New Hampshire: Search and Rescue Response Expenses; Recovery
Posted: June 6, 2023 Filed under: 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
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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
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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).
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Estate of Taylor v. Outdoor Adventures of Davison, LLC (Mich. App. 2022)
Posted: January 31, 2022 Filed under: Michigan, Paddlesports, Uncategorized | Tags: Commercial Campground, drowning, Exclusive Remedy, Michigan, Paddleboard, Worker's Compensation Leave a commentEstate of Taylor v. Outdoor Adventures of Davison, LLC (Mich. App. 2022)
ESTATE OF ALLYN L. TAYLOR, by LOUIS B. TAYLOR, Personal Representative, Plaintiff-Appellee,
v.
OUTDOOR ADVENTURES OF DAVISON, LLC, Defendant-Appellant.
Nos. 355035, 355036
Court of Appeals of Michigan
January 13, 2022
UNPUBLISHED
Genesee Circuit Court LC No. 18-110936-NO.
Before: Mark T. Boonstra, P.J., and Mark J. Cavanagh and Michael J. Riordan, JJ.
Per Curiam.
In this negligence action arising from the drowning death of plaintiff’s decedent, Allyn Taylor, defendant Outdoor Adventures of Davison, LLC, appeals by leave granted the trial court’s orders denying its motions for summary disposition.[1] We hold that the trial court erred by ruling that the exclusive remedy provision of the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., did not apply to bar plaintiff’s negligence claim. At the time of his drowning death, Taylor, an employee of defendant, was on defendant’s grounds performing a task for defendant within a reasonable time after his working hours. Thus, he is presumed to have been in the course of his employment and he was not engaged in an activity the major purpose of which was social or recreational. MCL 418.301(3). Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor’s drowning death. Accordingly, we reverse and remand to the trial court for entry of summary disposition in favor of defendant.
I. BACKGROUND
This case arises from the tragic June 12, 2016 drowning death of plaintiff s decedent, 20-year-old Allyn Taylor, on Lake Linda in Davison, Michigan. Taylor was an employee of defendant, which owns a campground on Lake Linda. Defendant provided paddleboats to its customers for their use on Lake Linda. Taylor’s job responsibilities included checking out the boats and making sure all the boats were accounted for at the end of the day. When the boats were not in use, they were moored to a dock, but many of the ties were bad so boats would sometimes float away. One of Taylor’s job responsibilities was to retrieve any wayward paddleboats. Taylor would sometimes use another boat to pull a wayward boat back in, but if the wayward boat was not too far away from the dock, Taylor would sometimes swim out to it and pull it back in. Evidence was presented that the lake contained seaweed or lake weeds in the water near the dock, which could make swimming difficult.
On June 12, 2016, Taylor finished work at approximately 8:00 p.m. He thereafter spoke to his mother on the telephone and told her that he was going to go fishing while he waited for his parents to pick him up, and he also planned on bringing in a paddleboat that had drifted away from the dock. Taylor drowned that evening while swimming to reach a wayward paddleboat.
According to Deputy Jason Thomas of the Genesee County Dive Team, the water right near the dock was clear, but lake weeds were visible at the top of the water within 10 yards of the dock. Taylor’s body was recovered in 9 to 10 feet of water near the wall of lake weeds, approximately 90 feet from the dock. Autopsy photographs showed that Taylor had weeds wrapped around his left arm, in his mouth, and also in his nose. Plaintiffs expert in aquatic safety, Ralph L. Johnson, Ph.D, opined that Taylor experienced an “active drowning,” whereby he became entangled in the lake weeds, which caused him to panic below the water surface, struggle a great deal, and “suck[] water like crazy.” Although Taylor had also been diagnosed with syncope, a physical condition that causes fainting spells, neither Johnson nor the medical examiner, Dr. Patrick Cho, M.D., believed that this condition contributed to Taylor’s drowning.
