both sides of the crosswalk and some crossing in the middle before Marte pushed Pavane off his bicycle (Carrion Dep. pg. 11). Pavane also does not recall whether Marte was holding a “stop, children crossing” sign or whether she was waving at him, but he does remember Marte being a young woman in her teens (Pavane Dep. Pg. 17), who was “doing something with her hands at the particular time when she stepped in front of [him]” (Pavane Dep. pg. 18).
In reviewing the offered testimony in support of the motion and the opposition to the motion, the evidence submitted must be viewed in the light most favorable to the party opposing the motion (see Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 866 N.E.2d 448, 834 N.Y.S.2d 503 (2007)). Even assessing the available evidence in a light most favorable to Mr. Pavane, a neutral reading of the evidence would support a conclusion that Ms. Marte and the children were crossing the street with [**8] the “walk” sign in their favor; that Ms. Marte was positioned with her stop sign at the cross walk; and that Mr. Pavane was cycling into the crosswalk against the traffic light.
While this Court is hesitant to declare the actions of any party in an alleged tort claim to be reasonable as a matter of law, in certain cases, such as this, summary judgment may be appropriate. (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 783 N.Y.S.2d 648 (2004). The actions of the defendant, Marte, must be considered reasonable given the emergency she faced and the potentially harmful consequences to the children she was protecting. It is also apparent that Mr. Pavane proceeded into the intersection against the traffic light and, would fairly be considered to be the proximate cause of his injury. Where it is clear that the plaintiff’s actions were the sole proximate cause of the accident, plaintiff’s mere speculative assertions that defendant may have failed to act properly is insufficient to raise a triable issue of fact to defeat a summary judgment motion. (see Goff v. Goudreau, 222 AD2d 650, 650, 635 N.Y.S.2d 699 (2nd Dept. 1995); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
Conclusion
It is the finding of this Court that Mr. Pavane’s [**9] own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident. The actions of the camp counselor, Ms. Marte, in the context of crossing the street with young children who she feared would be injured by the cyclist can only be considered reasonable and appropriate in the given circumstances. Mr. Pavane has not offered evidence which would raise a triable issue of fact as to the reasonableness of Ms. Marte’s actions and to subject the defendants here to the expenses of a trial on this matter would be exceedingly unjust.
Accordingly, defendants’ motion for summary judgment is granted and the plaintiff’s complaint is dismissed.
This shall constitute the decision and order of this Court.
Dated: August 9, 2012
/s/
Hon. Bernard J. Graham, Acting Justice
Supreme Court, Kings CountyBottom of Form
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Amazing Off Road Maps on your phone….even with no bars!
Posted: May 2, 2013 Filed under: Colorado | Tags: App, Colorado, Colorado Parks and Wildlife, Geospatial PDF, Global Mapper, Global Positioning System, Google Maps, Maps, MVUM, Off Road, Stay the Trail, Stay the Trail Colorado, United States Forest Service, United States National Forest, US Forest Service, UTM 1 CommentStay the Trail Colorado did a great job with these!
Check Out New Smart MVUM Maps for Colorado National Forests!
Stay the Trail Colorado provides a central webpage where the public, organizations and agencies can download all US Forest Service Motor Vehicle Use Maps (MVUM) for National Forests and Grasslands located in Colorado. These maps are kept up to date as the US Forest Service updates their maps. Funding for this effort is provided by Colorado Parks and Wildlife in the form of grant funding that comes from registration of OHVs in Colorado. Stay the Trail and Great Outdoors Consultants have made the MVUMs “smarter” by making sure they all have geospatial information (the map knows where it’s located in the World) and by providing them in multiple formats. Smart MVUMs are provided in the following formats.
Geospatial PDF Files
Some National Forests are publishing PDF versions of MVUMs that are already geospatial which means that you can see map coordinates in Acrobat Reader using the geospatial location tool (found in the analysis toolbar/ menu). These maps can also be imported into some mapping programs such as Global Mapper. MVUMs that did not have geospatial information were processed to add geospatial information using Global Mapper software. All PDF MVUMs were exported in the following coordinate system: UTM – Zone 13 North – NAD1983 – meters
http://www.avenza.com/pdf-maps
Geospatial PDFs can also be used on Apple and Android smart phones/tablets using Avenza’s free application call PDF Maps. After the PDF MVUM is downloaded on the mobile device, cellular coverage is not needed to use it. This application shows the current GPS location of the user on the map and allows them to perform some basic GPS recording tasks! The application allows you to show the location of geotagged photos you’ve taken with your mobile device right on the MVUM map. PDF Maps has an online map store that allows users of the app to find MVUMs by name or their current location! This app is being used to distribute free maps for the National Park Service, USGS Topo maps and other free maps. The store also allows for sale of commercial maps such as National Geographic maps. All MVUMs found on the Stay the Trail webpage are now also available through the Avenza map store for free!
