Chancy M. Elliott, Administrator of the Estate of Caleb Mckinley Smith, Deceased v. Trevor Carter
Record No. 160224
SUPREME COURT OF VIRGINIA
October 27, 2016, Decided
PRIOR HISTORY: [*1] FROM THE CIRCUIT COURT OF RICHMOND COUNTY. Harry T. Taliaferro, III, Judge.
Elliott v. Carter, 2016 Va. LEXIS 49 (Va., Apr. 12, 2016)
COUNSEL: David R. Simonsen, Jr. (Keith B. Marcus; ParisBlank, on briefs), for appellant.
W.F. Drewry Gallalee (Harold E. Johnson; Williams Mullen, on brief), for appellee.
JUDGES: OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.
OPINION BY: S. BERNARD GOODWYN
PRESENT: All the Justices.
OPINION BY JUSTICE S. BERNARD GOODWYN
In this appeal, we consider the evidence required to submit a question of gross negligence to a jury.
This matter arises from a wrongful death suit brought by Chancy M. Elliott (Elliott) on behalf of the estate of Caleb McKinley Smith (Caleb), alleging gross negligence on the part of Trevor Carter (Carter), the peer leader of Caleb’s Boy Scout troop, after Caleb drowned on a Scout camping trip. The material facts are not in dispute.
On June 25, 2011, Caleb was a 13-year-old Boy Scout on an overnight camping trip with his troop along the Rappahannock River near Sharps, Virginia. Carter, then 16 years old, was the Senior Patrol Leader, the troop’s peer leader. Caleb had been taking lessons to learn how to swim–he had had one from Carter that morning–but he could [*2] not yet swim.
At about 11:00 a.m., Carter led Caleb and two other Boy Scouts into the river along a partially submerged sandbar. One of the other two Scouts could swim (Scott), and the other could not (Elijah).
When they were approximately 150 yards into the river, Carter and Scott decided to swim back to shore. Carter told Caleb and Elijah to walk back to shore the way they had come, along the sandbar. As Caleb and Elijah walked back to shore along the sandbar, they both fell into deeper water. Caleb yelled to Carter for help and Carter attempted to swim back and rescue him. Although Elijah was rescued, neither Carter nor three adult Scout leaders, who attempted to assist, were able to save Caleb.
Elliott filed a wrongful death action in the Circuit Court of Richmond County against Carter, four adult Scout leaders, the Boy Scouts of America, and the affiliated Heart of Virginia Council, Inc. (collectively, Defendants), alleging that they had failed to adequately supervise Caleb. The court granted the Defendants’ demurrer asserting charitable immunity.
Elliott amended her complaint to allege both gross and willful and wanton negligence by Carter and gross negligence by the four adult Scout [*3] leaders, and demanded a jury trial.* Defendants filed a motion for summary judgment arguing that, based upon undisputed material facts, there was no gross negligence because there was no complete lack of care alleged and the danger of drowning was open and obvious. Defendants relied upon Elliott’s responses to requests for admission and allegations in the amended complaint in establishing the undisputed material facts.
* Elliott non-suited the actions against the Boy Scouts of America and the Heart of Virginia Council, Inc.
Following a hearing and supplemental briefing, the court granted the motion for summary judgment as to all Defendants. It found that, while the undisputed material facts would be sufficient to submit the question regarding a claim of simple negligence to a jury, the facts did not support a claim for gross negligence, because in Virginia, “there is not gross negligence as a matter of law where there is even the slightest bit of care regardless of how insufficient or ineffective it may have been,” and there was evidence that Carter did try to save Caleb.
Elliott appeals the ruling of the circuit court only as to Carter. On appeal, she argues that the circuit court erred [*4] in granting summary judgment and in concluding that, as a matter of law, a jury could not find Carter’s actions constituted gross negligence.
[HN1] “In an appeal from a circuit court’s decision to grant or deny summary judgment, this Court reviews the application of law to undisputed facts de novo.” St. Joe Co. v. Norfolk Redev’t & Hous. Auth., 283 Va. 403, 407, 722 S.E.2d 622, 625 (2012).
[HN2] Gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004).
It is a heedless and palpable violation of legal duty respecting the rights of others which amounts to the absence of slight diligence, or the want of even scant care. Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing a form of reckless or total disregard for another’s safety. Deliberate conduct is important evidence on the question of gross negligence.
Chapman v. City of Virginia Beach, 252 Va. 186, 190, 475 S.E.2d 798, 800-01 (1996) (citations and internal quotation marks omitted). [HN3] Gross negligence “requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.” Cowan, 268 Va. at 487, 603 S.E.2d at 918; see also Thomas v. Snow, 162 Va. 654, 661, 174 S.E. 837, 839 (1934) (“Ordinary and gross negligence differ in degree of inattention”; [*5] while “[g]ross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence,” “it is something less than . . . willful, wanton, and reckless conduct.”).
