New Hampshire: Search and Rescue Response Expenses; Recovery
Posted: June 6, 2023 Filed under: New Hampshire, Search and Rescue (SAR), Uncategorized Leave a commentNew Hampshire Statutes
Title 18. FISH AND GAME
Chapter 206. FISH AND GAME COMMISSION
Conservation Officers, Superintendents of Hatcheries, and Other Employees
Current through Chapter 91 of the 2021 Legislative Session
§ 206:26-bb. Search and Rescue Response Expenses; Recovery
I. Any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response, unless the person shows proof of possessing a current version of any of the following:
(a) A hunting or fishing license issued by this state under title XVIII.
(b) An OHRV registration under RSA 215-A, a snowmobile registration under RSA 215-C, or a vessel registration under RSA 270-E.
(c) A voluntary hike safe card. The executive director shall adopt rules under RSA 541-A for the issuance to purchasers on the department’s Internet site, and subsequent annual renewals, of a hike safe card prior to a person’s need for a search and rescue response. The annual fee for a hike safe card shall be $25 for an individual or $35 for a family. A “family” shall consist of the purchaser, the purchaser’s spouse, and the purchaser’s minor children or stepchildren. In addition, if the purchaser or the purchaser’s spouse has been appointed as a family guardian for an individual under RSA 464-A, that individual shall be considered part of the purchaser’s family. A transaction fee determined by the department shall be for the Internet license agent as provided in RSA 214-A:2. The executive director shall forward to the state treasurer the sum collected from each individual hike safe card purchased and each family hike safe card purchased, less the amount of such transaction fee, for deposit in the fish and game search and rescue fund under RSA 206:42.
I-a. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs by the required date, the department may pursue payment by legal action, or by settlement or compromise, and the responsible person shall be liable for interest from the date that the bill is due and for legal fees and costs incurred by the department in obtaining and enforcing judgment under this paragraph. All amounts recovered, less the costs of collection and any percentage due pursuant to RSA 7:15-a, IV(b), shall be paid into the fish and game search and rescue fund established in RSA 206:42.
II. If any person fails to make payment under paragraph I, the executive director of the fish and game department may:
(a) Order any license, permit, or tag issued by the fish and game department to be suspended or revoked, after due hearing.
(b) Notify the commissioner of the department of health and human services of such nonpayment. The nonpayment shall constitute cause for revocation of any license or certification issued by the commissioner pursuant to RSA 126-A:20 and RSA 151:7.
(c) Notify the director of motor vehicles of such nonpayment and request suspension of the person’s driver’s license pursuant to RSA 263:56.
III. Regardless of a person’s possession of a document satisfying subparagraph I(a), (b), or (c), a person shall be liable to the department for search and rescue response expenses if the person is judged to have done any of the actions listed in RSA 153-A:24, I.
Cite as (Casemaker) RSA 206:26-bb
History. Amended by 2016, 166: 2, eff. 6/3/2016.
Amended by 2016, 166: 1, eff. 6/3/2016.
Amended by 2016, 165: 1, eff. 6/3/2016.
Amended by 2014, 230: 1, eff. 1/1/2015.
Note:
2008, 167:2, eff. June 6, 2008.
Title 12. PUBLIC SAFETY AND WELFARE Chapter 153-A. EMERGENCY MEDICAL AND TRAUMA SERVICES
Reimbursement for Public Agency Response Services Current through Chapter 91 of the 2021 Legislative Session
§ 153-A:24. Responsibility for Public Agency Response Services
I. A person shall be liable for response expenses if, in the judgment of the court, such person:
(a) Negligently operates a motor vehicle, boat, off highway recreational vehicle, or aircraft while under the influence of an alcoholic beverage or controlled drug and thereby proximately causes any incident resulting in a public agency response;
(b) Takes another person or persons hostage or threatens to harm himself or another person, thereby proximately causing any incident resulting in an appropriate public agency response; or
(c) Recklessly or intentionally creates a situation requiring an emergency response.
II. A person’s liability under this subdivision for response expenses shall not exceed $10,000 for any single public agency response incident.
Cite as (Casemaker) RSA 153-A:24 Note: 1999, 345:6, eff. July 1, 1999.
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Confusing underlying reason for filing a lawsuit against a gymnastics’ studio for questionable injuries gets slammed by the Ohio Appellate court.
Posted: June 5, 2023 Filed under: Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue), Uncategorized | Tags: Diva Gymnastics Academy, Gymnastics, Gymnastics Academy, minors, Ohio, Release, Release Law, Waiver 1 CommentPlaintiffs argued the injuries to their children were caused by the gym instructors attempting to get back at the parents.
Campagna-McGuffin v. Diva Gymnastics Acad., Inc., 199 N.E.3d 1034 (Ohio App. 2022)
State: Ohio; Court of Appeals of Ohio, Fifth District, Stark County
Plaintiff: Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson
Defendant: Diva Gymnastics Academy, Inc., Travis Seefried
Plaintiff Claims: Negligence
Defendant Defenses: Release, Assumption of the Risk
Holding: For the Defendant
Year: 2022
Summary
Parents of kids studying at a gymnastics studio were thrown out of the gym. The parents sued claiming the gym was getting back at the kids by exercising them for too long and hard causing injuries. However, in deposition, the kids said they were sore but not injured. The parents also signed a release that stops claims by minors in Ohio.
Facts
On June 25, 2020, appellants Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson, filed a complaint against appellee Diva Gymnastics Academy, Inc., alleging negligence, negligent supervision, bodily injury with mental anguish, and loss of consortium. Diva is owned and operated by Dr. Lisa Ford (“Ford”).
Appellants McGuffin, Bagnola, and Benson filed their first amended complaint on September 23, 2020, adding appellee Travis Seefried, the head coach at Diva, as a defendant, and alleging the following claims: negligence, negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.
Appellants, who brought these claims on behalf of their daughters, alleged that, between 2017 and 2019, their daughters were injured as a result of excessive conditioning they were made to do by Seefried and Diva. Specifically, appellants allege they had to do excessive frog jumps, excessive butt scoots, excessive v-ups, and hang on the bars for long periods of time. They allege this extra conditioning amounted to a form of punishment, which breached appellees’ duty to teach, train, and instruct according to United States of America Gymnastics (“USAG”) rules, and the duty of ordinary care for conducting gymnastics activities. There are no allegations of any sexual misconduct against appellees.
On November 20, 2020, appellant Felisha Waltz, as legal guardian of Abeka Fouts, filed a complaint under a separate case number, alleging similar conduct and causes of action against appellees. In the second case, appellant Waltz filed a second amended complaint, adding appellant Courtney Hawk, as legal guardian of Samantha Hawk, as a plaintiff in the case.
Appellees filed answers in each of the cases, denying the allegations against them, and arguing appellants filed their cases as a way to seek revenge on appellees. Specifically, appellees argue that four of the five appellant gymnasts were asked to leave Diva due to inappropriate conduct, such as harassing other gymnasts and disobeying coaches.
…the trial court granted appellees’ motion for summary judgment. The court found: (1) the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct; (2) appellants’ claims are barred by the Ohio Recreational Activity Doctrine because appellants accepted the risks inherent in the sport by engaging in competitive gymnastics; and (3) appellants acknowledged the inherent risk and expressly assumed the risk by signing “Release, Indemnification, and Hold Harmless Agreements.”
Analysis: making sense of the law based on these facts.
This was an interesting case to read and is still puzzling as to the real motive for the lawsuit. Where the lawsuit failed is the complaint said the students were injured by the actions of the defendants, yet in testimony during depositions, the students stated they were not injured.
This also extended to the affidavits filed by the plaintiffs supporting those injury claims. The affidavits were excluded from the record (struck) because they conflicted with the testimony in the depositions. Meaning the depositions of the plaintiffs were taken. The defendant filed a motion for summary judgment and in response to the defendant’s motion for summary judgment; they supplied affidavits supporting their response. The court found the affidavits were conflicting (and obviously self-serving) so the affidavits were struck.
Affidavits that are inconsistent with earlier deposition testimony are subject to being stricken. “An affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment.” Byrd v. Smith. Further, “[w]hen determining the effect of a party’s affidavit that appears to be inconsistent with the party’s deposition and that is submitted either in support of or in opposition to a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the deposition.”
This is an extremely rare action on behalf of the court. Thus, the court found the action of the plaintiff in doing this to be beyond reasonable. The court went so far as to review the depositions and point out the inconsistencies in the affidavits.
The trial court provided a detailed description of how each of the affidavits contradicts the affiant’s deposition testimony. Appellants contend the affidavits were merely condensed versions of each affiant’s deposition testimony, and the affidavits did not contradict the deposition testimony. This Court has reviewed each of the depositions and affidavits at issue. We find the trial court did not abuse its discretion in determining the affidavits contradict the depositions, and concur with the trial court’s analysis in striking each of the affidavits.
The courts’ actions were fully supported by the appellate court.
The court then dived into the legal issues of the appeal. The court held that in Ohio, there were three ways to sue for injuries that arose from recreational sporting activities. “Three standards are used to permit recovery for injuries received during sports and recreation activities: (1) intentional tort; (2) willful or reckless misconduct, and (3) negligence.”
Here the plaintiff claimed the defendant was negligent. Ohio, like most other states, has the following requirements to prove negligence.
In order to establish a cause of action for negligence, a plaintiff must demonstrate: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) and the plaintiff suffered injury proximately caused by the defendant’s breach of duty.
Ohio has the same defenses as most other states to negligence claims for sports and recreational activities. Assumption of the risk is a defense to a claim of negligence.
However, when a defendant shows the plaintiff assumed the risk of injury through participating in an inherently dangerous activity, the duty of care is eliminated.
Ohio recognizes three types of assumption of the risk: express, primary, and implied assumption of the risk. Primary assumption of the risk is:
Primary assumption of the risk is a defense of extraordinary strength because it essentially means “that no duty was owed by the defendant to protect the plaintiff from that specific risk,” so a “court must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery.” A successful primary assumption of the risk defense means that the duty element of negligence is not established as a matter of law. Thus, the defense prevents the plaintiff from making a prima facie case of negligence. The applicability of the primary-assumption-of-the-risk defense presents an issue of law for the court to decide.
If no duty is owed there can be no breach of a duty, therefore, no negligence. To prove negligence the plaintiff must prove all the elements to win their case. When applied to sports or recreational cases, this relieves the burden on the defendant to protect the players from the risks of the sport.
When individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional.
The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated. “The types of risks associated with [an] activity are those that are foreseeable and customary risks of the * * * recreational activity.”
Ohio has a test to determine if the risks encountered by the plaintiff were inherent in the sport.
The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires: (1) the danger is ordinary to the game; (2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the danger during the course of the game. “The nature of the sporting activity is highly relevant in defining the duty of care owed by a particular defendant: what constitutes an unreasonable risk, under the circumstances, of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participant’s idea of foreseeable conduct in the course of the game.”
The court must determine for each sport, game, or activity if the injury was a risk of the sport. An example would be badminton. There is probably a risk of being hit by a badminton racquet in the sport, but there is no risk of being injured by being tackled by an opposing badminton player. Football would be just the opposite. A football player assumes the risk of being tackled; however, nothing in the rules or the sport would allow a football player to be hit by a racquet.
The next argument raised by the plaintiff was the activities that gave rise to the injuries in the complaint were not inherent in the sport. The injuries were incurred because of excessive conditioning, which was to punish the participants and their mothers.
The court did not agree with the plaintiff’s arguments.
We first note that not every violation of a sport’s rules meets the negligence standard, and the focus for what constitutes an unreasonable risk of harm under the circumstances involves the examination of both the “rules and customs” associated with the sport that shape the participants’ ideas of foreseeable conduct.
Additionally, none of the testimony or proof offered by the plaintiff supported this argument.
The fact that appellants submitted an expert affidavit opining that appellees engaged in violations of the Safe Sport Policy and that their conduct is “not inherent” in gymnastics activities does not create a genuine issue of material fact in this case.
Since the affidavits were found to be “inconsistent” with the deposition testimony, the affidavits did not prove the injuries caused by excessive training were not inherent to the sport. This means the depositions are given more weight because they are taken under oath and the questions are asked by opposing counsel. Affidavits are sworn statements prepared by the party presenting them and not questioned by opposing counsel.
The appellate court then looked to the defense of express assumption of the risk. The plaintiffs argued the releases, the express assumption of the risk documents, only covered inherent risks of the sport and did not identify the actual risks causing the injuries to the plaintiffs.
Appellants argue the trial court committed error in applying the express assumption of the risk doctrine to bar their claims because the release the parents signed only covers “inherent” risks, and the risks in this case are not inherent to gymnastics; further, that the release failed to identify the precise activity which resulted in injury.
Each appellant-mother signed a document entitled “Release, Indemnification, and Hold Harmless Agreement” (“Release”) prior to any of the incidents alleged in the complaint. Each appellant-mother in this case admitted in their deposition to signing the Release when registering their appellant-daughter for gymnastics at Diva.
A release is a separate defense to primary assumption of the risk. However, a well-written release can also be used to prove primary assumption of the risk. A release must have the legal language or wording needed to meet the requirements in most states of making sure the person signing the release knows and understands they are giving up their right to sue for their injuries. An assumption of the risk document is an acceptance of the risks identified in the document or easily identified by the signor based on education, experience, and knowledge. Consequently, a release can be both a release and an express assumption of the risk.
Ohio allows a parent to sign a release on behalf of a minor, waiving the minor’s right to sue as well as the parents.
Express assumption of the risk is a separate and independent bar to recovery from the doctrine of primary assumption of the risk.
Valid exculpatory clauses or releases constitute express assumption of risk, and is the same as waiving the right to recover. A participant in a recreational activity is free to contract with the proprietor of such activity to relieve the proprietor of responsibility for damages or injuries to the participant caused by negligence, except when it is caused by wanton or willful misconduct. Appellants do not allege wanton or willful misconduct in this case. Parents have the authority to bind their minor children to exculpatory agreements in favor of sponsors of sports activities where the cause of action sounds in negligence.
The court then reviewed the requirements under Ohio’s law for the release to be enforceable. These requirements are the same as most other states.
For express assumption of the risk to operate as a bar to recovery, the party waiving his or her right to recover must make a conscious choice to accept the consequences of the other party’s negligence. The waiver must be clear and unequivocal. Releases from liability are narrowly construed; however, courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.
Then the court explained how the release signed by the parents met the requirements under Ohio’s law.
In this case, the Release clearly specified the kind of liability released, as the Release contains the word “negligence” multiple times. It also clearly specifies the persons and/or entities being released (Diva, its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them). The language contained in the Release is sufficiently clear and unambiguous such that the express assumption of the risk defense bars recovery.
What is interesting is there is very little discussion in Ohio anymore about whether the release signed by a parent stops a minor from suing.
The plaintiffs then tried to argue that because the word “conditioning” was not in the release, the release should fail for not identifying the risk causing the injury to the youth.