1. Go to “App Store”, search for “PDF Maps” and install
2. Open “PDF Maps”, select “Store” function from the lower bar
3. Select the search function in top right corner.
4. Search for “Stay The Trail” or “MVUM” or a Ranger District, select from the pins that appear
5. Use the “Free” button to download to the phone.
6. Downloaded maps show up in the “Maps” list on the lower left
7. Select appropriate map for the district’s trails you will be using. Your location appears using GPS sensor.
Note: The android version of the PDF Maps app is a beta version and is not currently linked to the Avenza map store. Maps can be loaded in the Android version by linking to the Stay the Trail webpage MVUMs, by emailing the PDF file or a link to it.
Weblinks:
http://staythetrail.org/mvum/index.php – All Colorado PDF MVUMs on one webpage
http://www.avenza.com/pdf-maps – information about the application
http://www.pdf-maps.com/get-maps – search for Colorado MVUMs on your computer – preview only
Google Earth Files
Geospatial PDF MVUM files were rasterized in Global Mapper software and then clipped to the map frame (excluded the legend). The rasterized MVUM files were then exported to Google Earth .kmz files. These files can be loaded into Google Earth desktop and mobile applications. To load a .kmz file on your mobile device, email yourself the appropriate .kmz file or a link to the .kmz file on the Stay the Trail webpage. Google Earth mobile will show your current location on the MVUMs. MVUMs in this format allow the user to load adjacent MVUMs and look at them in 3D. Google Earth also allows the user to add other vector data on top of the MVUM such as trails or other data they have. A brief description of the MVUM file and a link to the Stay the Trail webpage are included in the .kmz files so the user can access the legend and other information that has been removed from the .kmz version of the MVUMs. All Google Earth MVUMs were exported in the following coordinate system: Latitude-Longitude – WGS84 – decimal degrees.
Weblink:
http://www.staythetrail.org/mvum/kmz/ – All Colorado Google Earth MVUMs on one webpage
Geotiff Files
Geospatial PDF MVUM files were rasterized in Global Mapper software and then clipped to the map frame (excluded the legend). The rasterized MVUM files were then exported to geotiff (.tif) files. Geotiffs are raster files that include geospatial information. These files can be loaded into Arcmap, Global Mapper, Terrasync, Arcpad and other GIS/GPS programs. They can also be loaded into Avenza PDF Maps mobile application! MVUMs in this format allow the user to load adjacent MVUMs and look at them side-by-side. GIS programs allow the user to add other vector data on top of the MVUM such as trails or other data. A brief description of the MVUM file and a link to the Stay the Trail webpage are included as text files so the user can access the legend and other information that has been removed from the .tif version of the MVUMs. All geotiff MVUMs were exported in the following coordinate system: UTM – Zone 13 North – NAD1983 – meters.
Weblink:
http://www.staythetrail.org/mvum/geotiff/ – All Colorado Geotiff MVUMs on one webpage
Check these and to make sure you know where you are and where you should not be when off road in Colorado.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Stay the Trail, Colorado, Stay the Trail Colorado, App, Maps, Off Road, Colorado Parks and Wildlife, MVUM, Google Maps, UTM,
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GetOutdoorsColorado.org
Posted: April 30, 2013 Filed under: Colorado | Tags: Colorado, Colorado Parks & Recreation Association, Denver Botanic Gardens, Earth Day, Outdoor recreation, Parks and Recreation, United States Forest Service, Wildlife Leave a comment NEWS RELEASE
SPRING INTO THE OUTDOORS WITH GetOutdoorsColorado.org
Have you ever wanted to go for a hike, a bike ride, or try a new outdoor activity, but you weren’t sure where to go? In celebration of Earth Day, the Colorado Parks & Recreation Association and Get Outdoors Colorado are launched a new website called GetOutdoorsColorado.org to give people thousands of opportunities to explore and experience Colorado.
The new website is an online springboard to all activities and events outdoors in Colorado. GetOutdoorsColorado.org is free for organizations that provide outdoor events and experiences to post and share activities and programs. The website is free for the public to search activities and to create a customized membership for outdoor interests.
GetOutdoorsColorado.org is a Colorado-specific launch pad for people looking for new recreation, educational and stewardship opportunities. Activities and programs can be queried by
14er Yoga Gurus (Photo credit: Zach Dischner)
activity type, geographic location, date or organization. Members can post photos and videos of their adventures and even receive email reminders of activities. The website also offers a children’s resource section that features games, trail maps, outdoor myths and outdoor facts.