[HN4] “Ordinarily, the question whether gross negligence has been established is a matter of fact to be decided by a jury. Nevertheless, when persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Because “the standard for gross negligence [in Virginia] is one of indifference, not inadequacy,” a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care. Kuykendall v. Young Life, 261 Fed. Appx. 480, 491 (4th Cir. 2008) (relying on Frazier, 234 Va. at 392, 362 S.E.2d at 690-91, Chapman, 252 Va. at 190, 475 S.E.2d at 801, and Cowan, 268 Va. at 486-87, 603 S.E.2d at 918 to interpret Virginia law); see, e.g., Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189, 7 Va. Law Rep. 1368 (1991) (affirming the circuit court’s ruling that the plaintiff failed to establish a prima facie case of gross negligence when the evidence showed that the defendant “‘did exercise some degree of diligence and care’ and, therefore, as a matter of law, his acts could not show ‘utter disregard of prudence amounting to complete neglect of the safety of another'”).
Here, even viewing the evidence in the [*6] light most favorable to Elliott, the non-moving party, as required in considering a motion for summary judgment, Commercial Business Systems v. Bellsouth Services, 249 Va. 39, 41-42, 453 S.E.2d 261, 264 (1995), the undisputed material facts support the conclusion that Carter exercised some degree of care in supervising Caleb. Therefore, his conduct did not constitute gross negligence.
First, it is not alleged that Caleb had any difficulty walking out along the sandbar with Carter. Second, there is no allegation that Carter was aware of any hidden danger posed by the sandbar, the river or its current. Third, Carter instructed Caleb to walk back to shore along the same route he had taken out into the river, and there was no evidence that conditions changed such that doing so would have been different or more dangerous than initially walking out, which was done without difficulty. Finally, Carter tried to swim back and assist Caleb once Caleb slipped off the sandbar, which is indicative that Carter was close enough to attempt to render assistance when Caleb fell into the water, and that Carter did attempt to render such assistance. Thus, although Carter’s efforts may have been inadequate or ineffectual, they were not so insufficient as to constitute the indifference and utter disregard [*7] of prudence that would amount to a complete neglect for Caleb’s safety, which is required to establish gross negligence.
Because a claim of gross negligence must fail as a matter of law when there is evidence that the defendant exercised some degree of diligence and care, the circuit court did not err in finding that no reasonable jurist could find that Carter did nothing at all for Caleb’s care. As such, there was no question for the jury, and the circuit court properly granted Carter’s motion for summary judgment.
Accordingly, the judgment of the circuit court will be affirmed.
DISSENT BY: McCULLOUGH
JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.
Ordinarily, whether gross negligence has been established is a matter of fact to be decided by a jury. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Of course, when “persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Id. In my view, the facts presented in this tragic case were sufficient to present a jury question. Accordingly, I respectfully dissent.
Here, Caleb could not swim, a fact that was known to the defendants. He did not walk out on his own into the river. Rather, he was [*8] led, without a life jacket or other safety equipment, over a partially submerged sandbar far into the river. The complaint alleges that “the Rappahannock River . . . is a major river with a strong current.” Caleb was then abandoned on a sandbar in the middle of the river and told to walk back. A partially submerged sandbar in the middle of a river with a strong current is a very dangerous place to be, particularly for a non-swimmer without a life vest. Ever-shifting sandbars, obviously, are not stable structures. They can easily dissipate. A major river with strong currents like the Rappahannock presents a different situation than a tranquil pond. Carter then swam away too far to effectuate a rescue should Caleb slip and fall into the river. In my view, “reasonable persons could differ upon whether the cumulative effect of these circumstances constitutes a form of recklessness or a total disregard of all precautions, an absence of diligence, or lack of even slight care.” Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798, 801 (1996).
I would also find that the purported acts of slight care, separated in time and place from the gross negligence at issue, do not take the issue away from the jury. The only two acts of slight care the defendants identify [*9] are the fact that Caleb was given a swimming lesson before he drowned — but there is no indication that Caleb could swim — and that Carter, after swimming too far away to make any rescue effectual, tried to swim back to save Caleb after he had fallen into the river. Significantly, Carter led Caleb into danger in the first place. When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence. Accordingly, I would reverse and remand the case for a trial by jury.
Antonio Mooring, a Minor Who Sues by His Mother and Next Friend, Patricia Mooring, et al. v. Virginia Wesleyan College, et al.
Record No. 981270
SUPREME COURT OF VIRGINIA
257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
April 16, 1999, Decided
PRIOR HISTORY: [***1] FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Everett A. Martin, Jr., Judge.
COUNSEL: Philip J. Geib for appellants.
Allan S. Reynolds, Sr. (Reynolds, Smith & Winters, on brief), for appellees.
JUDGES: Present: All the Justices. OPINION BY JUSTICE ELIZABETH B. LACY.
OPINION BY: ELIZABETH B. LACY
[**620] [*510] OPINION BY JUSTICE ELIZABETH B. LACY
Antonio Mooring, a minor, suffered a traumatic amputation of his right thumb when John Braley closed a door while Mooring had his hand on the portal of the doorway. The incident occurred at the Boys and Girls Club of Hampton Roads (the Club). Mooring, through his next friend, sued Braley and his employer, Virginia Wesleyan College. The trial court dismissed Mooring’s motion for judgment finding that Braley was a volunteer at the Club and entitled to charitable immunity as a result of the Club’s status as a charity. Because we find that Braley was not engaged in the charity’s work at the time of the alleged negligence, we conclude that the trial court erred in dismissing Mooring’s motion for judgment.