Appellants contend since the word “conditioning” does not appear in the Release, their claims are not barred. However, appellants expressly assumed the risk for “gymnastics, tumbling, cheering, high bars, low bars, beam training, activities, exhibitions, demos and open gym.” Further, the language in the Release states that “risks include, but are not limited to,” the list above. In the second paragraph of the Release, appellants expressly “assume[d] all of the risk inherent in this activity.” By signing the Release, appellants acknowledged gymnastics involves “known and unanticipated risks which could result in physical or emotional injury.”
However, Ohio, like most other states does not need a release to be a specific list of the possible ways someone can get hurt engaging in a sport or recreational activity. That list would make releases thousands of pages long. The release must just identify the fact that there is a risk.
The plaintiffs then argued that the release did not identify the risk of “excessive conditioning” which is not inherent in the sport of gymnastics.
Appellants additionally argue they did not expressly assume liability because the risks suffered by appellants during “excessive conditioning” are not inherent risks within the sport of gymnastics. As noted above, the Release specifically includes “known and unanticipated risks,” including risks that “could result in physical or emotional injury.” Further, as detailed above, the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training.
Not only did the court find that language was not necessary in the release, the court found came back to the point that earlier the plaintiff had not proven there was excessive conditioning.
We find the language contained in the Release is sufficiently clear and unambiguous. Appellants expressly assumed the risks they describe in their depositions. Accordingly, the express assumption of the risk defense is a separate and independent bar to recovery in this case.
The final issue was the trial court found the plaintiffs did not prove they had suffered any injury.
As an alternative and independent basis for granting summary judgment, the trial court found appellants could not meet the third part of the negligence test, i.e., that appellants suffered an injury proximately caused by appellees’ breach of duty.
The affidavits in support of the cross motions probably did not make the trial court or the appellate court happy when they were so contradictory to the depositions. So, it was easy to rule the plaintiffs did not make their case when they could not prove the actions taken were outside of the normal actions of a gymnastic gym or the fact the youth suffered no injury.
So Now What?
Usually, once an appellate court finds one way to support the trial court’s decision, it ignores the other arguments made by an appellant or appellee. When the appellate court reviews all the issues, it means the legal issues were not properly identified or applied below or the facts of the case are such that the appellant court wants to eliminate any additional attempts to make baseless arguments again.
The court showed how not every possible risk must be in a release. However, the more risk identified in a release, the greater the chance the release can be used as an express assumption of the risk document to stop a lawsuit if the release is found to be void.
For other cases on Ohio law.
Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.
Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
For other case law on a parent’s right to sign away a minor’s right to sue see:
States that allow a parent to sign away a minor’s right to sue
Adult volunteer responsibility ends when the minor is delivered back to his parents.
An example of adults and money getting in the way of kids has fun
As long as there are laws, there will be people trying to get around them.
BSA Summer Camp was able to have punitive damages claim dismissed prior to trial
Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims? Maybe, but only by omission, not by intent I believe. http://rec-law.us/2qTjjBw
Iowa does not allow a parent to sign away a minor’s right to sue.
Is being overprotective putting our kids at risk
New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue. http://rec-law.us/2r7ls9l
North Dakota decision allows a parent to sign away a minor’s right to sue.
Paranoia can only get you so far, and then you get into the absurd.
The Boy Scouts of America are not liable because they owed no duty, they did not own the camp
This article takes a real look at the risks parents allow their children to face
You’ve got to be kidding: Chaperone liable for the death of girl on a trip
What do you think? Leave a comment.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, 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 manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Outdoor Recreation Insurance, Risk Management and Law
Author: Outdoor Recreation Insurance, Risk Management and Law
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Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
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Samolyk v. Berthe (N.J. 2022)
Posted: April 24, 2023 Filed under: Assumption of the Risk, New Jersey, Search and Rescue (SAR), Uncategorized | Tags: New Jersey, New Jersey Supreme Court, Person in Peril, Rescue, Rescue Doctrine, Supreme Court Leave a commentAnn Samolyk and John Samolyk, Plaintiffs-Appellants,
v.
Dorothy Berthe, III, Defendant,
and Ilona Destefanis and Robert Destefanis, Defendants-Respondents.
No. A-16-21
Supreme Court of New Jersey
June 13, 2022
Argued February 1, 2022
On certification to the Superior Court, Appellate Division.
William D. Wright argued the cause for appellants (The Wright Law Firm, attorneys; William D. Wright and David T. Wright, on the briefs).
John Burke argued the cause for respondents (Burke & Potenza, attorneys; John Burke, of counsel and on the brief).
FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog.
Plaintiff Ann Samolyk sustained neurological and cognitive injuries when she entered a lagoon in Forked River to rescue her neighbors’ dog, which had fallen or jumped into the water. Samolyk’s husband filed a civil action against defendants, alleging they were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the water, prompting Samolyk to attempt to save the dog.
Neither the Law Division nor the Appellate Division found the doctrine applicable. The Court granted certification. 248 N.J. 518 (2021).
HELD: After reviewing the noble principles that infuse the public policy underpinning this cause of action, the Court declines to consider property, in whatever form, to be equally entitled to the unique value and protection bestowed on a human life. The Court nevertheless expands the rescue doctrine to include acts that appear to be intended to protect property but are in fact reasonable measures ultimately intended to protect a human life.
1. Under the rescue doctrine, “[t]he state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.” Wagner v. Int’l Ry. Co., 133 N.E. 437, 437-38 (N.Y. 1921). The doctrine has also been held to provide a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril. Thus, an actor is liable for harm sustained by a rescuer where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so. The Restatement (Second) of Torts and a majority of states have extended the rescue doctrine to efforts to save property. (pp. 6-11)
2. The Court declines to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life. The risk protected by the rescue doctrine is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable. (p. 12)
3. The Court explains that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. By contrast, the uncontested evidence here shows that Samolyk’s actions were based solely on her perception of danger to the dog’s life. The complaint was properly dismissed because the decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine. (pp. 13-14)
AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.
OPINION
FUENTES JUDGE (temporarily assigned).
This appeal requires this Court to determine whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog. After reviewing the noble principles that infuse the public policy underpinning this cause of action, we decline to consider property, in whatever form, to be equally entitled to the unique value and protection we bestow on a human life. We nevertheless expand the cognizable scope of the rescue doctrine to include acts that facially appear to be intended to protect property, but are in fact reasonable measures ultimately intended to protect a human life.
I.
This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann’s[1] husband, John Samolyk, filed a civil action against defendants, as Ann’s guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse’s services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.
The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.[2] A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.
After joinder of issue and the parties’ answers to interrogatories, as well as production of relevant documentary evidence, but before the parties took depositions, the Law Division judge assigned to manage the case directed the parties to file dispositive motions addressing whether plaintiffs raised a cognizable claim under the rescue doctrine.
Plaintiffs’ counsel argued that defendants “invited the rescue because the dog was in peril, . . . [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog.” In rebuttal, defense counsel noted that no court in this State had extended the rescue doctrine to apply to the protection of property. The Law Division judge agreed with defendants’ position. The judge noted he was not empowered “to start defining what level of property is worth risking a human life.”
The Appellate Division reached the same conclusion in an unpublished opinion, noting that “no reported case from any New Jersey court has applied the rescue doctrine to support a cause of action brought by the rescuer of real or personal property against a defendant who, through his negligence, placed the property in peril.”
The Appellate Division’s thoughtful opinion recognized, however, that the Restatement (Second) of Torts § 472 (Am. Law Inst. 1965) has extended the rescue doctrine to the protection of property. Plaintiffs also relied on caselaw from our sister states tracking the Restatement’s approach. Although the Appellate Division found that “[s]ome of that authority is persuasive and raises a legitimate question [as to] why the rescue doctrine should be limited to the rescue of another human being,” it nevertheless declined to expand the scope of this common law doctrine in deference to its role as an intermediate appellate court.
This Court granted plaintiffs’ petition for certification to determine whether the rescue doctrine extends to property, specifically here, a dog. 248 N.J. 518 (2021).
II.
The parties rely on the arguments they made before the Appellate Division. Plaintiffs urge this Court to rely on the Restatement, as the majority of our sister states have done, and extend the rescue doctrine to protect property. In response, defendants argue it is unclear whether a majority of states have extended the doctrine to protect property, and they emphasize that New Jersey courts have consistently applied the rescue doctrine to encourage voluntary exposure to danger only to protect human life.
III.
A.
This Court reviews the grant of a motion for summary judgment de novo, applying the same standard used by the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019). We must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). The issue before us concerns the development of our state’s common law, a responsibility exclusively entrusted to this Court. See DCPP v. J.R.-R., 248 N.J. 353, 373 (2021).
B.
The rescue doctrine is best described by quoting the words of Justice Benjamin N. Cardozo, then Judge of the New York Court of Appeals, in Wagner v. International Railway Co.:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.
[133 N.E. 437, 437-38 (N.Y. 1921).]
The rescue doctrine established in Wagner was originally limited to situations “where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid.” See Provenzo v. Sam, 244 N.E.2d 26, 28 (N.Y. 1968). New York courts later expanded the rescue doctrine “to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue.” Ibid.
The rescue doctrine “has long been a part of our State’s social fabric.” Saltsman v. Corazo, 317 N.J.Super. 237, 248 (App. Div. 1998) (quoting Burns
v. Mkt. Transition Facility, 281 N.J.Super. 304, 310 (App. Div. 1995)). The doctrine has been applied “to situations where the rescuer . . . sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue.” Id. at 249. The Appellate Division has consistently applied the doctrine to cases where the rescuer is injured when trying to rescue another person. See id. at 247; Blackburn v. Broad St. Baptist Church, 305 N.J.Super. 541, 544-46 (App. Div. 1997); Tornatore v. Selective Ins. Co. of
Am., 302 N.J.Super. 244, 252 (App. Div. 1997). The first time this Court directly considered the rescue doctrine was in Ruiz v. Mero, a case in which we affirmed the Appellate Division’s opinion, which held that the Legislature abrogated the “firefighters’ rule”[3] when it adopted N.J.S.A. 2A:62A-21. 189 N.J. 525, 527 (2007). In Ruiz, a unanimous Court upheld the right of a police officer to rely on the rescue doctrine to sue “a commercial landowner for injuries he suffered when quelling a disturbance at the owner’s bar.” Ibid. In the course of explaining the statute’s unambiguous conflict with the firefighters’ rule, Justice Long noted the rescue doctrine was “[d]eeply rooted” in our state’s common law and “provides a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril.” Id. at 528-29.
In Estate of Desir v. Vertus, we reviewed the applicability of the rescue doctrine in the context of a “tragic shooting death of an individual by a criminal fleeing from a business.” 214 N.J. 303, 308 (2013). The estate of the victim filed a civil action against the defendant based in part on the rescue doctrine. Ibid. We held the defendant did not negligently create the danger that caused the decedent to come to his aid because the
evolution of the rescue doctrine remains grounded upon essential tort concepts of duty and foreseeability. As the doctrine has been explained, an actor is liable for harm sustained by a rescuer “where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so.”
[Id at 321 (quoting Restatement (Second) of Torts § 445 cmt. d).]
Those cases illustrate that, as the guardians of our state’s common law, this Court has limited the application of the rescue doctrine to reflect the sound public policy Justice Cardozo eloquently described in Wagner.
C.
In this appeal, we are asked to expand the scope of the rescue doctrine to include those who voluntarily choose to expose themselves to significant danger in an effort to safeguard the property of another. We decline to modify the rescue doctrine to incorporate such a far-reaching departure from the fundamental principles embedded in Wagner.
We acknowledge that the Restatement (Second) of Torts extends the rescue doctrine to property and provides that
[i]t is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.
[§ 472 (emphasis added).]
See also Prosser & Keeton on Torts, § 44 (5th ed. 1984) (explaining that, “[a]lthough there has been some disagreement, the great majority of courts now apply the [rescue doctrine] to one who tries to rescue the property of another, even when under no duty to do so, and even though the property involved is that of the defendant”).
The Second Restatement, however, acknowledges that “a plaintiff may run a greater risk to his own personal safety in a reasonable effort to save the life of a third person than he could run in order to save the animate or inanimate chattels of his neighbor or even of himself.” § 472 cmt. a. Furthermore, the Restatement (Third) of Torts: Liability for Physical and Emotional Harm includes the extension to property, noting: “This Section is also applicable to a rescuer of imperiled property, whether that property is owned by another or by the rescuer.” § 32, cmt. b (Am. Law Inst. 2010).
A majority of our sister states that have extended the rescue doctrine to cover property have done so in accord with the Restatement (Second) of Torts. See, e.g., Estate of Newton v. McNew, 698 P.2d 835, 837 (Colo.App. 1984) (holding that the doctrine is applicable to property after finding that a “majority of states apply” the doctrine to “one who tries to rescue the property of another”); Neff v. Woodmen of the World Life Ins. Soc’y, 529 P.2d 294, 296 (N.M. Ct. App. 1974) (finding the doctrine applicable to property and noting that “[t]he majority of courts . . . have extended [the doctrine] to include situations where property is in danger of being severely damaged or destroyed”); Henjum v. Bok, 110 N.W.2d 461, 463 (Minn. 1961) (holding that the doctrine is applicable “where an attempt is being made to save human life or property”).
Other jurisdictions have declined to expand the rescue doctrine to include the protection of property. For example, the Missouri Eastern District Court of Appeals held in Welch v. Hesston Corp. that, “[u]nlike a majority of other jurisdictions,” it has consistently declined to extend the rescue doctrine to include the protection of property. 540 S.W.2d 127, 129 (Mo.Ct.App. 1976). The court explained that
[t]he policy basis of the distinction in treatment of rescuers of persons and rescuers of property seems “to rest upon that high regard in which the law holds human life and limb; whereas, when mere property is involved, one may not voluntarily subject another to greater liability than that which he seeks to avert.”
[Id. at 129-30 (quoting Tayer v. York Ice Mach. Corp., 119 S.W.2d 240, 246 (Mo. 1937)).]
IV.
Against this analytical backdrop, we decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. We are convinced that any attempt to reform the application of the rescue doctrine to include the protection of property, whether animate or inanimate, realty or chattel, must emanate from our innate instinct to protect human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life.
The words uttered by Justice Cardozo describe the contours of a cause of action that tolerates a concomitant degree of harm a plaintiff is reasonably willing to risk and, if necessary, endure to protect a human life. The risk factor is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable.
We are also aware, however, that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. For example, consider a neighbor who reports a fire in a nearby house to the proper authorities, then attempts to squelch the fire based on a reasonable, good faith belief that children or other vulnerable inhabitants may be in immediate danger, or because it appears likely the fire may spread to other occupied properties. Under those circumstances, if the fire was negligently started, the neighbor may have a cognizable basis to invoke the rescue doctrine to recover damages for injuries caused by the preemptive measures taken to limit the intensity of the fire, even if it is later determined there was no actual risk to human life because the house was unoccupied.