The interactive website is an outcome of a years’ worth of collaboration between US Forest Service, Colorado Parks and Wildlife, GP Red, Colorado Alliance for Environmental Education, Colorado Kids Outdoors, The Denver Botanic Gardens, The Colorado Parks and Recreation Association and many others. GetOutdoorsColorado.org has more than 80 partners posting activities in 25 different categories throughout 20 counties across the state. The website is also fully integrated on social media platforms to allow for greater connectivity statewide.
“The website is a great resource. It helps us showcase our events and programs to the public in a collaborative and accessible way, in addition to connecting us to a diverse partner network,” said Karl Brummert, Executive Director of the Audubon Society of Greater Denver.
Get Outdoors Colorado is made up of various federal, state and local agencies, nonprofits and for-profit companies that are dedicated to connecting children 
and families to nature and healthy, active, outdoor lifestyles.
“GetOutDoorsColorado.org is a unique resource for people searching for recreation opportunities across Colorado. With a wide range of partners including parks and recreation agencies, nonprofits as well as tourism organizations, there is an activity for everyone. The website has the ability to search for an activity by type and date in any area of Colorado and allows people anywhere in the state to find something close to home or close to where they are vacationing. It truly is a great way to find your next outdoor adventure,” said Cathy Metz, President of the Colorado Parks and Recreation Association and Director of Parks and Recreation for the City of Durango.
Log on and create an account during the week of April 22 to personalize your GetOutdoorsColorado.org experience and spring into the outdoors this Earth Day!
Indiana Equine Liability Statute used to stop litigation
Posted: April 29, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana | Tags: 4-H, 4-H Club, Animal, Equine, Equine Liability Statute, Equus (genus), health, Horse, Indiana, Sports, United States Leave a commentPerry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.
In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.
The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.
The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.
Summary of the case
The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.
The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.
34-31-5-3. Warning notices required.
(a) This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.
(b) A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.
(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.
The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.
The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one thing’s horses do is kick; number two is bite and number three throw you off; This from a person who has been kicked, bitten and thrown off horses.)
The court found the plaintiff was injured by an inherent risk of hanging around horses.
The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.
So Now What?
The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.
Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.
The second issue is always having extra statutorily required warning signs, posting them wherever there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.
Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.
Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.
Plaintiff: Teresa Perry
Defendant: Whitley County 4-H Clubs Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Indiana Equine Liability Statute
Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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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
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Better World Club is behind the new California 3’ Passing Rule……Again
Posted: April 25, 2013 Filed under: California, Cycling | Tags: Better World Club, California, California Bicycle Coalition, Cycling, Hollywood, Jerry Brown, Passing Leave a comment
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Yes, cyclists or not, 
Paid Internship with meaningful Natural Resource Work and Research
Posted: April 23, 2013 Filed under: Colorado | Tags: Bureau of Land Management, Colorado, Internship, Jennifer Freeman, x, y, z Leave a commentColorado Youth Corps Association is partnering with the Bureau of Land Management to offer paid internships across the state as a pathway to natural
English: Bureau of Land Management logo (Photo credit: Wikipedia)
resource careers. CYCA is currently seeking to fill 13 positions that are 12-week, full-time, paid internships ($10-$13) with Field Offices across Colorado to perform meaningful natural resource work and research. A handful of the positions have an early May start date.
You may find these listings at www.cyca.org/careers/ with links to the Position Descriptions for your review. We kindly ask that you pass this information along to your networks.
If you have any questions about these positions please feel free to reach out to the identified contact for each position; or contact CYCA Associate Director Scott Segerstrom at ssegerstrom and 303-863-0604.
Many thanks in advance for your support of these opportunities.
Jennifer Freeman, Executive Director
Colorado Youth Corps Association
225 East Sixteenth Avenue, Suite 475
Denver, CO 80203
Direct – 303-863-0602
Main – 303-863-0600
Cell – 720-273-9861
Fax – 303-863-0610
.
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Indiana Equine Activity Statute
Posted: April 22, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana Leave a commentBURNS INDIANA STATUTES ANNOTATED
Title 34 Civil Law and Procedure
Article 6 Definitions
Chapter 2 Definitions
Go to the Indiana Code Archive Directory
Burns Ind. Code Ann. § 34-6-2-40 (2013)
34-6-2-40. Equine.
“Equine”, for purposes of IC 34-31-5, means a horse, pony, mule, donkey, or hinny.
HISTORY: P.L.1-1998, § 1.
34-6-2-41. Equine activity.
(a) “Equine activity”, for purposes of IC 34-31-5, includes the following:
(1) Equine shows, fairs, competitions, performances, or parades that involve equines and any of the equine disciplines, including dressage, hunter and jumper horse shows, grand prix jumping, three (3) day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting.
(2) Equine training or teaching activities.
(3) Boarding equines.