[*511] Braley is a professor at Virginia Wesleyan College, teaching in a recreation and leisure studies program. The Club contacted Braley seeking volunteers to work in its programs. In response, Braley established a program with the Club in which [***2] students in Braley’s recreation programming class were required to spend six hours observing the children and volunteering at the Club. The students were required to return to the classroom, design recreation programs for the children they observed, and then implement those programs at the Club. Braley would go to the Club to observe the students conducting the programs and would “help the students out” when they needed it. The students were not graded directly on the basis of their work at the Club, but on the basis of a report they submitted to Braley describing their learning experience.
On the day Mooring was injured, one of Braley’s students was conducting a wellness and body-conditioning program for thirteen to eighteen-year-olds in the Club’s weight room. The student was giving a talk to the participants and Braley was observing her. At the student’s request, Braley went to the door to keep younger children not involved in the student’s program out of the room. While Braley was tending the door, Mooring was injured.
The trial court held an evidentiary hearing on the defendants’ joint motion to dismiss. The parties stipulated that the Club was a charity entitled to [***3] charitable immunity and that Mooring was a beneficiary of the charity. The trial court held that because Braley received no extra compensation from the Club or Virginia Wesleyan College for the services he rendered, and because Braley’s role at the Club was both supervising his students and “helping the Club perform its good work,” he was “a volunteer at the Club” and thus entitled to charitable immunity under Moore v. Warren, 250 Va. 421, 463 S.E.2d 459 (1995). 1
1 In dismissing the motion for judgment against both defendants, the trial court did not specifically address whether Virginia Wesleyan College was entitled to charitable immunity, and this issue is not before us on appeal.
[**621] In Moore, an American Red Cross volunteer was sued for negligence allegedly committed while transporting the injured party to a routine medical visit in a car owned by the Red Cross. Providing transportation for such medical visits was a service of the Red Cross. The driver contended that he was “‘cloaked with the immunity [***4] of the charity'” and that charitable immunity was not limited to the charity itself. Id. at 422, 463 S.E.2d at 459. In resolving this issue of first impression, we stated:
[*512] Like any organization, a charity performs its work only through the actions of its servants and agents. Without a charity’s agents and servants, such as the volunteer here, no service could be provided to beneficiaries. Denying these servants and agents the charity’s immunity for their acts effectively would deny the charity immunity for its acts.
Id. at 423, 463 S.E.2d at 460. Based on this rationale, we included the driver in the immunity of the charity and held that he was immune from liability to the charity’s beneficiaries for negligence while he was “engaged in the charity’s work.” Id. at 425, 463 S.E.2d at 461. Thus, Moore requires [HN1] an individual seeking the cloak of a charity’s immunity to establish that he was an agent or servant of the charity at the time of the alleged negligence and that the alleged negligence for which he seeks immunity occurred while he was actually doing the charity’s work.
Assuming, without deciding, that the “role” Braley had at the Club identified by [***5] the trial court satisfied the requirement that Braley be an agent or servant of the Club, Braley qualifies for protection under the Club’s charitable immunity only if the alleged negligence occurred while he was doing the charity’s work. Mooring contends that at the time of the injury Braley’s “presence did not directly benefit the Club,” and that Braley presented no evidence that “he was doing anything in particular for the Club at the time of the incident.” We agree.
While Braley testified that he “helped out” at the Club whenever he could, the record shows that at the time of his alleged negligence, Braley was at the Club to observe the activities of his student. He was not there to directly perform any of the Club’s work; rather he was carrying out his duties as a professor at Virginia Wesleyan College. He was observing his student and acting as “doorkeeper” at the student’s request to allow his student to properly conduct the wellness class. Under these facts, we conclude that Braley was not entitled to charitable immunity because he was not engaged in the work of the charity at the time of his alleged negligence.
Accordingly, we will reverse the judgment of the trial [***6] court and remand the case for further proceedings.
Reversed and remanded.
Lawsuit filed against a scuba diving center for failing to properly rescue distressed diver and failing to follow rescue procedures.Posted: July 16, 2014
You need to read the entire article and remember these facts probably came from the plaintiff’s position. How do you know this; the plaintiff’s attorney is quoted in the article saying the dive center’s attorneys declined to comment. Now that is investigative journalism. Woodward and Bernstein would be proud.
The deceased died on a recreational scuba diving trip. Allegedly, the deceased surfaced in distress and was not rescued properly: “…dive instructors of negligence and failing to throw Kevin Jerome Kraemer a flotation device and follow emergency procedures.”
Allegedly, the dive staff “…the dive crew tried to rescue and later resuscitate him; they made key errors in the heat of the moment.”
Failing to rescue has never been successful and is very rare. Failing to follow procedures is common. The biggest question from our point of view is whose procedures. If the procedures are the associations, ASTM, etc., nothing like your own group sinking your ship.
What do you think? Leave a comment.
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CODE OF VIRGINIA
TITLE 3.2. AGRICULTURE, ANIMAL CARE, AND FOOD
SUBTITLE V. DOMESTIC ANIMALS
CHAPTER 62. EQUINE ACTIVITY LIABILITY
GO TO CODE OF VIRGINIA ARCHIVE DIRECTORY
Va. Code Ann. § 3.2-6202 (2014)
§ 3.2-6202. Liability limited; liability actions prohibited
A. Except as provided in § 3.2-6203, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation, partnership, or limited liability company, shall not be liable for an injury to or death of a participant resulting from the intrinsic dangers of equine activities and, except as provided in § 3.2-6203, no participant nor any participant’s parent, guardian, or representative shall have or make any claim against or recover from any equine activity sponsor, equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the intrinsic dangers of equine activities.