Following that line of reasoning, plaintiffs’ cause of action would have survived a motion for summary judgment had she jumped into the canal after defendants’ dog as a simultaneous reaction to seeing a child of tender years running after the animal and quickly approaching the edge of the dock. In that hypothetical situation, Ann’s actions to protect the child from imminent danger by rescuing the dog may have been reasonable and could therefore have served as the basis for a cognizable cause of action under the rescue doctrine.
By contrast, the uncontested evidence here shows that Ann’s actions were based solely on her perception of danger to the dog’s life. These nuanced distinctions are intended to acknowledge and reaffirm the public policy underpinning the rescue doctrine in our state, to wit, the protection of human life. Thus, plaintiffs’ complaint was properly dismissed because Ann’s decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine.
V.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.
———
Notes:
[1] We refer to plaintiffs by their first names because they share the same last name. We do not intend any disrespect.
[2] Although defendants dispute this part of the facts presented to the Law Division, we will accept them as accurate for the purpose of addressing the dispositive legal issue raised by the parties.
[3] The firefighters’ rule was a common law affirmative defense absolving the owner or occupier of land of liability “to a paid fireman for negligence with respect to the creation of a fire.” Krauth v. Geller, 31 N.J. 270, 273 (1960).
———
@2023 Summit Magic Publishing, LLC
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Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)
Posted: April 17, 2023 Filed under: Minors, Youth, Children, Nebraska, Release (pre-injury contract not to sue), Sports, Uncategorized | Tags: Minor, Nebraska, Private College, Release, student athlete, Waiver Leave a comment313 Neb. 218
KONRAD SINU AND LIDIA SZURLEJ, APPELLANTS.
v.
CONCORDIA UNIVERSITY, APPELLEE.
No. S-21-959
Supreme Court of Nebraska
January 13, 2023
1.
Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
2. __:__. In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.
3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.
4. Contracts: Words and Phrases. An exculpatory clause is a contractual provision relieving a party from liability resulting from a negligent or wrongful act.
5. Contracts: Intent. Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he or she is contracting away.
6. Contracts: Words and Phrases. An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.
7. Contracts: Negligence: Liability: Intent. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.
8. Contracts: Words and Phrases. An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.
9. Contracts: Intent. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.
10. Contracts: Public Policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.
11. __:__ . Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.
12. Contracts. An essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
14. Rules of the Supreme Court: Pleadings: Appeal and Error. When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.
15. Pleadings: Pretrial Procedure: Summary Judgment. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery.
16. __:__:__. When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment.
17. Pleadings: Evidence: Summary Judgment. A proposed amendment to a pleading may be considered futile when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.
18.
Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
19. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
20. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
Appeal from the District Court for Seward County: James C. Stecker, Judge. Affirmed.
Jason G. Ausman and Michelle D. Epstein, of Ausman Law Firm, PC, L.L.O, for appellants.
David P. Kennison and Heidi A. Guttau, of Baird Holm, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and Strong, District Judge.
Cassel, J.
I. INTRODUCTION
Based upon a waiver of liability signed by a student and his mother, the district court granted a summary judgment rejecting their negligence claim against a university. The court also refused an attempt-made after the summary judgment motion was filed but before discovery closed-to amend the complaint. They appeal.
We find no error in granting summary judgment. Although the release did not mention negligence, its language was broad and clear and did not contravene public policy.
On the denial of leave to amend, we first settle the standard for assessing futility at that point. Because they had sufficient opportunity for discovery and we agree that their proposed amendments to add allegations of gross negligence would be futile, we find no abuse of discretion. We affirm.
II. BACKGROUND
We begin with a brief background. Additional facts will be incorporated, as necessary, in the analysis section.
Concordia University is a private institution in Nebraska. It recruited Konrad Sinu (the student) to play for the university’s intercollegiate men’s soccer team. The university provided the student with soccer and academic scholarships. Before the student moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because the student was 18 years old, his mother also signed the release.
Roughly 5 months after arriving at the university, the student and his soccer teammates engaged in a mandatory strength and conditioning workout at the university’s Walz Human Performance Complex (the Walz). The workout involved circuit training in which the teammates moved from one exercise station to another in small groups. One station consisted of an exercise referred to as the “face pull.” In the exercise, an elastic resistance band was secured to a squat rack post and was pulled toward the user’s face. During the course of the workout, teammates altered the band’s placement from how a university employee originally set it. When the student approached the squat rack, he observed the resistance band resting on a “I-hook” of the squat rack. As the student performed the exercise, the resistance band slid off the hook and caused injury to his eyes.
The student and his mother sued the university, setting forth a cause of action for negligence. The university asserted numerous affirmative defenses in its responsive pleading. One defense alleged that the claim was barred by the release signed by the student and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk.
Some 4 months prior to the discovery deadline, the university moved for summary judgment. Approximately 2 months later and prior to the hearing on the university’s motion, the student and his mother moved for leave to file an amended complaint. They wished to add allegations that the university’s willful and wanton or grossly negligent actions caused the student’s injuries. Following a hearing on the motion to amend, the court denied the motion.
After the discovery deadline and days before the scheduled summary judgment hearing, the student and his mother filed a renewed motion for leave to file an amended complaint. The court again denied the motion for leave, finding that any amendment would be futile.
The court held a hearing on the motion for summary judgment and received a number of exhibits. It subsequently entered summary judgment in the university’s favor and dismissed the complaint with prejudice. In doing so, the court rejected arguments that the release was unconscionable, that it did not release the university from liability for its own negligence, and that the release did not amount to an assumption of risk.
The student and his mother appealed, and we moved the case to our docket.[1]
III. ASSIGNMENTS OF ERROR
The student and his mother allege that the district court erred in (1) granting summary judgment in the university’s favor when genuine disputes remain as to material facts and the ultimate inferences that a jury may draw from those facts and (2) denying their motion for leave to file an amended complaint when the proposed amended complaint stated a claim for which relief could be granted.
IV. STANDARD OF REVIEW
An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.[2]
In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.[3]
An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.[4]
V. ANALYSIS
1. Summary Judgment
This case is before us following the district court’s entry of summary judgment in the university’s favor. To establish entitlement to judgment as a matter of law, the university relied on the release signed by the student and his mother. For summary judgment to be appropriate, the release must be valid and enforceable. The student and his mother argue that it was not. Before considering their challenges, we set forth the language of the release and discuss exculpatory and indemnity clauses.
(a) Additional Facts
The entire release appeared on one side of a single page. The title, “Assumption of Risk and Waiver of Liability Release,” was displayed in large, boldface type. It then stated:
PLEASE READ THE FOLLOWING CAREFULLY.
If you have any questions or concerns, please visit with an attorney before signing this document. This release must be signed before participation in activities at [the university] is allowed.
I acknowledge that my participation in certain activities including, but not limited to, intercollegiate athletics intramural sports, use of [the Walz], P.E. Center, [university stadium field/track, adjacent [u]niversity athletic fields and the City of Seward’s Plum Creek Park may be hazardous, that my presence and participation are solely at my own risk, and that I assume full responsibility for any resulting injuries, damages, or death.
In consideration of being allowed to participate in such activities and/or being provided access and the opportunity to use the Walz and other [u]niversity facilities and equipment, and in full recognition and appreciation of the danger and risks inherent in such physical activity, I do hereby waive, release and forever discharge the [university, its officers, directors, agents, employees and representatives, from and against any and all claims, demands, injuries, actions or causes of action, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.
I further agree to indemnify and hold the [university, its officers, directors, agents, employees and representatives harmless from any loss, liability, damage or costs including court costs and attorney’s fees incurred as a result of my presence at or participation in any such activities. I also understand that this [release] binds me, my personal representatives, estate, heirs, next of kin and assigns.
I have read the [release] and fully understand it and agree to be legally bound by it. Beneath a line for the student’s signature, the release contained the following section, with boldface type as it appeared on the document:
If 18 years of age or younger, signature of parent/ guardian is also required.
I, as the parent or guardian of the above-named minor, have read the [release], fully understand it, and hereby voluntarily agree and execute the [release] on behalf of myself as well as the above-named minor and agree that the minor and I are legally bound by it.
Below this section appeared a line for the parent’s or guardian’s signature.
(b) Discussion
(i) Exculpatory and Indemnity Clauses
The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.”[5] Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.[6]
The release also contained an indemnity clause, but that clause has not been a focal point of the litigation. We do not express any opinion regarding the validity of the indemnity clause contained in the release. However, we briefly discuss indemnity clauses in general in order to distinguish them from exculpatory clauses.
An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.”[7] Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .”[8] In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause.[9]But “an indemnity provision generally does not apply to claims between the parties to an agreement. . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”[10]
Both exculpatory and indemnity clauses must make clear the effect of the agreement. And such a clause is strictly construed against the party claiming its benefit.[11] “Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away”[12] Similarly, “[a]n agreement which purports to indemnify the party who prepared it from liability for that party’s own negligence . . . must be clear, explicit and comprehensible in each of its essential details [and] must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.”[13] With this understanding in place, we turn to the student and his mother’s attacks on the release.
(ii) Clear Language
The student and his mother argue that the release did not contain express or clear and unequivocal language that the parties intended to release the university from its own negligence. They are correct that the release does not use words such as “negligence” or “fault.” But that does not end the inquiry.
An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.[14] The provision must be looked at as a whole and given a reasonable construction.[15] If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.[16] Here, the intended effect was clear.
Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)
Although the document does not mention negligence, it is apparent that releasing the university from its own negligence was the document’s intended consequence. As is evident from the definition of an exculpatory clause set forth above, relieving a party from its own negligence is the very purpose of an exculpatory clause. The language of the release clearly demonstrates an intent to eliminate the university’s liability, particularly when protecting the university from negligence claims is the only reasonable construction.[17]
In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence.[18]In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.[19]
But we are not addressing an indemnity clause here. As set forth above, an exculpatory clause such as a release is not synonymous with an indemnity clause. Because indemnity clauses shift liability and may involve third parties, it is important to specify whose negligence is being covered. But here, an obvious purpose of the release was to exempt the university from its own negligence.
(Hi) Ambiguity
For the same reason expressed above, we reject the student and his mother’s claim that the release did not unambiguously notify them that they were releasing the university from its own negligence. While the release’s language may not have explicitly used the word “negligence” or referenced the university’s conduct, it was not ambiguous.
An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.[20] A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.[21]
The release placed no liability on the university for any injury suffered by the student. The language plainly stated that the student released the university “from and against any and all claims, demands, injuries, actions or causes of actions, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.” This language covers “any” claim for ordinary negligence, which includes any claim caused by the university’s ordinary negligence. We see no ambiguity.
(iv) Unconscionable and Against Public Policy
Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy. The student and his mother advance several reasons why they believe the release was unconscionable and void as against public policy. Those reasons lack merit.
To begin, courts are disinclined to find a contractual agreement void as against public policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.[22] Stated differently, the power of courts to invalidate contracts for being in contravention of public policy is a very delicate and undefined power which should be exercised only in cases free from doubt.[23]
Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.[24]Public policy prevents a party from limiting its damages for gross negligence or willful and wanton misconduct.[25] It is important to note at this juncture that the student and his mother’s claim is limited to ordinary negligence. We need not address the release’s enforceability if the student and his mother had alleged gross negligence.
We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.[26] Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.[27]
There was no disparity in bargaining power. The student emphasizes that he was an 18-year-old minor living on a different continent and believed he had to sign the release in order to attend the university. He highlights that the second sentence of the release stated it “must be signed before participation in activities at [the university] is allowed.” But the first sentence of the release informed the student to speak with an attorney before signing the document if he had any concerns. The student had a reasonable opportunity to understand the terms of the contract. And because the student was a minor, his mother also had to agree to the terms and sign the release. The fact that the student was given the release to sign a month prior to moving to Nebraska militates against his compulsion argument. He could have gone elsewhere to play soccer and attend college.
Further, the services offered by the university were not a public or essential service. The university is a private school, and the release related to a recreational activity. “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. Indeed, plaintiff’s ordinary negligence claims may generally be barred where she or he voluntarily executes exculpatory contract in order to participate in recreational or nonessential activities.”[28] We conclude the release was not void as against public policy.
Because the release was valid, it barred the student and his mother’s negligence claim against the university. We conclude the district court properly entered summary judgment in the university’s favor.
(c) Assumption of Risk
The student and his mother additionally argue that the student did not assume the risk of the danger he confronted. But because the release barred the student’s claim, we need not also address whether the student assumed the risk of his injury. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.[29]
2. Leave to Amend
The student and his mother twice sought leave to amend their complaint to include allegations of gross negligence and willful and wanton misconduct. The court denied both requests. In considering whether the court abused its discretion in doing so, we set forth the relevant procedural timeline and determine the standard of review applicable under the circumstances.
(a) Additional Facts
The following timeline provides helpful context in considering the timing of the motions for leave to amend:
• 06/26/2019: complaint filed
• 08/14/2019: answer filed
• 11/02/2020: discovery deadline extended to 06/04/2021
• 11/02/2020: depositions of three university employees taken
• 11/19/2020: depositions of the student and his mother taken
• 12/02/2020: deposition of university employee taken
• 01/28/2021: motion for summary judgment filed
• 03/25/2021: motion for leave to file amended complaint
• 04/05/2021: court denied motion for leave
-allowed 45 days for disclosure of expert witness
-extended discovery deadline to 08/01/2021
-continued summary judgment hearing to 08/16/2021
• 05/19/2021: student’s expert witness disclosed
• 08/11/2021: renewed motion for leave to file amended complaint
(b) Discussion
When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.[30] As the timeline demonstrates, the student and his mother first sought leave to amend after the university filed its motion for summary judgment but before discovery closed. They filed a renewed request for leave to amend after the discovery deadline.
Our case law has discussed the situation where leave is sought before discovery is complete and before a motion for summary judgment is filed. If leave to amend is sought before discovery is complete and before a motion for summary judgment has been filed, the question of whether such amendment would be futile is judged by reference to Neb. Ct. R. Pldg. § 6-1112(b)(6).[31] Leave to amend in such circumstances should be denied as futile only if the proposed amendment cannot withstand a motion to dismiss under § 6-1112(b)(6).[32]
Our case law has also addressed the situation where leave is sought after discovery is closed and after a motion for summary judgment has been filed. After discovery is closed and a motion for summary judgment has been filed, the appropriate standard for assessing whether a motion to amend should be determined futile is that the proposed amendment must be not only theoretically viable but also solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.[33]
Our case law has not directly addressed the situation here. The student and his mother sought leave to amend the complaint before the close of discovery but after the university filed a motion for summary judgment.
A commentator has proposed a standard to evaluate futility in such a situation. The commentator suggests that the standard used “should depend on whether the plaintiff can establish that it needs to engage [i]n discovery on the new matter alleged in the amendment.”[34] The commentator explains:
A plaintiff who seeks leave to amend but who lacks sufficient evidence to withstand a motion for summary judgment directed at the new matter should file an affidavit explaining why it needs additional discovery to develop a sufficient evidentiary basis for the new matter. If [the] court finds the explanation sufficient, then the court should evaluate the futility of the amendment by applying the standard for [a] motion to dismiss for failure to state a claim. If the court finds the explanation insufficient, then the court should apply the standard for summary judgment.[35]
We agree with the commentator’s view. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery. Here, there was.