(4) Riding, driving, inspecting, or evaluating an equine, whether or not monetary consideration or anything of value is exchanged.
(5) Rides, trips, hunts, or other equine activities of any type (even if informal or impromptu) that are sponsored by an equine activity sponsor.
(6) Placing or replacing horseshoes on an equine.
(b) The term does not include being a spectator at an equine activity.
HISTORY: P.L.1-1998, § 1.
34-6-2-42. Equine activity sponsor.
“Equine activity sponsor”, for purposes of IC 34-31-5, means a person who sponsors, organizes, or provides facilities for an equine activity.
HISTORY: P.L.1-1998, § 1.
34-6-2-43. Equine professional.
“Equine professional”, for purposes of IC 34-31-5, means a person who, for compensation:
(1) instructs a participant on riding, driving, or being a passenger upon an equine;
(2) rents to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine; or
(3) rents equipment or tack to a participant.
HISTORY: P.L.1-1998, § 1.
34-6-2-69. Inherent risks of equine activities.
“Inherent risks of equine activities”, for purposes of IC 34-31-5, means the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
HISTORY: P.L.1-1998, § 1.
NOTES:
NOTES TO DECISIONS
Go to Summary Judgment Proper. Summary Judgment Proper.
Go to Topic List Summary Judgment Proper.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor because the facts viewed most favorably to the participant showed that her injury, occurring when she was unexpectedly kicked by a horse that became agitated during the sponsor’s competition because another horse was standing too close and began sniffing its rear, resulted from the inherent risks of equine activities in IC 34-6-2-69. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
34-6-2-95. Participant.
(a) “Participant”, for purposes of IC 34-31-5, means a person, whether an amateur or a professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
(b) “Participant”, for purposes of IC 34-31-9, has the meaning set forth in 34-31-9-7.
HISTORY: P.L.1-1998, § 1; P.L.6-2012, § 219, emergency eff. February 22, 2012.
NOTES: Amendments.
The 2012 amendment added the (a) designation and added (b).
34-31-5-1. Limitation on liability—Claims prohibited.
(a) Subject to section 2 [IC 34-31-5-2] of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
(b) Subject to section 2 of this chapter, a participant or participant’s representative may not:
(1) make a claim against;
(2) maintain an action against; or
(3) recover from;
an equine activity sponsor or equine professional for injury, loss, damage, or death of the participant resulting from an inherent risk of equine activities.
HISTORY: P.L.1-1998, § 27.
NOTES:
NOTES TO DECISIONS
Go to Appellate Review. Appellate Review.Go to Summary Judgment Proper. Summary Judgment Proper.
Go to Topic List Appellate Review.
In a case in which a rider sued an equestrian center and its owner after the rider was injured while mounting her horse, because the trial court properly granted summary judgment for defendants based upon the fact the rider had waived any claim against defendants by signing a waiver agreement, the propriety of the trial court’s decision concerning defendants’ immunity under the equine activities statute, IC 34-31-5-1, was not addressed on appeal. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 2006 Ind. App. LEXIS 1588 (2006).
Go to Topic List Summary Judgment Proper.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
34-31-5-2. Limitations on applicability of chapter.
(a) This section does not apply to the horse racing industry.
(b) Section 1 [IC 34-31-5-1] of this chapter does not prevent or limit the liability of an equine activity sponsor or an equine professional:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the dangerous latent condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
(5) who intentionally injured the participant.
(c) Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor or an equine professional under the product liability laws.
HISTORY: P.L.1-1998, § 27.
34-31-5-3. Warning notices required.
(a) This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.
(b) A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.
(c) The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.
HISTORY: P.L.1-1998, § 27.
NOTES:
NOTES TO DECISIONS
Go to Warning in Compliance. Warning in Compliance.
Go to Topic List Warning in Compliance.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
34-31-5-4. Written contracts.
(a) If there is a written contract, this chapter does not apply unless the written contract entered into by an equine professional for:
(1) the providing of professional services;
(2) the providing of instruction; or
(3) the rental of:
(A) equipment or tack; or
(B) an equine;
to a participant contains in clearly readable print the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.
(b) The warning notice required by subsection (a) must be included in a written contract described in subsection (a) whether or not the contract involves equine activities on or off the location or site of the equine professional’s business.
HISTORY: P.L.1-1998, § 27.
34-31-5-5. Contents of warning notice.
The warning notice that must be printed on a sign under section 3 [IC 34-31-5-3] of this chapter and included in a written contract under section 4 [IC 34-31-5-4] of this chapter is as follows:
WARNING
Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.
HISTORY: P.L.1-1998, § 27.
NOTES:
NOTES TO DECISIONS
Go to Warning in Compliance. Warning in Compliance.
Go to Topic List Warning in Compliance.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
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