B. Except as provided in § 3.2-6203, no participant or parent or guardian of a participant who has knowingly executed a waiver of his rights to sue or agrees to assume all risks specifically enumerated under this subsection may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. The waiver shall give notice to the participant of the intrinsic dangers of equine activities. The waiver shall remain valid unless expressly revoked in writing by the participant or parent or guardian of a minor.
HISTORY: 1991, c. 358, § 3.1-796.132; 2003, c. 876; 2008, c. 860.
NOTES: LAW REVIEW. –For article, “Virginia’s Rule of Non-waiver of Liability for Negligent Acts: Hiett v. Lake Barcroft Community Association, Inc.,” see 2 Geo. Mason L. Rev. 27 (1994).
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TITLE 8.01. CIVIL REMEDIES AND PROCEDURE
CHAPTER 3. ACTIONS
ARTICLE 25. WINTER SPORTS SAFETY ACT.
GO TO CODE OF VIRGINIA ARCHIVE DIRECTORY
Va. Code Ann. § 8.01-227.11 (2013)
§ 8.01-227.11. Definitions
As used in this article, unless the context requires a different meaning:
“ANSI Ski Lift Code” means the American National Standard (B77.1-2006): Passenger Ropeways — Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirements, as published by the American National Standards Institute, including any supplements thereto or revisions thereof.
“Competition” means any contest or event operated by a winter sports area operator or any other party authorized by the operator at a winter sports area involving comparison of skills, including, but not limited to, a ski race, mogul contest, jumping event, freestyle event, snowcross contest, or other similar contest or event. “Competition” includes training sessions or practice for a contest or event.
“Competition terrain” means any part of a winter sports area in which an operator has authorized a competition to take place.
“Competitor” means a winter sports participant who actually is engaged in a competition in any portion of a winter sports area made available by the winter sports area operator.
“Designated trail” means a winter sports area trail on which a participant is permitted by the operator to participate in a winter sport.
“Freestyle terrain” and “freestyle terrain park” means any portion of a winter sports area that has been designated as such by the operator for freestyle skiing, freestyle snowboarding, or similar freestyle winter sports and includes, but is not limited to, the terrain park itself and features such as rails, boxes, jumps, hits, jibs, tabletops, spines, ramps, banks, pipes, half-pipes, quarter-pipes, tables, logs, or other man-made features such as buses and other vehicles, propane tanks, and tractor tires; snowcross terrain and features; and other constructed or natural features, but does not include moguls, bumps, or rollers or jumps not built by the operator, unless they are within a designated freestyle terrain park.
“Freestyler” means a winter sports participant utilizing freestyle terrain or a freestyle terrain park.
“Helmet” means a type of molded headgear equipped with a neck or chin strap specifically designed by the manufacturer to be used while engaged in the winter sport of alpine skiing or snowboarding.
“Inherent risks of winter sports” or “inherent risks of the winter sport” include:
1. Existing and changing weather conditions and visibility;
2. Hazards associated with varying surface or subsurface conditions on a single trail or from one trail to another, including but not limited to hazards such as participant use, snow in any condition and changing snow conditions, man-made snow, synthetic snow, ice, synthetic ice, snow or ice falling from a tree or natural or man-made structure, crust, slush, soft spots, ridges, rollers, knobs, holes, grooves, tracks from winter sports area vehicles, bare spots, rocks, boulders, stumps, logs, and brush or other forest growth or debris, or piles thereof;
3. Variations in difficulty of terrain, whether natural or as a result of slope use, slope design, or both;
4. Trails that have, or fall away or drop off toward, natural or man-made obstacles or hazards, including but not limited to sharp corners, ridges, jumps, bumps, rollers, moguls, valleys, dips, compressions, cliffs, ravines, drop-offs, streams, rivers, ponds, lakes, stream beds, open water or water with thin ice, holes, steep, flat, and uphill sections, and all variants and combinations thereof;
5. The potential for collision with other participants or other individuals, including with winter sports area personnel, whether or not those personnel are on duty or off duty; with wild or domestic animals; or with equipment or objects such as winter sports area infrastructure, snowmaking equipment, buildings and posts, and stationary and moving lit or flagged winter sports area vehicles;
6. The potential for a participant to act in a negligent or reckless manner that may cause or contribute to the injury or death of the participant or other individuals or damage to property;
7. The location, construction, design, layout, configuration, and condition of trails, freestyle terrain, and competition terrain;
8. The fact that use of trails, freestyle terrain, and competition terrain and participation in or being near races or other competitions or events, including but not limited to as a participant, employee at a winter sports area, spectator, or observer, involves the risk of serious injury or death or damage to property;
9. The fact that a helmet may not afford protection in all instances and that failure to wear a helmet that is properly sized, fitted, and secured may increase the risk of injury or death or the risk of more severe injury; and
10. The fact that the use of passenger tramways may be hazardous to passengers, including but not limited to risks resulting from loading or unloading a tramway and the potential for a passenger to fall from a tramway.
“Operator” or “winter sports area operator” means any person who has responsibility for the operations of a winter sports area, including its officers, directors, and employees and agents acting within the scope of their employment.