The student and his mother had engaged in substantial discovery to develop their case. At the time of their initial motion for leave, they had taken the depositions of six individuals. They had requested additional time to disclose expert opinions regarding the university’s alleged negligence and had disclosed their expert witness prior to renewing their motion for leave.
When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment. In determining whether the proposed amendment was futile, the standard is whether the proposed amendment is both theoretically viable and solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.[36] Stated differently, the proposed amendment may be considered futile “when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.”[37]
With the appropriate standard in place, we review the district court’s determination for an abuse of discretion. Addressing the renewed motion for leave, the court stated that the facts would not support a finding of gross negligence and that any amendment would be futile. We agree.
The student and his mother wished to amend the complaint to allege the university’s “negligence, recklessness, willful and wanton, and/or grossly negligent actions” caused the student’s injury and damages. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.[38] Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.[39] The issue of gross negligence is susceptible to resolution in a motion for summary judgment.[40]
The allegations in the proposed amended complaint do not rise to the level of gross negligence. The proposed complaint would allege, among other things, that the university was negligent in allowing the student athletes to pull the resistance band toward their faces and in failing to inform the student that other student athletes could modify the placement of the bands during the workout. At best, these allegations would implicate ordinary negligence. Because the proposed amendments would have been futile, we conclude the district court did not abuse its discretion in overruling the motions for leave to file an amended complaint.
VI. CONCLUSION
We conclude that the district court properly entered summary judgment in the university’s favor, because the release signed by the student and his mother was valid and enforceable and relieved the university of liability for its ordinary negligence. And because the proposed amendments to the complaint would have been futile, the district court did not abuse its discretion in overruling the student and his mother’s motions for leave to amend. We affirm the judgment.
Affirmed.
Miller-Lerman, J., not participating.
19
———
Notes:
[1] See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
[2]
Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 (2022).
[4]
Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021).
[5] Black’s Law Dictionary 712 (11th ed. 2019).
[6] See 57A Am. Jur. 2d Negligence § 41 (2022).
[7] Black’s Law Dictionary 919 (11th ed. 2019).
[8] 57A Am. Jur. 2d, supra note 6, § 43 at 86.
[10]
Ganske v. Spence, 129 S.W.3d 701, 708 (Tex. App. 2004).
[11]See, Annot, 175 A.L.R. 8, § 8 (1948); 57AAm. Jur. 2d, supra note 6; 17A C.J.S. Contracts § 448 (2020). See, also, Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).
[12] 57A Am. Jur. 2d, supra note 6, § 46 at 91.
[14] See Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).
[15] See Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
[16]
Dion v. City of Omaha, supra note 11.
[17] See 57A Am. Jur. 2d, supra note 6, § 49.
[18]
Dion v. City of Omaha, supra note 11, 311 Neb. at 556, 973 N.W.2d at 690.
[19]
Anderson v. Nashua Corp., 251 Neb. 833, 840, 560 N.W.2d 446, 450 (1997).
[20]See Community First Bank v. First Central Bank McCook, 310 Neb. 839. 969 N.W.2d 661 (2022).
[21]New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25 (1994).
[22]SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
[23]Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).
[24]New Light Co. v. Wells Fargo Alarm Servs., supra note 21.
[26]Myers v. Nebraska Invest. Council, supra note 23.
[27]Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982).
[28] 57A Am. Jur. 2d, supra note 6, § 62 at 112.
[29]
Schreiber Bros. Hog Co. v. Schreiber, 312 Neb. 707, 980 N.W.2d 890 (2022).
[30]
McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021).
[31]
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
[34] John P. Lenich, Nebraska Civil Procedure § 15:4 at 723 (2022).
[36] See Estermann v. Bose, supra note 31.
[37]
Bailey v. First Nat. Bank of Chadron, 16 Neb.App. 153, 169, 741 N.W.2d 184, 197 (2007).
[38]
Palmer v. Lakeside Wellness Ctr., 281 Neb. 780, 798 N.W.2d 845 (2011).
———
@2023 Summit Magic Publishing, LLC
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CURRICULUM VITAE
Posted: December 11, 2021 Filed under: Uncategorized | Tags: CURRICULUM VITAE, Curriculum Vitae (CV), CV, James H. Moss, Jim Moss Leave a commentJAMES H. MOSS
CURRICULUM VITAE
720 334 8529
POST COLLEGE EDUCATION AND DEVELOPMENT.. 4
MEMBERSHIPS & PROFESSIONAL AFFILIATIONS: 17
PROFESSIONAL HISTORY
Present: Private practice specializing in business law and litigation: Represented clients in business law, contracts, business formation, real estate, landlord/tenant, and estate planning. Experienced trial attorney, from traffic to complex commercial litigation. Clients range from individuals to large corporations, located throughout Colorado and the United States. Worked with start-up companies and represented several high-risk recreational businesses, providing them with advice and research to prevent litigation. Worked for and have developed legal defense programs for several insurance companies.
Specialization in outdoor recreation law: Represented a wide variety of outdoor industry trade associations, organizations and companies including manufacturers and universities. Developed a national reputation for outdoor recreation litigation, contracts and defense programs. Trial assets are ability to communicate and relate to the jury and to cross-examine witness.
Fifteen Years: Instructor Ski Area Operations, Risk Management. Colorado Mountain College, Leadville, CO. Author SAO Risk Management on line curriculum. Colorado Mountain College, Leadville, CO. Author Ski Area Operations, Risk Management on line course (http://www.coloradomtn.edu/programs/sao/field.shtml)
Present: Author – www.recreation-law.com: Author of a weekly blog on the issues in the outdoor recreation community.
Consultant Risk Management and Disaster Planning. Work with business to identify source of lawsuits and eliminate those sources. Consult on all forms of litigation, risk management, disaster planning.
Seven Years: Editor the Outdoor Recreation & Fitness Law Review. The Law Review is an online publication informing lawyers and business of changes in the law of outdoor recreation, fitness and outdoor education. (www.snewsnet.com/lawreview)
2006: Developer the Parks Recreation and Tourism Program, University of Utah, PRT Risk Management Insurance & Law
2002 Small Business Risk Management Seminars:
Conducted two- and three-day risk management seminars for outdoor recreation businesses. Seminars provide the participant with hands-on training in how to detect risks and handle problems when they occur to prevent litigation.
Two Years: Risk Manager, Copper Mountain Resort Claims Management, Worker’s Compensation, and Training program. Reduced General Liability Claims costs from the three-year average Ninety (90%) percent. Received thank you notes from injured guests and family members of fatalities. Eliminated all lawsuits by injured guests. Converted Risk Management into a customer service department. Empowered Ski Patrol and Guest Service employees to solve problems to reduce claims. Reduced Worker’s Compensation costs by 67% and reduced claims by 20%. Wrote the weekly newsletter for Intrawest (Parent Corporation) for risk management personnel.
Three Years Publisher, Outdoor Recreation Newsletter: Created and publish a monthly electronic newsletter exploring various aspects of risk management, liability, and legal issues affecting the outdoor recreation, travel and hospitality industry.
Prior Experience: Attorney, Nationwide Financial Services, Mutual Fund Co. Developed and managed the training 3,000 agents in securities, tax law, and sales. Developed a multi-media training program explaining IRS and SEC regulations on the sale of securities. This three-day seminar was culminated a two-year series of training programs tying the entire program together. Developed marketing and advertising plans for agent promotions. Coordinated sales, marketing, and legal functions with other departments within the company. Also coordinated mutual fund programs with other companies within Nationwide.
Attorney, Nationwide Life Insurance Co. Wrote pension plans and trained agents and stockbrokers in pension law. Provided in-house and on-site sales support for mutual funds, tax-sheltered annuities, life insurance products, and other financial instruments. Assisted in the development of “BEST of AMERICA,” the first tax sheltered annuity to wrap public mutual funds. Trained the brokerage community in the sales of tax-sheltered annuities of Nationwide Life Insurance Company.
Rock climbing instructor and Money Management Instructor, Ohio State University Creative Arts Program. Taught 2,000 students rock climbing skills. Courses ranged from a 10-week experience, to a one-day program for youth groups. Developed a new teaching technique for rock climbing teaching 25 students to climb at one time.
The Money Management program was directed at professional students entering the work force for the first time. The class concentrated on investments, but started with checking accounts and ended with retirement.
Mediator, Columbus City Attorney’s office, night prosecutor’s program. Mediated disputes between citizens of Columbus, OH. The program was instituted to relieve the courts and police of handling domestic and non-arrest incidents and to provide a forum of civilian disputes.
Nationwide Insurance – Self-employed multi-line insurance agent. Held SEC series 6, life/health and property/casualty insurance license
Boy Scouts of America District Executive. Responsible for year-round program, adult and youth leader training, fund raising, and recruitment of youth and adults. Developed youth programs in character building, leadership and outdoor recreation. Provided training to adults working with youth and outdoor skills to youth.
EDUCATION
J.D., Capital University Law
B.S., Ohio State University
POST COLLEGE EDUCATION AND DEVELOPMENT
- National Executive Institute (BSA)
- National Camping School (BSA)
- National Exploring Law Enforcement Conference (BSA)
- Exploring Leader Training (BSA)
- Scoutmaster Leader Training
- Emergency Medical Technician
- Colorado Continuing Legal Education Classes (Participant & Instructor)
TRIAL EXPERIENCE
Developed a national expertise as a consultant and trial attorney specializing in recreational risk issues, encompassing several areas with primary emphases on litigation prevention. Litigated and consulted on a broad scope of issues including risk management as it relates to recreation and outdoor education, risk management and program exposure evaluation, equipment and product liability and insurance issues.
Currently represent a large segment of the whitewater rafting insurance industry, scuba insurance industry, canoe livery and outdoor recreation industry. Consulted on or successfully litigated rafting, backpacking, kayaking, snowmobiling, ropes course and rock-climbing cases.
EXPERT WITNESS
Expert witness in outdoor recreation, commercial guiding, and recreation education cases
EDITORIAL BOARDS
Sports Facilities and the Law review, Holt Hackney Publications, https://sportsfacilitieslaw.com/
Sport and Recreation Law Association Presentation Review Board, http://www.srlawebsite.com/
PUBLICATIONS – BOOKS
Risk Management and Law for Outdoor Recreation Professionals: Compiled November 1995. 400-page compendium of articles issues and reference material for individuals and businesses.
The Lawyer’s Advisor: Published September 1996. 160-page book written to provide consumers and lawyers with maxims for dealing with each other. Published by ICS Books, Merrillville, IN.
Outdoor Recreation Forms, Published September 1999, 200-page book published by the National Association of RV Parks and Campgrounds, to provide members with risk management forms for their businesses.
Outdoor Recreation, Insurance, Risk Management, and Law, Sagamore Publishing, Inc., 2015, 427 pages, Sagamore Publishing, Inc., Urbana, IL
Legal Liability and Risk Management in Adventure Tourism: Bhudak Consultants, 2002, Ross Cloutier with Daniel Garvey, Will Leverette, James Moss & Gilles Valade. I was responsible for Chapter Seven Canadian Businesses Carrying on Operations in the United States.
Boy Scout Fieldbook: 2004 Contributing Author for the Risk Management chapter, Boy Scouts of America
Outdoor Programmers Resource Guide, Risk Management, Association of Outdoor Recreation & Education, 2004
Boating the Grand Canyon: A “How To” for Private Boaters, Amazon Kindle, 2019
Management of Parks and Recreation Agencies, 4th & 5th 2016 Edition, Chapter 2: Law and Jurisdiction NRPA and Sagamore Press
Mountain Medicine & Technical Rescue 2nd Edition Chapter 13: Legal Aspects of Mountain Medicine, Carreg Limited
Works in Progress
Law for Recreation & Sport Managers, 9th Edition, Kendall Hunt Publishing Company
Protecting Yourself, Volunteer Liability
PUBLICATIONS –NEWSLETTERS
Liability Corner, Paddle Dealer Magazine. Quarterly magazine for the paddlesport’s industry, Paddlesport Publishing, Inc., Steamboat, Colorado.
Outdoor Recreation, Travel and Hospitality Law Newsletter, monthly electronic newsletter detailing changes, actions, lawsuits and results for the Outdoor Recreation, Travel and Hospitality Community.
PUBLICATIONS
In the Who’s-To-Blame Game, Be Trained in Self-Defense. Outside Business, October 1989, Taking Cover –
The Ins and Outs of Outdoor Education Cases, The Outdoor Network, fall 1990, Vol. 1 No. 7, Lawsuits: (Reprinted, January 1991 in Christian Wilderness Leaders Coalition; 1991 Newsletter National Association of Canoe Liveries and Outfitters.)
Medical Release Forms, The Outdoor Network, winter 1990, Vol. 1 No. 8,
Liability and Outdoor Equipment, The Outdoor Network, spring 1991, Vol. 1 No. 9,
Avoiding a Lawsuit, The Outdoor Network, spring 1991, Vol. 1 No. 9,
Using Industry Knowledge to Your best Advantage., The Outdoor Network, fall 1991, Vol. 3 No. 3,
Outdoor Programmer’s Resource Guide, Liability Section Outdoor Recreation Coalition of America, 1991,
Outdoor Recreation Liability in the Future and How to Prepare for that Threat Today. Proceedings: Sixth International Conference on Outdoor Recreation:
Paperwork: It Destroys Trees, Takes up Space and Maybe Necessary to Prevent Lawsuits. Proceedings: Sixth International Conference on Outdoor Recreation:
Avoiding a Lawsuit Pathways to Outdoor Communication, a publication of the New York State Outdoor Education Association, Inc., spring 1992, (Reprint of The Outdoor Network, spring 1991, Vol. 1 No. 9, Avoiding a Lawsuit)
Liabilities of Endorsers, Trade Associations, or Similar Parties Who Approve a Product in the Outdoor Recreation Industry. The Outdoor Network, spring 19921, Vol. 4 No. 1,
Whitewater Rafting Liability. The Outdoor Network, spring 1992, Vol. 4 No. 2,
Current Trends in the Use of Waivers and Releases. The Outdoor Network, fall 1992, Vol. 4 No. 4,
Are “out-of-bounds” laws out of bounds? Le Chronicle du Couloir, November 1992
Liability for Sexual Contact between Guides and Guests Proceedings: Sixth International Conference on Outdoor Recreation.
Current Trends in Outdoor Recreation Liability. Proceedings: Sixth International Conference on Outdoor Recreation
The Legal Perspective for the Outdoor Recreation Community Proceedings: Sixth International Conference on Outdoor Recreation: Certification and Accreditation.
Y’know what we do to poachers…boy? Le Chronicle du Couloir, January 1995
Product Liability of Outdoor Recreation Equipment Continuing Legal Education in Colorado, Sports Law, May 5, 1995.
Troubled Waters Outdoor Retailer, April 2000.