“Participant” or “winter sports participant” means an individual of any age or physical or mental ability who is an amateur or professional invitee of the operator or a trespasser and who participates in a winter sport at the winter sports area, whether or not consideration is paid to participate in the winter sport and whether or not the participant holds a valid admission ticket for all or a portion of the winter sports area, and any employee of the operator who participates in a winter sport either as part of his employment duties or as recreation.
“Participates in a winter sport” or “participating in a winter sport” means:
1. Using a trail or other terrain at a winter sports area to engage in a winter sport;
2. Participating in training or lessons for a winter sport as either an instructor or a student;
3. Being a spectator, observer, bystander, or pedestrian of or to any activity on a trail or other terrain at or near a winter sports area; or
4. Being a passenger on a passenger tramway.
“Passenger” means any individual, including a winter sports participant, while being transported or conveyed by a passenger tramway, while waiting in the immediate vicinity for such transportation or conveyance, while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the following passengers, or while boarding or embarking upon or unloading or disembarking from a passenger tramway.
“Passenger tramway” means any ski lift, chairlift, gondola, tramway, cable car, or other aerial lift and any rope tow, conveyor, t-bar, j-bar, handle tow, or other surface lift used by an operator to transport participants, spectators, observers, or pedestrians at a winter sports area, and any associated components including, but not limited to, lift towers, concrete tower foundations, tower bolts, tower ladders, lift terminals, chairs, gondolas, t-bars, j-bars, conveyors, and other structures relating to passenger tramways.
“Person” means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
“Snowmaking equipment” means any machine used to make snow, including but not limited to snow guns and any associated towers, components, pipe, hydrant, hose, or other structures or equipment, including electrical equipment.
“Trail” or “winter sports area trail” means any slope, trail, run, freestyle terrain, or competition terrain located in a winter sports area. “Trail” includes edges and transition areas to other terrain, but does not include a tubing park.
“Tubing” means sliding on inflatable tubes, minibobs, sleds, toboggans, or any other comparable devices down a prepared course or lanes at a winter sports area.
“Tubing park” means an area designated by an operator for tubing.
“Winter sport” means a recreational or sporting activity, including sliding, jumping, walking, or traveling on a winter sports area trail for alpine skiing; Nordic skiing; telemark skiing; freestyle skiing; snowboarding; freestyle snowboarding; snowshoeing; tobogganing; sledding; or use of a snowmobile, minibob, snowbike, or comparable device; or any similar activity or use of a device that takes place at any time of the year on natural snow, man-made snow, ice, synthetic snow, synthetic ice, or any other synthetic surface, including a competition or the use of any device by a disabled or adaptive participant for a winter sport. “Winter sport” does not include ice skating or tubing.
“Winter sports area” means all the real and personal property under control of the operator or on the premises of such property that is being occupied by the operator by fee simple, lease, license, easement, permission, or otherwise, including but not limited to any and all trails, freestyle terrain, competition terrain, passenger tramways, or other areas of real property. “Winter sports area” does not include a tubing park except for any passenger tramway serving a tubing park and the immediate vicinity of such a passenger tramway in which individuals embark upon or disembark from the passenger tramway.
“Winter sports area infrastructure” means:
1. Passenger tramways;
2. Snowmaking equipment;
3. Towers, buildings, shacks, fixtures, furniture, and other structures, including utility infrastructure, located on the winter sports area property; and
4. Signs, fences, ropes, flags, posts, poles, and any other materials or structures used for posting signs or to manage or direct winter sports participants, spectators, observers, or pedestrians or any combination thereof.
“Winter sports area vehicle” means a vehicle used on a winter sports area trail in the operation and maintenance of winter sports areas and competitions and includes, but is not limited to, snowmobiles, all-terrain vehicles, and any other similarly sized vehicles as well as larger maintenance vehicles such as snow grooming equipment.
§ 8.01-227.12. Warnings and other winter sports area operator requirements
A. Each winter sports area operator shall include the following warning on each ticket, season pass, and written contract for professional services, instruction, or the rental of equipment to a winter sports participant and on each sign required by this subsection:
“WARNING: Under Virginia law, a ski area operator or other winter sports area operator is not liable for an injury to or death of a winter sports participant in a winter sport conducted at this location, or for damage to property, if such injury, death, or damage results from the inherent risks of the winter sport or from the participant’s own negligence. The inherent risks of a winter sport include, among others, risks associated with the land, equipment, other participants, and animals, as well as the potential for you or another participant to act in a negligent manner that may contribute to the injury, death, or damage. You are assuming the inherent risks of participating in a winter sport at this location. Complete copies of the applicable Virginia law and the participant responsibility code published by the National Ski Areas Association are available for review at each ticket sales office of this winter sports area and online at [insert website for winter sports area].”
Every ticket, season pass, and written contract for professional services, instruction, or the rental of equipment to a participant shall contain the warning required by this subsection in clearly readable print. Every sign required by this section shall contain the warning required by this subsection in black letters, with each letter to be a minimum of one inch in height. An operator also may print on a ticket; season pass; written contract for professional services, instruction, or rental of equipment to a participant; or any sign required by this section any additional warning it deems appropriate. The warning required by this section does not constitute a preinjury contractual release and nothing in this section alters the common law of Virginia with regard to preinjury contractual releases.