Outfitter Release Forms: How to Keep Them Meaningful Paddle Dealer, Liability Corner, spring 2000
A Few Words on “Standards” Paddle Dealer, Liability Corner, spring 2000
Pay Special Attention to Children Paddle Dealer, Liability Corner, summer 2000
Running a Retail Operation: Should you Rent Equipment Paddle Dealer Liability Corner, fall 2000
Special Attention Required When it comes to Children, Lawsuits, Releases and Assumption of Risk Scouter Magazine, Vol 2, Issue 1
The Basics of Negligence Paddle Dealer, Liability Corner, winter 2001
Renting Equipment Inside/Outside Magazine, spring 2003
It’s Not Money, CLE International, Recreation and Adventure Program law and Liability Conference,
A Good Contract Between Manufacturers and Independent Reps Makes for a Sound Business Marriage and a Smoother Divorce- If it comes to That. Gear Trends Magazine, summer 2004,
How to Reduce Injuries on the job; Put down the pencil, get off your chair, and get out of your office, Lorman Education Services, CLE Program, Worker’s Compensation:
Assumption of the Risk, Mountain Bulletin, a Publication of the American Mountain Guide Association, Vol. XVIII, No. 3, Summer 2004
Legal Watch: Prescriptions and the Law, Wilderness Medicine, the Journal of the Wilderness Medical Society, Fall 2007 (http://www.wms.org/pubs/WMSFall2007_MagazineFINAL_lowres.pdf)
Storm Over Everest, Frontline High-Altitude Ethics Roundtable, May, 2008, www.frontline.org/everest/etc/roundtable.html
California Supreme Court Limits Good Samaritan Protection, Wilderness Medicine, the Journal of the Wilderness Medical Society, Summer 2009
Lawsuits, Recreation Management, February, 2010
When we try to prevent accidents…are we creating them, Outward Bound International Journal, 2013, (Reprint http://recreation-law.com/2012/07/18/when-we-try-and-prevent-accidentsare-creating-them)
National Bicycle Dealers Association, Recalls Call for Retailer Action, http://rec-law.us/1FHAhA6
Protecting Your Bike Shop and Yourself When Hosting Events, Marsh & McLennan Agency, http://rec-law.us/1zAPdu5
Federal Court Dismisses Claims by BMX Rider for More Money from Sponsor, Sports Litigation Alert, Vol 12, Issue 17, http://www.sportslitigationalert.com/
Can You Buy a Season Pass at a Ski Area and Avoid Criminal Prosecution? Sports Litigation Alert, Vol 13, Issue 2, http://www.sportslitigationalert.com/
Judicial Ruling Creates Chaos in Oregon Where Volunteer Activities on Recreational Lands Have Come to a Halt, Sports Litigation Alert, March 17, 2017, Vol 14, Issue 5, http://www.sportslitigationalert.com/
Colorado Supreme Court Determines that a Piece of Playground Equipment on School Property Is Not Protected by the Colorado Governmental Immunity Act, Sports Litigation Alert Vol. 14, Issue. 13, http://www.sportslitigationalert.com/
California Proposition 65 Affects Retailers and Dealers, Too, National Sporting Goods Association, February 8, 2018 https://www.nsga.org/prop65
Court: Plaintiff Cannot Assume a Risk Which Is Not Inherent in the Activity or Which He Does Not Know, Sports Litigation Alert, Volume 15, Issue 13, July 20, 2018, http://www.sportslitigationalert.com/
Court: Plaintiff Cannot Assume a Risk Which Is Not Inherent in the Activity or Which He Does Not Know, Sport Facilities and the Law, July-August 2018 l Volume 3, Issue 1, https://sportsfacilitieslaw.com/
Kentucky Appellate Court Holds That Exclusions in an Insurance Policy That Render the Policy Worthless to the Insured Are Valid, Sport Facilities and the Law, Volume 15, Issue 18 September 28, 2018, https://sportsfacilitieslaw.com/
Court Allows a Release to Stop a Gross Negligence Claim, Sport Facilities and the Law, March-April 2019 Volume 3, Issue 5, https://sportsfacilitieslaw.com/
Utah Court Dismisses Negligence Claim Against Actress in Case Involving Injury on Ski Slopes, Sports Litigation Alert, June 3, 2022, Vol. 19, Issue 11, http://www.sportslitigationalert.com/
VIDEOS AND FILMS
Consulted on or written the scripts and provided legal advice for the following Videos and Films.
National Livery Safety System, “Accepting the Responsibility… A Guide to Safe Paddling.” 1993. American Canoe Association
National Livery Safety System, “You’re in Control…A Guide to Safe Paddling.” 1993. American Canoe Association
National Livery Safety System, “So Take the Time…A Guide to Risk Management Training for Outfitters.” 1993. American Canoe Association
Scuba Schools International, Basic Scuba Training, 1993.
Jack’s Plastic Welding, “Operation of the Paddle Cat.” 1993.
National Livery Safety System, “Whitewater Rafting.” 2000. American Canoe Association
National Livery Safety System, “Whitewater Kayaking.” 2000. American Canoe Association
OARS Whitewater Rafting Safety Orientation Videos, 2012, http://rec-law.us/NvHtqu
CONSULTATIONS FOR PUBLICATIONS: Quoted in or consulted by the following newspapers and magazines concerning risk management or outdoor recreation.
- Anchorage Daily News, Anchorage, Alaska
- Bicycle Retailer and Industry News
- Bike Bix, UK
- Boston Globe, Boston, Massachusetts
- Camp Business
- Club Industry, October 2011 Clubs, Manufactures Can Lessen Lawsuit Possibilities
- Colorado Sun
- Forbes.com
- Meetings & Conventions
- Outdoor Hospitality Magazine
- Outdoor Network, Boulder, Colorado
- Outdoor Retailer, California
- Outside Business, Chicago, Illinois
- Outside Magazine, Santa Fe, NM
- Rock & Ice, Letters to the Editor
- Rocky Mountain News, Denver, Colorado
- Ski Area Management, Boulder, Colorado
- The Rōbert Report
- Velo News, Boulder, Colorado
- Wall Street Journal, New York, New York
PUBLIC SPEAKING
Western River Guides Association, Annual Meeting December 1988: Reducing Your Exposure to Lawsuits, Reno, Nevada.
Colorado River Outfitters Association Annual Meeting, February 1988, 1989, 1990, 1992 and 1993: various recreational risk topics.
Western River Guides Association, Annual Meeting December 1988: Paperwork Necessary to Prevent Lawsuits.
Boy Scouts of America, National Search and Rescue Conference, July 1989, Reducing Your Risk of Being Sued, Colorado Springs, Colorado.
Outside Business, Taking Cover in the who’s to blame game, be trained for self-defense, October 1989.
Boy Scouts of America, National Law Enforcement Exploring Conference, July 1990, Reducing Your Risk of Being Sued, Boulder, Colorado.
Boy Scouts of America, National Exploring Conference 1990, Working with Parents to Avoid Litigation, Boulder, Colorado.
The Outdoor Network, Avoiding a Lawsuit, Spring 1991
Boy Scouts of America, North Central Region Exploring Law Enforcement Conference 1991: BSA Programs and Their Effect in Reducing Your Lawsuit Risk, Denver, Colorado.
Coalition of Exclusive Agents, First Annual Conference, July 1991, Reducing Your Errors and Omission’s Exposure, Las Vegas, Nevada.
International Conference on Outdoor Recreation: Outdoor Recreation Liability in the Future and How to Prepare for that Threat Today, University of Idaho, Moscow, Idaho.
International Conference on Outdoor Recreation: Paperwork: It Destroys Trees, Takes up Space and Maybe Necessary to Prevent Lawsuits, University of Idaho, Moscow, Idaho.
America Outdoors, Confluence 91, Reducing Your Liability, Orlando, Florida.
America Outdoors, Confluence 91, Understanding Your Insurance, Orlando, Florida.
Wilderness Education Association, Post Incident Emergency Legal Response, February 1992, University of Southern Colorado, Pueblo, Colorado.
Sixth International Conference on Outdoor Recreation, Liability for Sexual Contact between Guests and Guides, November 1992, University of Calgary, Calgary, Canada.
Sixth International Conference on Outdoor Recreation, Panel Discussion on: Liability for Certification, Accreditation and Endorsements in the Outdoor Recreation Industry, November 1992, Calgary, Canada.
Sixth International Conference on Outdoor Recreation, Panel Discussion of: Current trends in Outdoor Recreation Liability, November 1992, Calgary, Canada.
First Annual Challenge Course Symposium: Lawsuits: How to Handle them and How to Avoid Them, April, Boulder Colorado.
Exploring Search and Rescue Conference, Liability of Explorer Post Leaders. August 1993, Colorado Springs, Colorado.
Seventh International Conference on Outdoor Recreation: Emerging Trends in Outdoor Recreation, November 1993, Corvallis, Oregon
Seventh International Conference on Outdoor Recreation: Legalese, understanding the language, November 1993, Corvallis, Oregon
Confluence 1993, National Association of Canoe Liveries and Outfitters: National Livery System Video used as a Trial Defense Exhibit, December, Florida.
Second Annual Challenge Course Symposium: Setting up Your Course and Your Business to Avoid Litigation Threats, April, Boulder, Colorado
Fifth International Symposium on Human and Resource Management: Legal liability in Resource Management, June 1994, Fort Collins, Colorado
Building Partnerships, Building Trails: Risk Management for Trail Maintenance and Design. June 23, 1994, Park City, Utah.
Alpha Phi Omega Regional Conference: Alcohol Liability, a New Risk Plan for APO, October 29, 1994, Boulder, Colorado.
The Challenge Course Manager, Rick Management, March 28, 1995, Golden, Colorado
The Challenge Course Manager, Paperwork, Liability Defense, March 29, 1995, Golden, Colorado
Continuing Legal Education in Colorado, Sports Law, Product Liability of Outdoor Recreation Equipment, May 5, 1995.
Colorado Bar Association 1995 Convention, Sports Law, Outdoor Recreation in Colorado, September 8, 1995.
Seminar, Cornell University, Risk Management and Liability, Protecting you and your program from assault, October 24, 1995
Seminar, Cornell University, Paperwork, the Documents you need for Liability Protection, October 25, 1995.
International Conference on Outdoor Recreation, Risk Management in Outdoor Recreation Programs, October 24-25, 1995, Cornell University, New York.
International Conference on Outdoor Recreation, Risk Liability in University Outdoor Recreation Programs, October 24-25, 1995, Cornell University, New York.
International Conference on Outdoor Recreation, Update in Outdoor Recreation Law, October 24-25, 1995, Cornell University, New York.
National Association of Canoe Liveries and Outfitters, 1995 Convention, Risk Management in Outdoor Recreation Operations, November 26 – 27, 1995.
Wilderness Medicine Society, Liability Issues in Outdoor Recreation Law, February, 1996, Big Sky, Montana
Wilderness Education Association, Outdoor Recreation Liability Issues in College and University Outdoor Programs, February 23, 1996, Fall Creek Falls, Tennessee.
Wilderness Education Association, What’s New in University and College Outdoor Recreation, February 24, 1996, Fall Creek Falls, Tennessee
Outdoor Recreation Coalition of America Rendezvous and Conference, Liability Issues of College and University Programs, June 1, 1996, Colorado Springs, Colorado.
Seventh International Conference on Outdoor Recreation and Education, Land Management Issues for Colleges and Universities, November 7, 1996, Salt Lake City, Utah.
Seventh International Conference on Outdoor Recreation and Education, Update in Risk Management and the Law for Colleges and Universities, November 7, 1996, Salt Lake City, Utah.
Professional Paddlesports Association National Waterways Conference, Asset Protection and Estate Planning for the Canoe Livery Owner, December 5, 1996, Destin Florida.
Challenge Course Mangers Symposium, Legal and Risk Management Issues for the Challenge Course Manager, December 15, 1996, Boulder, Colorado.
Non-Profits in Travel Conference, Risk Management for Adventure Travel Industry, March 3, 1997, Arlington, Virginia
American Association of Health, Physical Education and Recreation Directors, Recreation Programs: Are You What You Think You Are, March 21, 1997, St. Louis, Missouri.
International Boating and Water Safety Summit, Signs, Signs Everywhere a Sign, April 22, 1997, San Diego, California
International Boating and Water Safety Summit, Is Your Insurance Adjuster Prospecting You for a Lawsuit? April 22, 1997, San Diego, California
International Conference on Outdoor Recreation and Education, How to Protect Your Mexican Assets from US Attorneys, November 7, 1997, Merida, Mexico.
Professional Paddlesports Association Conference, Signs, Signs, Everywhere a Sign, December 4, 1997, Clearwater, Florida.
Professional Paddlesports Association Conference, Update in Outdoor Recreation Law, December 4, 1997, Clearwater, Florida.
First World Conference on the Cold and 7th European Cold Conference, How to Protect Your Assets from US Lawsuits, January 15, 1998, Kiruna, Sweden
American Mountain Guides Annual Conference, Your Client Is Not Breathing, Not Bleeding and Maybe Dead, What Do You Do Next. October 17, 1997, Golden, Colorado.
International Conference on Outdoor Recreation & Education, The Association of Outdoor Recreation and Education in the Year 2000. October 22, 1998, Fort Walton Beach, Florida.
Wilderness Medicine Society, Liability Issues for Physicians and Wilderness Medicine, August 1999, Whistler, Canada
International Conference on Outdoor Recreation and Education, Update in Outdoor Recreation Law, Dealing with the Federal Land Managers and Access, November, 1999, Jackson, Wyoming
National Association of RV Parks & Campgrounds, Asset Protection Planning, Training Your Employees to Prevent Lawsuits, Employee/Employer Law, November 1999, San Antonio TX
Challenge Course Manager, Running your Program without attracting lawsuits, December 1999, Golden, CO
Maine Campground Owners Association 2000 Spring meeting and Trade Show, Asset Protection Planning and Risk Management, April 14, 2000, Portland, Maine.
International Conference on Outdoor Recreation and Education, Stump the Lawyer, November 11, 2000, Miami University, Oxford Ohio.
International Conference on Outdoor Recreation and Education, Update in OR Law, November 5-6, 2001, University of Idaho, Pocatello, ID
Inside Outside Magazine, Room for Rentals: Liability Concerns shouldn’t keep Retailers from renting equipment, March 2004
CLE International, Recreation and Adventure Program law and Liability Conference, April 10 & 11, 2003, Vail Colorado
International Conference on Outdoor Recreation and Education, How to Teach Risk Management, November 7, 2003, Utah Valley State College, Orem Utah
International Conference on Outdoor Recreation and Education, Pre-Trip Risk management Planning, November 9, 2003, Utah Valley State College, Orem Utah
American Mountain Guides Association Annual Conference, Insurance, October 23, 2004, Moab Utah
International Conference on Outdoor Recreation and Education, Product Liability, October 29, 2004, Nashville, TN
International Conference on Outdoor Recreation and Education, Legal Terminology, October 29, 2004, Nashville, TN
International Conference on Outdoor Recreation and Education, Legal Update, October 29, 2004, Nashville, TN
Lorman Education Services, CLE Program, Worker’s Compensation: How to Reduce Injuries on the job, October 17, 2004, Grand Junction, CO
CLE International, Recreation and Adventure Law CLE: Update in Outdoor Recreation Law, April 28 & 29, 2005, Denver, Colorado,
Wilderness Medical Society, Annual Conference, Legal issues for Physicians dealing with Outdoor Recreation Programs, July 23, 2005, Snowmass, Colorado
International Conference on Outdoor Recreation and Education, Risk Management Update, October 2006, Buffalo, NY
International Technical Rescue Symposium, Standards, November 3, 2007, Golden Colorado. Standards, (Was voted “Most Thought Provoking Presentation” by the attendees.)
Lorman CLE Workers’ Compensation Update, November 27, 2007, Colorado Springs Colorado, “Keeping Your Worker’s Compensation Costs Low”
Mountain Rescue Association Winter Meeting, January 12, 2008, Salt Lake City, UT, Standards
Sports and Recreation Law Association Annual Conference March 4, 2009, San Antonio, TX, Releases and Minors: An Update
Sports and Recreation Law Association Annual Conference March 4, 2009, San Antonio, TX, Releases and the Common Law
Rocky Mountain Lift Association Annual Conference, May 4, 2009, Grand Junction, CO, Risk Management: An Update
Rocky Mountain Lift Association Annual Conference, May 11, 2010, Grand Junction, CO, Customer Service from Lift Operations and Lift Maintenance
Rocky Mountain Lift Association Annual Conference, May 11, 2010, Grand Junction, CO, HR Paperwork
Association of Outdoor Recreation and Education, November 12, 2010, Keystone, CO, Major Legal Issues in Outdoor Recreation and Adventure Travel
Association of Outdoor Recreation and Education, November 12, 2010, Keystone, CO, First Aid Myths, Magic and Misconception from a Legal Standpoint
Association of Independent Camps Annual Conference, February 7, 2011, San Diego, CA, Kids Camps and Angry Parents who want to Sue.
Betty van der Smissen Memorial Lecture Risk Management and Legal Liability, Indiana University April 22, 2011, Bloomington, IN, Practical Procedures do not necessarily Prevent Punitive Proceedings or Sacred Cows in the Outdoor Recreation Industry
Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Creating a Workable, easy to write and use Risk Management Plan that won’t haunt you on the witness stand
Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Customer Service is Risk Management is Customer Service is Risk Management is Customer Service
Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Employee Discipline, Crap I have More Paperwork to Do.
Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Ask the Attorney I.
Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Ask the Attorney II.
Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Wake Up and Smell the Liability.
Association of Independent Camps Annual Conference, February 20, 2012, Atlanta, GA, Update in the law
National Cave Association, September, 25, 2012, Deadwood, SD, Cave Risk Management and Liability
Outdoor Retailer, January 23, 2013, Salt Lake City, UT, How to Bring Scouts into Your Store: There’s Even an App for That!
Outdoor Retailer, January 23, 2013, Salt Lake City, UT, Outdoor Recreation Retail Store: Liability Issues
NHEIC Risk Management Conference, April 3, 2013, Nashville, TN Things You Don’t Know and Should.
National Bicycle Dealer Association, Interbike, September 17, 2013, Las Vegas, NV, Risk Management and Legal Issues for the NBDA
Sport and Recreation Law Association Conference, 2014, Orlando, FL, Update on Release Law
Loveland Ski Area, September 24, 2013, Georgetown, CO Update on Risk Management Issues and Customer Service for Ski Areas.
Sport and Recreation Law Association Conference 2016, New Orleans, LA, Standard of Care in Skier v. Skier Collisions.
Sport and Recreation Law Association Conference 2016, New Orleans, LA, Releases for Gross, Intentional or Reckless Acts.
Colorado Alliance of Environmental Educators, March 19, 2016, 21st Century issues drug forward from the past: Claims and Lawsuits, but 21st Century ways to deal with them
Outdoor Recreation Managers Training, IMCOM G9, San Antonio, TX, Risk Management Update
Sport and Recreation Law Association Conference 2017, Las Vegas, NV, The Evolution of the Public Policy Doctrine in Voiding Releases.
U.S. Army MWR Attorneys Association, June 13, 2017, Orlando, FL, Update on Recreation Legal Issues.
Sport and Recreation Law Association Conference 2018, San Antonio, TX, Electronic Releases
Sport and Recreation Law Association Conference 2018, San Antonio, TX. What Drives People: Extreme Sports.
Adaptive Outdoor Recreation Summit April 30 – May 2, 2018 (Skype) in Park City, UT, Update in the Legal issues facing Disabled Programs
Sport and Recreation Law Association Conference 2019, Philadelphia, PA, Managing the Risk of Events Through Insurance – Exclusions Do Apply!
Sport and Recreation Law Association Conference 2019, Philadelphia, PA, Legal Issues of Misrepresentation & Fraud in Outdoor Recreation.
Sport and Recreation Law Association Conference 2020, Louisville, are waivers being replaced by statutes
Sport and Recreation Law Association Conference 2020, Louisville, Recreation Case Law
Sport and Recreation Law Association Conference 2020, Online Conference, Covid-19 and Cruises
Sport and Recreation Law Association Conference 2020, Online Conference, Criminal Liability for Backcountry Skiing
Sport and Recreation Law Association Conference 2020, Online Conference, is a Fiduciary Duty Owed in Sport Recreation Settings
Sport and Recreation Law Association Conference, Virtual, Criminal Charges for Starting an Avalanche
Sport and Recreation Law Association Conference, Virtual, Is a Fiduciary Duty Owed in Sport & Recreation Settings
Sport and Recreation Law Association Conference, Virtual, Covid-19 & Cruises
Sport and Recreation Law Association Conference 2022, Atlanta GA, Boy Scouts of America, Bankruptcy.
Sport and Recreation Law Association Conference 2022, Atlanta , GA, Who is writing the article?
TEACHING EXPERIENCE
- Prescott College, Prescott, Arizona, Risk Management for Recreation Programs. Case Studies of Outdoor Recreation Accidents and Responses, April 1992,
- Community College of Aurora, Business Law, April — May 1992, Substitute Instructor
- Oregon State University, Outdoor Recreation Liability, 1993
- Cornell University, Outdoor Recreation Liability, 1994
- University of Utah, Outdoor Recreation Liability, 1996
- Colorado State University, Adjunct Professor, Human Resources, Ph.D. program 1993-97
- Pikes Peak Community College, Adjunct Professor, Risk Management and Insurance Law, 1998, 1999
- University of Idaho, Outdoor Recreation Liability, 2001
- Continuing Legal Education in Colorado, Sports Law, Product Liability of Outdoor Recreation Equipment, May 5, 1995.
- Colorado Mountain College, Leadville, CO Risk Management, Ski Area Operations. Live Class (Fall 2002 to 2017) and Online Class (2004 to 2017)
- University of Utah, Salt Lake City, UT, Outdoor Recreation, Risk Management, Insurance and Law, Spring 2006 (online)
- University of Arkansas, Update in Recreation Law, February 9, 2018
- University of Arkansas, Update in Recreation Law, Sport and Recreation Risk Management, August 2, 2018
PODCASTS
The Spokesmen Cycling Roundtable Podcast, http://www.the-spokesmen.com/wordpress/
VOLUNTEER ACTIVITIES
- Founder and Board of Directors, National Outdoor Book Awards 1997 – Present, http://www.noba-web.org/
- Board of Directors, Greater Colorado Council 2014 – Present, Boy Scouts of America
- Activities Committee Chairman, April 2021 – 2023, Denver Area Council, Scouting USA
- District Chairman, Timberline District 2014 – 2019, Denver Area Council, Boy Scouts America
- Chairman, Youth Protection Program, 2018 – Present, Denver Area Council, Boy Scouts of America
- Risk Management & Insurance Committee, 2018 – Present, Denver Area Council, Boy Scouts of America
- Cycling Committee Chairman, 2020 – Present, Denver Area Council, Boy Scouts of America
- Board of Directors and Secretary, Galapagos Preservation Society 2006 – Present, http://gpsociety.org/
- Board of Directors, Colorado Alliance of Environmental Education 2008 – 2014, http://www.caee.org/
- Board of Directors, Trade Association of Paddlesports 2004 – 2010, https://www.facebook.com/Paddlesports
- Member and/or Chairman, American Alpine Club Library Committee, 2004 – 2019 http://americanalpineclub.org/p/library
LICENSES & CERTIFICATIONS:
- Licensed to practice law in:
- Ohio (inactive)
- Colorado
- Federal District Court, Colorado
- Tenth Circuit Court of Appeals
- Certified alpine ski binding technician
MEMBERSHIPS & PROFESSIONAL AFFILIATIONS:
- Academy of Legal Studies in Business
- Adventure Sports Lawyer’s Group
- American Alpine Club
- American Avalanche Association
- American Society of Testing & Materials (http://www.astm.org/)
- Bicycle Colorado
- Colorado Alliance of Environmental Education
- Colorado Bar Association
- Denver Area Council, Boy Scouts of America
- Galapagos Conservation Action
- International Climbing and Mountaineering Federation – (UIAA) (Union Internationale des Association d’Alpinisme) Safety Committee
- Vice President Legal Affairs Committee
- First Judicial District Bar Association
- National Ski Area Association (Past)
- National Ski Patrol (Past)
- Society of Park and Recreation Educators
- Sports & Recreation Law Association
- Trade Association of Paddlesports (Past)
HONORS:
- Sport and Recreation Law Association President’s Award
- East Muskingum School District Distinguished Alumni Hall of Fame
- Boy Scouts of America, Denver Area Council, Silver Beaver Award
- Boy Scouts of America, Denver Area Council, Exploring Division, District Award of Merit
- Boy Scouts of America, Denver Area Council, Timberline District, District Award of Merit
- Colorado Mountain College Advisory Board, Ski Area Operations
- Copper Mountain Peak Heroic Moment Award February 2002
- Denver Area Council, BSA Certificates of Appreciation
- Globe Pequot Press, Falcon Publishing Editorial Review Board
- ICS Books, Editorial Review Board
- Moab Confluence Writing Festival, Judge
- National Outdoor Book Awards Co-Founder and Judge, (http://www.noba-web.org/)
- National Summit on Outdoor Recreation, Ambassador, 1994
- Pike’s Peak Community College Advisory Board, Recreation and Guide Program
- Speaker, Betty van der Smissen Risk Management Lecture, University of Indiana 2011
- Eagle Scout, Boy Scouts of America
- Vigil Honor Member, Order of the Arrow, Boy Scouts of America
Dr. Charged with 3 Felonies for faking need for rescue on Denali
Posted: December 3, 2021 Filed under: Alaska, Criminal Liability, Mountaineering, Uncategorized | Tags: Denali, National Park Service Leave a commentState: Alaska
Dr. on Denali claimed he needed rescued due to lack of equipment after his partner was rescued. When that did not work he claimed he was hypothermic. However, people climbing with him stated he has no injuries or problems descending when he was told rescue was impossible.
When questioned the next day the Dr. was found to be evasive and obstructive and believed to have been deleting messages from his satellite device (?).
Lance is facing a charge of interference with a government employee and violating lawful order for refusing to hand over the device at the ranger’s request and for deleting messages, the charges state. Lance is facing a third charge of false reporting for claiming another climber was experiencing shock and hypothermia in order to prompt rescue.
Why Is This Interesting?
I’ve never heard of anyone being charged like this. I have heard and seen people fake injuries to get rescued before.
#ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #BoycottNH #NoChargeforRescue #NoChargeforSAR #RecLaw #RecreationLaw @RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry
What do you think? Leave a comment below.
Copyright 2020 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
G-YQ06K3L262
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,
Montana Recover receives $2.2 Billion to its economy due to the outdoor industry
Posted: December 1, 2021 Filed under: Activity / Sport / Recreation, Montana, Uncategorized | Tags: Economy, Montana, Outdoor recreation Leave a commenthttps://https://buff.ly/30gWZ7ubuff.ly/30gWZ7u
State: Montana
$2.2 Billion was added to the Montana economy in 2020 due to outdoor recreation 5.4% of the state’s employment is in the outdoor recreation industry which translates to 26,000 jobs. Montana tied for second with Alaska and after Hawaii, for the highest percentage of jobs attributed to the outdoor industry.
Why Is This Interesting?
That is a huge chunk of money for a state that historically relied upon extraction for its economy.
@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry
What do you think? Leave a comment below.
Copyright 2020 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
G-YQ06K3L262
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Outdoor Recreation Insurance Risk Management and Law, Jim Moss, James H. Moss, James Moss,
Washington DC consumer law set to suck money from retailers AND manufacturers who sell to Washington DC Residents
Posted: September 13, 2021 Filed under: District of Columbia, Jurisdiction and Venue (Forum Selection), Uncategorized | Tags: Code of District Columbia, Code of the District of Columbia: Chapter 39. Consumer Protection Procedures, Consumer Protection Law, Washington DC, Washington DC. District of Columbia Leave a commentMy advice. STOP ALL SALES TO WASHINGTON DC RESIDENTS OR WASHINGTON DC ADDRESSES!
The letter below was received from a Georgia cycling store. The letter demands thousands of dollars for violating Washington DC Chapter 39. Consumer Protection Procedures. Allegedly the prices on the website prior to the sale price were higher than the Manufacturers Suggested Retail Price (MSRP). In Most states you can sell something for any price unless you have an agreement with the manufacturer to sell within a price range. (Sherman Anti-Trust Act and the Manufacturers Suggested Retail Price regulations.)
The letter is posted here with permission from Joe Elam of Habersham Bicycles. THANKS JOE!
The law firm is real, but the website for the firm is not finished. https://www.dcclg.com/
The organization the law firm is representing is also a one-person operation and is listed by different firms that monitor non-profits as questionable. http://www.i4tm.org/#page-top.
https://www.causeiq.com/organizations/institute-for-truth-in-marketing,473475721/
https://nonprofitlight.com/dc/washington/institute-for-truth-in-marketing-inc.
The products were purchased in three different sales and shipped to:
Jared Zecco
1629 K St.
Suite 300
Washington DC 20006
The letter is demanding $1500 for each violation of the Washington DC law, however the only penalty I can find in the statute says not exceeding $1000 per violation.
§ 28–3905. Complaint procedures.
(3)(A) Any person found to have executed a trade practice in violation of a law of the District within the jurisdiction of the Department may be liable for a civil penalty not exceeding $1,000 for each failure to adhere to a provision of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section.
However, if the seller is taken to court, then $1500 can be recovered.
(A)(i) Treble damages, or $1,500 per violation, whichever is greater, payable to the consumer;
Here is the problem. You will be sued in a DC court.
Do Something
Don’t Sell to DC online until you understand this law.
MORE COMING
What do you think? Leave a comment.
Copyright 2020 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
http://summitmagicpublishing.com/book/Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
G-YQ06K3L262
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
Lost and Confused
Posted: May 18, 2021 Filed under: Assumption of the Risk, Release (pre-injury contract not to sue), Uncategorized | Tags: Recreation Law 2 CommentsSeems like I’m just repeating myself
I haven’t been posting lately, couple of reasons. Working on chapters for two different books Management of Park and Recreation Agencies and Mountain Medicine and Technical Rescue.