B. Each operator shall install and maintain a sign containing the warning set forth in subsection A (i) at each designated ticketing office, (ii) at each front desk at each building or facility at which guests check in, (iii) at or near each ticket sales office of the winter sports area, and (iv) at, near, or en route to the loading area of each passenger tramway.
C. Each operator shall install and maintain at or near the beginning of each designated trail a sign that contains the name of the trail and any of the applicable difficulty-level words and emblems contained in this subsection, as determined by the operator. Directional arrows may be included on any sign, but shall be included if the sign is located at such a distance or position relative to the beginning of a trail that it would not be understandable by a reasonably prudent participant without directional arrows. As applicable, the signs shall indicate: (i) “Easiest” and include a green circle emblem, (ii) “More Difficult” and include a blue square emblem, (iii) “Most Difficult” and include a black diamond emblem, (iv) “Expert” or “Extreme Terrain” and include a two black diamond emblem, (v) “Freestyle Terrain” and include an orange oval emblem, or (vi) “Closed” and include a border around a black figure in the shape of a skier inside with a band running diagonally across the sign.
D. Each operator shall install and maintain at, near, or en route to the loading area for each passenger tramway that does not service trails that are designated by the operator as “Easiest” a sign that includes the following warning:
“WARNING. This lift does not service any trails that are designated Easiest (green circle emblem). All of the trails serviced by this lift are designated [as applicable, More Difficult (blue square emblem), Most Difficult (black diamond emblem), Expert (two black diamond emblem), or Freestyle Terrain (orange oval emblem)].”
E. Each operator shall install and maintain at, near, or en route to the entrance to each trail containing freestyle terrain a sign that indicates the location of the freestyle terrain. Each sign shall be denoted by an orange oval emblem, a stop sign emblem, and the statements “Freestyle skills required” and “Helmets are recommended.” Each sign also may include any other freestyle warning the operator deems appropriate.
F. Whenever trail grooming or snowmaking operations are being undertaken, or trail grooming equipment is being operated, on a trail that is at that time open to the public, the operator shall place or cause to be placed a sign to that effect at the top or beginning of the trail.
G. An operator may vary from the specific location requirements required by this section provided that the location is substantially the same as the location required by this section and that the sign is plainly visible to a reasonably prudent winter sports participant abiding by all of the participant’s duties and responsibilities.
H. Each operator shall make available, by oral or written report or otherwise, information concerning the daily conditions of its trails.
I. Each operator that offers a winter sport at nighttime shall meet the lighting standards for that winter sport provided by Illuminating Engineering Society of North America RP-6-01, Sports and Recreational Area Lighting § 6.24, including any supplements thereto or revisions thereof.
J. Each operator shall, upon request, provide (i) a freestyler who holds a valid admission ticket to the winter sports area’s freestyle terrain a reasonable opportunity to view the freestyle terrain and (ii) a competitor who has properly registered for the competition a reasonable opportunity to visually inspect the portion of the winter sports area designated by the operator for the competition.
K. Each operator shall provide a ski patrol and first-aid services.
L. Each operator shall make available on the winter sports area’s website and at each ticket sales office of the winter sports area for review by any winter sports participant, upon request, a copy of the participant responsibility code posted and available at each winter sports area and a copy of this article.
§ 8.01-227.13. Winter sports area trail maps
Each operator, upon request, shall provide to a participant a trail map of all trails located in the operator’s winter sports area. The maps shall be available at each ticket sales office and at other locations at the winter sports area such that the maps are easily accessible to participants. All trail maps shall indicate the skill-level designation for each trail at the winter sports area as designated in subsection C of § 8.01-227.12.
§ 8.01-227.14. Freestyle terrain
In addition to providing the signage and warnings set forth in subsections C and E of § 8.01-227.12, an operator shall construct a barricade through use of fencing, flagging, or similar means at the entrance to any trail containing freestyle terrain. The barricade shall contain an entrance opening not wider than 30 feet.
§ 8.01-227.15. Winter sports area vehicles
An operator shall install and maintain on or near the top of each winter sports area vehicle that is present on any designated trail of a winter sports area during the operating hours of any passenger tramway serving that trail a flashing or rotating light that flashes or rotates whenever the vehicle is on any such trail. An operator also shall install and maintain on any snowmobile, all-terrain vehicle, or any other similarly sized vehicle that is present on any designated trail during the operating hours of any passenger tramway serving that trail a red or orange flag that is at least 40 square inches in size and is mounted at least five feet from the bottom of the vehicle’s tracks or tires.
§ 8.01-227.16. Passenger tramways
A. Each operator shall be responsible for the safe operation and maintenance of each passenger tramway in its winter sports area whenever the tramway is in use, and for the safe construction of any passenger tramway that the operator constructed. At least once during each calendar year, each operator shall have all passenger tramways within the operator’s winter sports area inspected by an individual who is qualified pursuant to Virginia law to inspect passenger tramways for compliance with the requirements of the ANSI Ski Lift Code and shall not operate a passenger tramway that is not in compliance until that passenger tramway is certified by such an individual as being in compliance. An operator’s compliance with this inspection requirement does not by itself preclude potential liability on the part of the operator for any failure to operate or maintain a passenger tramway safely.
B. If a participant or a passenger using a passenger tramway at a winter sports area with the permission of the operator is unfamiliar with the use of a passenger tramway and asks for instruction on its use, the operator shall provide a reasonable opportunity for such instruction. In addition to the signs required by subsections A, B, and D of § 8.01-227.12, an operator shall install and maintain at or near the loading area for each passenger tramway in the winter sports area a sign stating that if a participant or other passenger is unfamiliar with the use of the passenger tramway and asks for instruction for its use, the operator will provide a reasonable opportunity for such instruction.
§ 8.01-227.17. Duties and responsibilities of winter sports participants and certain other individuals
A. A winter sports participant has a duty and responsibility to:
1. Exercise reasonable care in engaging in winter sports at the winter sports area, including, but not limited to, the exercise of reasonable care in:
a. Participating in a winter sport at a winter sports area only on designated trails that are not marked “closed” and refraining from participating in a winter sport in any portion of a winter sports area that is not a designated trail or is marked “closed”;
b. Knowing the range of his ability to participate in the winter sport in which he is participating and acting within the limits of that ability;
c. Being the sole judge of his knowledge of and ability to successfully negotiate any trail or passenger tramway and refraining from negotiating any trail or passenger tramway until obtaining sufficient knowledge and ability to do so;
d. Heeding and obeying all warnings, notices, and signs provided by an operator and not altering, defacing, removing, or destroying any such warning, notice, or sign;
e. Maintaining control of his speed and course at all times and maintaining a proper lookout so as to be able to avoid other participants and objects;
f. Staying clear of any winter sports area vehicle or infrastructure, other than when embarking on or disembarking from a passenger tramway or when present at or in a residential building or other building that is open to the public;
g. Wearing retention straps, ski brakes, or other devices to prevent runaway equipment;
h. Making a visual inspection of any winter sports area competition terrain and viewing any freestyle terrain the participant intends to use;
i. Acting in a safe manner that will avoid contributing to the injury or death of himself or others or the damage to property, including refraining from participating in a winter sport when the participant’s ability to do so safely is impaired by the consumption of alcohol or by the use of any narcotic or other drug or while under the influence of alcohol or any narcotic or other drug, or placing, fabricating, or shaping any object in a trail;
j. Embarking on a passenger tramway only with the authority of the operator;
k. Boarding or dismounting from a passenger tramway only at a designated area;
l. Acting in a manner while riding a passenger tramway that is consistent with posted rules and that will not interfere with the proper and safe operation of the passenger tramway;
m. Refraining from throwing or expelling any object while riding on a passenger tramway, and from placing an object on or about the uphill track, the entry area, or the exit area of any passenger tramway;
n. Crossing the uphill track of a passenger tramway only at designated locations; and
o. When involved in a winter sports collision or other accident involving another individual who the participant knows or reasonably should know is in need of medical or other assistance, obtaining assistance for that individual, notifying the proper authorities, and not leaving the scene of the collision or accident without giving the participant’s personal identification, including his name and local and permanent address, to an employee or representative of the operator or to someone providing assistance to the individual, except for the purpose of obtaining assistance for the individual, in which case the participant shall give his personal identification to an employee or representative of the operator or to someone providing assistance to the individual after obtaining such assistance; and
2. When requested, provide his personal identification to an employee or representative of the winter sports area or operator.
B. Each passenger using a passenger tramway with the permission of an operator shall abide by and fulfill each duty and responsibility set forth in subsection A that is applicable to use of a passenger tramway.
C. Each participant, and each passenger using a passenger tramway with the permission of an operator, shall be deemed as a matter of law to have seen and understood all postings, signs, and other warnings provided by the winter sports area operator as required by this article.
D. An operator is entitled to assume that each passenger who boards a passenger tramway has sufficient knowledge, ability, and physical dexterity to embark upon, disembark from, and negotiate the passenger tramway. Any passenger who is unfamiliar with the use of a passenger tramway or who believes he does not have sufficient knowledge to embark upon, disembark from, and negotiate a passenger tramway shall ask the operator for instruction on such use or to provide such knowledge. Nothing in this article shall be construed to extend liability to an operator for injury to or death of a participant or other individual or damage to property resulting from a passenger who is unfamiliar with the use of a passenger tramway or believes he does not have sufficient knowledge to embark, disembark from, or negotiate a passenger tramway and does not ask the operator for instruction on such use or to provide such knowledge, or who does not have the ability or physical dexterity to embark upon, disembark from, or negotiate a passenger tramway.
E. Any individual who is not authorized by the operator to use or be present at the winter sports area shall be deemed a trespasser.
§ 8.01-227.18. Helmets
Each winter sports participant, or the parent or legal guardian of, or adult acting in a supervisory position over, a participant under the age of 18, shall be responsible for determining whether the participant will wear a helmet and whether the helmet is sufficiently protective and properly sized, fitted, and secured.
Nothing in this article shall be construed to extend liability to an operator for injury to or death of a participant or other individual or damage to property resulting from a participant not wearing a helmet while participating in a winter sport.
§ 8.01-227.19. Assumption of risks
A. A winter sports participant shall be presumed to have known the inherent risks of the winter sport in which he participates, to have fully appreciated the nature and extent of such risks, and to have voluntarily exposed himself to such risks, even if a particular risk was not specifically presented or stated to the participant by the operator. A passenger who uses a passenger tramway with the permission of an operator shall be presumed to have known the risks of winter sports that are applicable to the use of passenger tramways, to have fully appreciated the nature and extent of such risks, and to have voluntarily exposed himself to such risks, even if a particular risk was not specifically presented or stated to the individual by the operator. Such presumption may be rebutted by the participant or passenger by proving that the participant or passenger did not know the particular inherent risk of winter sports that proximately caused the injury or death or damage to property at issue, did not fully appreciate the nature and extent of such risk, or did not voluntarily expose himself to such risk.