But that is not the main reason, not burn out, just writing the same thing over and over again. Almost 3000 articles that say Use a Release or Make Sure your Guest Knows about Assumption of the Risk.
Website managers keep telling me to go back and update what I’ve written, which I should in a few cases, but that seems like a rip off honestly. (Even though no one is paying me to do this.)
I also get zero feedback from anyone 98% of the time. So, I don’t know if you like or dislike what I’m writing.
Right now, the so purpose of this site is to keep me #1 in Google Searches. I can continue to do that by just posting random key words every once in a while.
| Recreation Law | Assumption of the Risk | Release |
| Waiver | Negligence | Outdoor Recreation |
| Outdoor Recreation Law | Gross Negligence | Negligence Per Se |
You get the picture.
What do you want me to write about?
There are tons of lawsuits. Probably 3-5 more lawsuits in the outdoor recreation industry then when I started writing ten years ago. The plaintiff’s bar has found the industry. And found there is money in the industry, which is why you can expect your insurance rates to start climbing, if they have not already. More importantly you are going to see more activities that are not going to be covered by a policy.
Do Something
So, look if you want something specific here let me know! Jim@rec-law.us
If you want something new here, let me know. Jim@rec-law.us
If you want the same thing, let me know. Jim@rec-law.us
Or leave a comment
Jim
If not, you’ll get key words in the future.
What do you think? Leave a comment.
Copyright 2020 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
Overturned: Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.
Posted: March 4, 2021 Filed under: Assumption of the Risk, Pennsylvania, Snow Tubing, Uncategorized | Tags: Pennsylvania, Snow Tubing Leave a commentAssociation resource guide is used against the defendants to prove the plaintiff’s case.
Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670
State: Pennsylvania, Superior Court of Pennsylvania
Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois
Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation
Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium
Defendant Defenses: failure to state a claim and release
Holding: For the defendant
Year: 2018
Summary
In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.
Facts
This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois
went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.
The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.
Analysis: making sense of the law based on these facts.
The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence”
The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.
In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:
The court first looked at the definition of recklessness and gross negligence.
The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:
he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
The key point is the failure must be an intentional failure. The plaintiff must establish that the defendant consciously acted or failed to act. “Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.”
To prove gross negligence Pennsylvania laws requires a deviation from the standard of care.
Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary standard of care.”
Normally the trier of fact, the jury must make this decision. However, Pennsylvania courts are allowed to decide this issue if the facts are “entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”
Normally, to prove the defendant’s duty, expert testimony is required to establish the standard of care that the defendant failed to meet and how the expert deviated from that standard of care.
The plaintiff hired to experts that provided opinions as to the actions of the defendant. The first expert opined that the actions of the defendant were beyond the standard of care, but never provided an opinion about what the standard of care was.
DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.
The second expert did not set forth any standards of care.
Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.
The simple negligence claims were barred by a release. The plaintiff argued on appeal that the release was void because it did not specifically name in the release one of the defendants. However, the court found that the language in the release, “and their owners” was sufficient to cover the defendant when not specifically named in the release.
There was a dissent in this case. The dissent argued the plaintiff should win because the warning on the mats used to decelerate the tubes stated that vinyl tubes were not to be decelerated by mats or other devices. The dissent also argued the opinions of the experts did provide enough information for a decision about the recklessness and gross negligence of the defendants.
In my view, Appellants have put forth enough evidence at this stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.
So Now What?
The plaintiff was rendered a quadriplegic by the accident so a lot of money was at stake. The plaintiff did not hire experts correctly or did not explain what was needed from the experts. This first rule of pleading is proving your case legally on the paperwork and then prove it in the record. The plaintiff failed to do that.
The biggest hurdle was the association resource guide. The National Ski Area Association created a resource guide for tubing hills. The dissenting judge called it the standard of care. The resource guide did not contain any information on using devices to slow tubes. The resource guide said you should have a sufficient run out.
The court did not see the issue as using a mat to slow participants as a violation of the standard to use a run out.
That was the close one in this case.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Thank you! Happy Memorial Day
Posted: May 27, 2019 Filed under: Uncategorized Leave a commentTo those who have served and will serve and to the families of all, thank you.
Happy Memorial Day
I just realized; this site is 10 years old
Posted: May 15, 2019 Filed under: Uncategorized | Tags: 10 Years, Recreation Law, Ten, Ten Years Old 2 CommentsMy first post on this site was February 10, 2008, Releases 101
Happy Birthday to a group of 1’s & O’s someplace out there in the world.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: jim@rec-law.us
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
By Recreation Law jim@rec-law.us
James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
Colorado Environmental Film Festival Environmental Photography Exhibition
Posted: September 29, 2018 Filed under: Uncategorized | Tags: Colorado Environmental Film Festival, Environmental Photography Exhibition Leave a commentDoes your photography move audiences to think about our environment? Show us your work and make a difference. Best of show in the Annual Environmental Photography Exhibition at the American Mountaineering Center in Golden, Colorado. Cash awards. Great venue and a great cause. Held in conjunction with the Colorado Environmental Film Festival. There will be a photography keynote speaker and reception. Details at https://www.ceff.net/photography-exhibition/
Under 19 and over 19 award categories.
Important dates:
· Call for Entries deadline: Wednesday, October 31, 2018
· Notification Date: Friday, November 20, 2018
· Physical Delivery Date Deadline: Friday, February 15, 2019
· Opening Reception: February 22, 2019, 5:30-7:30pm with Keynote speaker (6:30-7:15pm)
· Exhibition Open at American Mountaineering Center: February 22-April 26, 2019
Please share with all photographers, outdoor organizations, nature centers, parks, natural resource agencies.. Thanks.
#RecLaw #RecreationLaw #OutdoorLaw #ORLawTextbook #OutdoorRecreationLaw #OutdoorIndustry
National Clean Up Day is September 15!
Posted: September 14, 2018 Filed under: Uncategorized | Tags: Clean Up Day, Litter, National Clean Up Day, Pick up your trash Leave a comment
New volunteer opportunity – From Sea to Shining Sea |
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Interested in the Legal Issues of Recreation and Sports Law? Attend the SRLA conference
Posted: September 6, 2018 Filed under: Uncategorized | Tags: Recreation Law, Sports & Recreation Law Association, Sports and Recreation Law Association, Sports Law, SRLA Leave a commentGood morning SRLA members,
I hope everyone had an enjoyable holiday weekend, and is off to a productive start this semester. The BOD is working diligently on several initiatives related to our 2019 Conference; please read carefully below and respond to the appropriate parties where requested.
- Call for Nominees: 2019 BOD Candidates
President-Elect Sungho Cho is soliciting nominations for the 2019 slate of BOD Candidates. Please see the message from SungHo here: http://www.srlaconference.com/wp-content/uploads/2014/02/SRLA-Call-for-Nomination_FA18_Revised.pdf
SRLA can only exist if our members are willing to dedicate themselves to this important service; please consider nominating yourself or a colleague.
- Call for Abstract Reviewers:
SRLA is in need of reviewers to review conference abstract submissions. Please consider serving as a reviewer, as such service is vital to the organization and your colleagues within SRLA. We anticipate that abstract reviewers will need to review 7-10 abstracts between October 15th and November 1st. If you are interested in serving as a reviewer, please contact SRLA Past-President Michael Carroll at mscarroll, indicating your willingness to serve. Please also reach out to Michael Carroll with any questions.
- Student Awards
Information is now available for our 2019 student awards; summaries are below, but full details are available at: http://www.srlaconference.com/awards/
- Bernard Patrick Maloy Graduate Student Research Award; Given annually to the graduate student who submits the best research paper to the Honors and Awards Committee. Award winners are encouraged to work towards future publication in Journal of Legal Aspects of Sport.
Submission Deadline: Saturday, 12/1/18
The winner will receive free Conference Registration and reimbursement up to $500 in expenses to attend the annual SRLA Conference. The winning paper and the selected student will be included in the Conference Program to present his/her paper, as well as recognized during the SRLA Awards Banquet
- Undergraduate Student Research Poster Competition; Allows undergraduate students an opportunity to submit and present research for evaluation by a panel of judges from the SRLA professional membership. Accepted posters will be displayed concurrently with the Poster Session at the SRLA Conference, with the winning poster chosen by the panel of judges.
Submission Deadline: Saturday, 12/1/18
The Undergraduate Student Research Poster Competition involves undergraduate student or a team of two students submitting the most outstanding research-based poster according to the criteria and identified topic/theme. The winner(s) will receive a $250 cash award and recognition at SRLA Conference.
Topic: Legal Aspects of Sport and Recreation facing Global Sport Organizations
- Conference Hotel Reservations:
The SRLA room block is available for you to make your conference hotel reservations. Our guaranteed number of rooms may be less than the number of attendees, so we recommend reserving your room as soon as you are able. To make a reservation, please follow the link at the bottom of the SRLA Accommodations webpage: http://www.srlaconference.com/accomodations/
- Abstract Submission Deadline
The deadline to submit an abstract is Friday, October 12, 2018 at 11:59 p.m. Eastern Standard Time. Please visit the SRLA Abstract webpage for full details: http://www.srlaconference.com/call-for-abstracts/
Sterling Rope Kicks off 25th Anniversary Treasure Hunt
Posted: July 17, 2018 Filed under: Uncategorized | Tags: 25th Anniversary, American Alpine Club, Anniversary, Sterling Rope, Treasure Hunt Leave a comment
Climbing rope brand Sterling wants all climbers, explorers and adventurers to think about their brand when they head to the hills. They recently announced an international treasure hunt and Instagram contest to celebrate its 25th anniversary. From June to November, Sterling will be partnering with Access Fund (@AccessFund) and the American Alpine Club (@AmericanAlpine) to place wooden #Sterling25 markers at 25 different crags across the US and Canada – anywhere from the trailhead to the top of a climb – and clues will be posted by @SterlingRope each week to help hunters find them.
Every Friday through November 16 @SterlingRope will post a photo and factual clue from its Instagram page. The first person to discover the #Sterling25 marker and post a photo with it tagging #Sterling25, @SterlingRope, @AccessFund, @AmericanAlpine will win a new Sterling rope. The next 25 people to post with the same marker will receive additional Sterling swag. Each day the marker goes unfound, another clue will be released to help treasure hunters win.
There will be 25 different markers in locations ranging from Alaska to Alberta, Washington to West Virginia, and Michigan to Maine, giving hunters around the country 650 chances to win.
Learn more here: https://sterlingrope.com/TreasureHunt
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
Save the date! SERR Conference in Athens, GA March 24-26, 2019
Posted: June 12, 2018 Filed under: Uncategorized | Tags: SERR, Southeastern Recreation Research Conference Leave a commentSave The Date
Southeastern Recreation Research Conference
March 24-26, 2019
Athens, GA
The 41st Annual Southeastern Recreation Research (SERR) Conference is officially scheduled for March 24-26, 2019 in beautiful downtown Athens, GA at the Graduate Hotel.
SERR provides an excellent opportunity for researchers, students, and managers throughout the natural resources, recreation, and tourism fields to learn about and discuss innovative and interdisciplinary research related to recreation and tourism in the Southeastern US, the US, and internationally. Registration to attend SERR and the call for poster and oral presentations will go out this fall.
Go to http://www.serrconference.org/ to learn more.
Best Regards,
Bynum Boley, Jamie Thorn, and Rob Porter (Conference Co-Chairs)
B. Bynum Boley, Ph.D.
Assistant Professor of Parks, Recreation, and Tourism Management
Warnell School of Forestry and Natural Resources
180 East Green Street
University of Georgia
Athens, GA 30602-2152
phone: 706-583-8930
fax: 706-542-8356
email: bboley@uga.edu
Send Interbike your Inovative Ideas and Win a Free Trip to Interbike!
Posted: June 8, 2018 Filed under: Uncategorized | Tags: Inovation, Inovation Awards, Interbike Leave a comment
WIN A FREE TRIP TO INTERBIKE 2018 |
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DEADLINE APPROACHING FOR INTERBIKE’S RETAILER INNOVATION AWARDS
The deadline to nominate yourself for the 2018 Interbike Retailer Innovation Awards is June 22. The retailer category recognizes and celebrates independent bicycle retailers that have implemented innovative ideas and strategies into their businesses that led to positive results within the past year. Whether it is a used bike trade-in program, an in-store remodel or merchandising initiative, staff training, hiring practices, local events or growing the bicycle community in your area, we want to hear your story. Ten award-winners will be chosen from individual retailer submissions by a panel of executives from BRAIN, The Mann Group, The National Bicycle Dealers Association and Interbike and will receive free round-trip travel and accommodations to this year’s show, a store profile in Bicycle Retailer and Industry News and more. Nominations are being accepted now until June 22.
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Bands Announced for Velorama Party!
Posted: June 1, 2018 Filed under: Uncategorized | Tags: @CoClassicPro, Colorado Classic Professional Bike Race, Velorama Leave a comment| Tickets Start at $10
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Words and Phrases Defined in an Articles
Posted: May 9, 2018 Filed under: Uncategorized | Tags: Adhesion Contract, Amicus Curiae, Assumption of risk, Certiorari, Definitions, Derivative Claim, Duty of care, Express Assumption of risk, Failure to Warn, Foreseeability, Forum non conveniens, Fraudulent Misrepresentation, Gross negligence, Implied Assumption of the Risk, Inherently Dangerous, Lex loci contractus, Negligence, Negligence per se, Negligent Misrepresentation, Open and Obvious, Phrases, Primary Assumption of Risk, Product liability, Public Policy, Punitive damages, recklessness, Release, Remittitur, Rescue Doctrine, Respondeat Superior, Secondary Assumption of Risk, Sudden Emergency Doctrine, Unconscionable, Wanton or Reckless, willful, Wrongful Death Leave a commentThe articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.
This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.
Last Updated April 24, 2018
RELEASE CHECKLIST: What MUST your Release contain to work
Posted: May 1, 2018 Filed under: Uncategorized | Tags: 50th Anniversary of the Wild and Scenic River's Act, Fiftieth Anniversary, Wild and Scenec Rivers Leave a commentIf you are getting ready for your summer recreation business, it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.
Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical, and they may all be modified based on your activity, program, employees, and ability to undertake the risks. Some changes are always needed based on your activities, your guests and the state or local you are working in.
I’ve divided this checklist into three major parts:
- Required for your Release to be Valid: What is absolutely required?
- Needed: What you should have for your release to be valid in most states.
- What Your Release Cannot Have: What you should never have in your document.
There are some subsections also that are self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.
First make sure your state or the states you operate in allow the use of a release. See States that do not Support the Use of a Release. Then check to see if any of the states you operate in or are based allow a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
Required for your Release to be Valid
Contract: A release is a contract. The legal requirements required in your state for your electronic or piece of paper release to be a contract.
Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document? Courts want to see that the guest knew they were giving up some legal rights.