B. An operator’s negligence is not an inherent risk of winter sports, and a participant or passenger is not presumed to have accepted the risk of such negligence and the injuries proximately caused therefrom.
C. In determining if the presumption set forth in subsection A applies in a particular case, whether a particular circumstance or set of circumstances constitutes an inherent risk of winter sports shall be a question of law, and whether the participant or passenger assumed the particular inherent risk of winter sports shall be a question of fact.
D. Nothing herein shall prevent a participant or passenger from offering evidence that he did not know the particular inherent risk of winter sports that proximately caused the injury or death or damage to property at issue, did not fully appreciate the nature and extent of such risk, or did not voluntarily expose himself to such risk.
§ 8.01-227.20. Liability of winter sports area operator
A. A winter sports area operator shall be liable if the operator does any of the following:
1. Commits an act or omission related to a winter sport that constitutes negligence or gross negligence regarding the safety of an individual, or of property, and that act or omission proximately causes injury to or the death of the individual or damage to property; or
2. Recklessly, knowingly, or intentionally commits an act or omission related to a winter sport that proximately causes injury to or the death of a winter sports participant or other individual or damage to property.
B. No operator shall be liable and no individual or individual’s representative may recover from an operator under subdivision A 1 or subsection C if the individual is found to have assumed the risk of his injury or death, or damage to property, pursuant to § 8.01-227.19 or if a proximate cause of the injury, death, or damage was his own negligence, provided that in any action for damages against an operator pursuant to subdivision A 1 or subsection C, the operator shall plead, as appropriate, the affirmative defense of (i) assumption of the risk by the individual, (ii) contributory negligence by the individual, or (iii) both assumption of the risk and contributory negligence.
C. A winter sports area operator shall not be considered a common carrier under Virginia law but shall be liable for any injury to or death of an individual or damage to property caused by the operator’s failure to operate a passenger tramway in a reasonable manner or to comply with any mandatory provision of the ANSI Ski Lift Code.
D. The liability of a winter sports area operator to another individual who is not authorized by the operator to use or be present at the winter sports area shall be only the liability for the duty owed under Virginia law to a trespasser.
§ 8.01-227.21. Common law regarding minors
Nothing in this article shall abrogate Virginia common law regarding either (i) the capacity of a minor to be contributorily negligent or to assume a risk or (ii) the standard for measuring the conduct of a minor.
§ 8.01-227.22. Failure to fulfill duty or responsibility not negligence per se
An operator’s or participant’s failure to abide by or fulfill a duty or responsibility under this article shall not constitute negligence per se.
§ 8.01-227.23. Applicability of article
Any liabilities and presumptions pursuant to this article apply only with regard to actions or potential actions between an operator and a participant or passenger. This article has no applicability to actions between a participant or passenger and any other person.
CODE OF VIRGINIA
TITLE 59.1. TRADE AND COMMERCE
CHAPTER 37. CONTRACTS; INDEPENDENT SALES REPRESENTATIVES
GO TO CODE OF VIRGINIA ARCHIVE DIRECTORY
Va. Code Ann. § 59.1-455 (2013)
§ 59.1-455. Definitions
As used in this chapter, unless the context requires a different meaning:
“Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the total dollar amount of orders or sales or as a specified amount per order or per sale.
“Principal” means a person who manufactures, produces, imports or distributes a product for wholesale and who contracts with a sales representative to solicit orders or sales for such product and compensates the sales representative, in whole or in part, by commission.
“Sales representative” means a person other than an employee who contracts with a principal to solicit wholesale orders or sales and who is compensated, in whole or in part, by commission, but shall not include a person who purchases exclusively for his own account for resale.
§ 59.1-456. Contracts between principals and sales representatives
When a principal contracts with a sales representative to solicit wholesale orders within this Commonwealth, such contract shall (i) be in writing, (ii) disclose the method by which the commission is to be computed and paid, (iii) disclose the territory of the sales representative and whether such territory is exclusive, (iv) be signed by the principal and the sales representative, and (v) be provided to the sales representative.
§ 59.1-457. Payment of sales commission
A. Every sales representative shall be paid the earned commission and all other compensation earned or payable in accordance with the terms of the contract.
B. When a contract between a principal and a sales representative is terminated, for any reason, except by mutual agreement, all earned commissions shall be paid within a period specified in the contract, but in no event shall such period exceed thirty days from the date of termination or, in the case of orders processed subsequent to termination, thirty days from shipment. Such commission and other compensation shall be paid to the sales representative at the usual place of payment unless the sales representative requests that the commission be sent to him through regular mail. If the commission is sent through regular mail, it is deemed to have been paid for purposes of this subsection on the date that it is postmarked.
§ 59.1-458. Waiver prohibited
Any provision of any agreement intending to waive the rights of any party to any provision of this chapter shall be void.
§ 59.1-459. Absence of contract not affirmative defense
The failure to execute a contract as required by § 59.1-456 shall not constitute an affirmative defense in any action relating to the provisions of this chapter.
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