Parties: You must identify who is to be protected by the release and who the release applies to. That means the correct legal names as well as any business name.
Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against. This is any area that is growing in release law.
Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk. Assumption of the Risk is the second defense after your release in stopping a lawsuit.
Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence? The required language and how it must be explained is getting more specific in all states and yet are different in most states.
Plain Language: Is the release written so that it can be understood? Is it written in plain English?
Venue: Does your release have a Venue Clause?
Jurisdiction: Does your release have a Jurisdiction Clause?
Signatures: Does your release have a place for the signor to date and sign the release? For a contract to be valid, it must have a signature, or if electronic acknowledgment.
Continuing Duty to Inform: Information to complete the continuing duty to inform for manufacturers
Items that may be Needed Dependent upon the Purpose of the Release.
Parental Release: Signature of Parent or Guardian AND correct legal language signing away a minor’s right to sue.
Statement the Signor has conveyed the necessary information to minor child.
Statement the Signor will continue to convey necessary information to a minor child.
Reference to any Required Statute
Signor has viewed the Website.
Signor has viewed the Videos.
Signor has read the additional information.
Notice the Release is a Legal Document:
Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?
Opening/Introduction: Does your release have an opening or introduction explaining its purpose
Assumption of Risk Language
Minor Injuries Noticed
Major Injuries Noticed
Death
Mental Trauma
Signor can Assume Risks.
Risks identified that are not normally Not Associated with Activity.
Drug & Alcohol Statement
Company Right to Eject/Refuse
Signor is in Good Physical Condition.
Able to Undertake the activity
Good Mental Condition
Release Protects Against
Lost Personal Property.
Lost Money
Lost Time
Loss of Life
Medical Bills
Injuries
Indemnification Clause
First party costs
Third party costs
Severance Clause
Enforceability of the Release Post Activity
Breach of Covenant of Good Faith
Language Dependent on How the Release is to be used.
Product Liability Language
Release of Confidential Medical Information
Demo Language
Rental Agreement Clause
SAR & Medical Issues
Permission to release medical information
Medical Evacuation
Medical Release
Medical Transportation
Waiver of medical confidentiality
Waiver of HIV status
Alternative Resolution
Arbitration
Mediation
Items I include in the releases I write.
How Release is to be interpreted.
Statement as to Insurance
Signor has Adequate Insurance.
Incidental issues covered.
Signor has Previous Experience.
Signor Read and Understood the Contract
Agreement that the document has been read.
Agreement that the signor agrees to the terms.
What Your Release Cannot Have
Places to Initial: This just requires more effort on your staff to check and is not legally required.
Small Print: If a judge can’t read it, then it does not exist.
Attempting to Hide your Release: You attempt to hide your release; the judge will act like he or she never found it. The below are all examples of attempting to hide a release.
No heading or indication of the legal nature
Release Hidden within another document
Important sections with no heading or not bolded: No hiding your release
Multiple pages that are not associated with each other: splitting up your release is hiding it.
No indication or notice of the rights the signor is giving up: Some day the statement I did not understand it will resonate with a judge. This prevents that.
Most Importantly, had your Release Updated Recently.
If you have been following this website and reading these posts, you understand you need to have an attorney write your release. That attorney must:
- Understand Release law in your state or the states where you operate.
- Understand your business and operation
- Understand the risks you and your guests undertake.
- Understand the people you are marketing too, to make them guests.
- Make sure nothing in your marketing voids your release.
Nothing in your marketing program should invalidate your release. Does your marketing create liability not covered in your release? Is your marketing directed to the correct people that your release was written for?
When you write your release with your attorney, make sure it is going to work for you.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
A Call for Presentation Proposals for the 2019 Grand Canyon History
Posted: April 26, 2018 Filed under: Uncategorized | Tags: Grand Canyon, Grand Canyon History Symposiumm Leave a commentA Call for Presentation Proposals for the 2019 Grand Canyon History Symposium
A Celebration of 100 Years of Grand Canyon National Park
The Grand Canyon Historical Society is pleased to announce the 5th Grand Canyon History Symposium, to be held February 20-24, 2019 at Grand Canyon’s South Rim. We encourage everyone who has done research on, or been a part of, Grand Canyon regional history to consider presenting. Proposals must be received by Friday, May 4, 2018.
Background
Since January 2002, there have been four history symposia, bringing together historians, witnesses to history, park employees, and others with a passion for Grand Canyon history. The presentations from each symposium were assembled into a collection of essays. It is the Grand Canyon Historical Society’s intent to publish the proceedings from this symposium as well.
Grand Canyon National Park Focus
The 2019 Symposium Selection Committee will be reviewing presentation proposals with preference in selection given to those that tie into Grand Canyon National Park’s 100 years of history. Presentations concerning the history of the greater Grand Canyon and its adjacent areas within the Colorado Plateau will also be considered. Dates of the 2019 History Symposium presentations will be Thursday Feb. 21st, Friday Feb. 22nd and Saturday Feb 23rd.
Since the 2016 Symposium had a limited number of presenters, many who submitted were not selected. Candidates who were not chosen are encouraged to re-submit their proposals for the 2019 Symposium. Those who have presented or submitted proposals for the previous four Symposia are also encouraged to submit a new proposal.
Submitting a Proposal
To be considered, please submit the following information by Friday, May 4, 2018:
__ Name __ Mailing address __ Phone number(s) __ Email address
__ Presentation title with a 150-300 word abstract or summary of your presentation
__ 75 word bio
__ Audio-visual requirements
__ Acknowledgment that, if selected, you agree to submit your complete PowerPoint presentation, not to exceed 20 minutes, and up to 3,000 word presentation in essay form by Friday, January 11, 2019
Send to:
symposium@grandcanyonhistory.org (preferred)
or Grand Canyon Historical Society, PO Box 1667, Grand Canyon, AZ 86023
Notification of Proposals Selected
All individuals who submitted a proposal will be notified, regardless of selection, via email by Friday, May 25, 2018
Complete details and updates on the Symposium are available at http://www.GrandCanyonHistory.org.
Questions may be directed to:
Richard Quartaroli, Presenters Chair, at symposium@grandcanyonhistory.org or
Dave Mortenson, President, Grand Canyon Historical Society, at president@grandcanyonhistory.org.
I took my Garmin Vivosport off. In fact, I’m done with it.
Posted: April 4, 2018 Filed under: Uncategorized | Tags: #Vivosport, Fitbit, Garmin, Sync Leave a commentYes, the Garmin Vivosport can still record information, and if you recharge on a computer, you can sync the information. However, that is not what a fitness tracker is made for.
As it sits back on my desk, my Vivosport is a brick. A $200 brick actually a $169.99 brick if you go to the Garmin Vivosport website. I rounded up……
I flew to a different time zone. I landed and missed my first meetings because I did not realize my Vivosport did not automatically update. I did make happy hour!
I spent 20 minutes getting the date changed. I have four watches at home; it would have taken 20 seconds to change the date on them. I normally change the time when the plan leaves the runway. I’m ready when I walk down the gangway to be where I need to be when I need to be. I got use to my fitness trackers updating the time.
Upon arriving home, I quickly changed the Vivosport back to the right date.
I then synched my Vivosport, and it fixed the date automatically, there went 35 minutes of frustration, but then I did not pay to have a watch only be correct when it is hooked to a machine.
I took it off. It is plugged into my desk, still with the wrong date on it; it did not update for daylight saving’s time. If I sync it, it probably will. However, there is no reason to sync it.
The Garmin Vivosport is not my first fitness tracker. I had a Fitbit for 20 months. However, it literally fell off my wrist. The band where it connected to the Fitbit just disintegrated. Fitbit still works, but there was nothing I could do to put it back on my arm. Hence, the reason why I purchased the Garmin Vivosport. Never had a Garmin product fall apart, so it had to be better.
Fitbit for $100 for 20 months. Garmin Vivosport for four months for $200. Not thinking I made the right move.
Synching a fitness tracker is like watching a friend’s vacation photos, not videos, photos! At best, it is a history that I no longer recognize or know about. I know I’ve been there done that it’s just too late; it no longer has interest 2-4 days later.
What it is not doing, what I paid the money for it to do, is tell me in real time what I am doing, or not doing. Yes, it still comes on and says to move, but how much? What I have I done today, how long have I been sitting, how much more do I need to do? Is today a good day or a bad day, do I need to change some things around to catch up? My working Vivosport answered a lot of questions that I enjoyed and wanted to know. Now, it answers nothing. It provides no information without the manual and smaller fingers to help you learn how to find it.
I’m spoiled. I like a screen that I got to know that said to get off your butt and do something. It also told me how much of that something I needed to do.
I’m going to start working to send it back. It might be a hurdle, but between persistence and my law degree, I’ll get my money back. When I do, I’ll tell you how I got it done so you can get your money back also.
Unless you like your paperweight.
Update on my Garmin 1000
Keeping it plugged into a computer all the time, catching the occasional update also does not work. It just doesn’t seem to like it. When I check to see if it is charged and up to date, Garmin Express can’t find it, and the Edge 1000 needs to be turned off, reset or restarted.
So now it sits on my desk, with me hoping to remember to plug it in before in enough time to top off the charge and catch any updates.
Both situations seem to need software fixes. The Velosport I can understand dealing with Verizon, I don’t like Verizon either half the time. The Edge, I don’t understand why they can’t fix that issue. I know Garmin knows about it.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
Avoiding a Lawsuit: Deal with your guest’s problems, don’t pass the buck to someone who can only create a lawsuit.
Posted: March 28, 2018 Filed under: Uncategorized | Tags: Adjuster, Claim, Client, Friend, Guest, Insurance Company, Lawsuit, Litigation, Problem, Settlement 1 CommentAs you prepare for the upcoming season, checking each piece of equipment and training staff, your personal pre-season checklist needs to be updated: how will you handle an emergency? Each member of your staff must be prepared, trained in First Aid and CPR and know how to respond to a crisis. But are you prepared for the responsibilities of making sure an injured guest will not sue you?
As you prepare for the upcoming season, checking each piece of equipment and training your staff, your personal pre-season checklist needs to be updated: how will you handle an emergency? Each member of your staff must be prepared, trained in First Aid and CPR and know how to respond to a crisis. But are you prepared for the responsibilities of making sure an injured guest will not sue you? This article will probably be the exact opposite of how you have approached problems in the past. I suggest, however, that you read and think, and then call your insurance agent.
Most times, we, the soon-to-be-defendant, place the idea of a lawsuit in the mind of an injured party. I was once involved in a lawsuit that started when the defendant called the plaintiff and offered to settle the lawsuit. The plaintiff hadn’t started a lawsuit, but like everyone today, had threatened to get an attorney. Because the defendant believed he had a lawsuit, the plaintiff called an attorney, and a lawsuit was started. Too often, we have been trained by our auto insurance cards to say nothing, get names and addressees, and tell the injured parties that our insurance companies or adjusters will call. Try this test. Get your staff together and ask them to say the first word that comes to mind after you say adjuster, settlement, claim, or insurance company. Eventually, the words remind them of money. We have, by following the advice of our insurance carriers, put the idea of money into the minds of injured parties.
By immediately bringing in third parties to handle problems, we remove the caring attitude on which the outdoor industry was founded and bring in strangers to handle a problem. Our care for the environment and its relationship with human’s dissolves when a human is injured by or in the environment. The majority of people that sue over an injury do not want money; they want their problems taken care of. Think about the last car accident you were involved in. Did you want a check or did you want your car fixed? If the inconvenience you encounter is eliminated, and you are returned to your situation prior to the accident, you won’t worry about the accident or getting money. Our first goal should be to place people in the position they were in before they were injured, not with money, but with the ability to get along, get well, and get back to the program.
How often do we shun an injured guest? Don’t shun them, get them back. Fulfill your commitment to provide them with the adventure and the relationship your course or brochure promised. This effort to bring back an injured participant will bring additional rewards.
When a guest is injured on a trip, he/she is dealing with an instructor and organization that he/she knows and trusts. The guests won’t worry about money. Put yourself in an injured party’s place. Who would you rather deal with, the guide and company with whom you have spent four days and have gotten to know and trust, or an adjuster that you don’t know? How would you feel if the people with whom you have just spent time building trust disappear? Don’t disappear.
Try this. When someone gets hurt, call your insurance agent, notify your attorney, and go to the hospital to tell them you are sorry that their vacation was ruined. Ask them if there is anything they need. Help them arrange special transportation home. Help them get back into the program or catch up with the trip. Give them a rain check, ask them to come back and use it, send them flowers, and help them get well. Double check their insurance form with the information from their medical release form (Outdoor Network, Winter 1990, Volume 1, Issue 8), make sure the deductible is covered under your liability med-pay, and help them recover. Why should they sue you? You are now a friend helping them, not someone who disappeared when the injury occurred to be replaced by a clipboard-carrying adjuster.
When you get mad at a friend, what do you feel? Anger. When you get mad at someone, you don’t know, you get an attorney. Prevent the lawsuit from arising by making an injured guest comfortable, make them like you, keep the adjuster who only talks money out of the equation. Insurance companies can only pay; they can’t eliminate the emotional problems. You can.
Too often, we are afraid of saying anything, for fear that it will come back and haunt us in a courtroom. That fear alienates us from someone we just spent days trying to get to know. We have to know our guests to help them get the most from the experience, and yet we run for cover when they get injured. A rafting company had an attorney that was injured on a rafting trip. The attorney was air-lifted out of the canyon and taken to the hospital. the staff visit her and made her hospital stay more comfortable. For the price of some flowers, and the time it cost to stop by and say hello before and after work, they made a friend. The attorney walked back into the canyon after she got well and rejoined the trip. She never sued.
The rafting company took a potentially devastating incident and turned it into a minor incident. Also, it was probably great advertising: “The trip was rough and exciting. I was injured, and the staff was super. I even hiked back in order to rejoin the trip.”
Clearing this with your insurance company will be the biggest hurdle. Walking into a hospital room and showing someone, you care will remind you of the first time you strapped on a climbing harness. Some of my clients and I have developed a program with the insurance companies that makes them less concerned. After an accident occurs, the insured, the insurance company, and I get on the phone and plan a procedure for helping the insured. Coverage is reviewed, and limits are set on the amount of money to be spent in covering the insured’s expenses and my fees. The insurance company is not left in the dark, and the insured knows that we are only a phone call away to answer questions and provide support. Call your insurance agent and find out how they feel about a program like this.
Next time one of your guests is injured, think about how they feel. They are probably a long way from home, alone, in a strange hospital. How much better would you feel if someone stopped by once in a while and asked about you? How more secure would you be if you knew you could call someone and ask them to pick up another book for you on their way home from work? How mad could you get if they sympathized with your injury, wanted you to get well, and wanted you to come back and see them again?
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,
Applications being accepted through April 5, 2018 for A3 Executive Director position. Position announcement below employment listing
Posted: March 27, 2018 Filed under: Uncategorized | Tags: American Avalanche Association, American Avalanche Association (A3), avalanche, Executive Director Leave a comment
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