Plaintiff filed this action against defendant for negligence. Plaintiff alleged that Taylor drowned as a result of becoming entangled in the lake weeds in Lake Linda, and that defendant was aware of the hazardous lake weeds and did nothing to alleviate the dangerous condition or to warn swimmers of the potential danger. As relevant to these appeals, defendant filed two motions for summary disposition under MCR 2.116(C)(4) and (C)(10), respectively, asserting that plaintiffs action was barred by the exclusive remedy provision of the WDCA, MCL 418.131(1), and that plaintiffs action was barred by the recreational land use act (RUA), MCL 324.73301(1), because Taylor was engaged in the recreational activity of swimming at the time of his drowning death. Defendant also argued that plaintiff could not establish a triable issue of fact regarding causation because plaintiffs theory that Taylor drowned after becoming entangled in the lake weeds was based solely on speculation, which is insufficient to establish a question of fact. The trial court disagreed with defendant on all of these issues, and thus denied defendant’s motions for summary disposition. As noted, this Court granted defendant’s two applications for leave to appeal and consolidated the cases.
II. EXCLUSIVE REMEDY
We first consider defendant’s argument that the trial court erred by holding that the exclusive remedy provision of the WDCA did not apply to bar plaintiff’s action. We agree that defendant was entitled to summary disposition on this ground.
“We review de novo a trial court’s decision on a motion for summary disposition.” O’Leary v O’Leary, 321 Mich.App. 647, 651; 909 N.W.2d 518 (2017). Summary disposition is appropriate under MCR 2.116(C)(4) if the trial court does not have jurisdiction over the subject matter. Petersen Fin LLC v Kentwood, 326 Mich.App. 433, 441; 928 N.W.2d 245 (2018). If the facts are not in dispute, the issue of whether a plaintiff’s injury arose out of and in the course of employment under MCL 418.301(1) is a question of law reviewed de novo. See Smith v Chrysler Group, LLC, 331 Mich.App. 492, 496; 954 N.W.2d 214 (2020).
It is undisputed that, at the time of Taylor’s drowning, he was attempting to secure a wayward paddleboat for defendant, his employer. MCL 418.301 provides, in pertinent part:
(1) An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. . . .
* * *
(3) An employee going to or from his or her work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act.
MCL 418.131(1) further provides that “[t]he right to the recovery of benefits as provided in [the WDCA] shall be the employee’s exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort.” Under MCL 418.131(3), however, an injury is not covered by the WDCA if it was incurred “in the pursuit of an activity the major purpose of which is social or recreational.”
In Eversman v Concrete Cutting & Breaking, 463 Mich. 86, 95; 614 N.W.2d 862 (2000), our Supreme Court explained that in applying “the social or recreational test” of MCL 418.301(3), a court “must consider the major purpose of the activity in which the plaintiff was engaged at the time of the injury.” See also Buitendorp v Swiss Valley, Inc, 485 Mich. 879; 772 N.W.2d 50 (2009) (holding that “the major purpose of the plaintiff’s activity at the time of injury determines whether the social or recreational bar [of MCL 418.301(3)] applies”). In considering this question, the court is required to examine “the totality of the circumstances.” Eversman, 463 Mich. at 96. In the present case, the evidence demonstrated that Taylor had finished his work and went fishing while waiting for his parents to pick him up from work, but then decided to swim out to a wayward paddleboat to return it to the dock, which was one of his employment responsibilities. Taylor’s time card reflected that he began work on June 12, 2016, at 12:58 p.m. and clocked out at 8:04 p.m. Two witnesses confirmed that Taylor was fishing with them off the dock, and they last saw Taylor at approximately 8:49 p.m., when they left the dock to go fish by a nearby bridge. The Richfield Township Police Department was dispatched to the scene at 9:45 p.m. Taylor spoke to his mother on the telephone and told her that he planned to retrieve a paddleboat that had floated away from the dock.
Because Taylor was on defendant’s grounds within a reasonable time after his working hours, he is presumed to have been in the course of his employment under MCL 418.301(3). Additionally, under “the social and recreational test” set forth in Eversman, at the time of his drowning, Taylor was attempting to bring into shore a paddleboat that had drifted away. Because the evidence is clear that the “major purpose” of this activity was to perform a task for his employer, it is not subject to the social or recreational bar of MCL 418.301(3). Eversman, 463 Mich. at 95. Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor’s drowning death. Accordingly, the trial court erred by holding that the exclusive remedy provision does not bar plaintiffs negligence claim against defendant.
The present case is distinguishable from Nock v M & G Convoy, Inc (On Remand), 204 Mich.App. 116; 514 N.W.2d 200 (1994), which is cited in Eversman. In Nock, the plaintiff truck driver, after making deliveries for his employer to several cities in Ohio, arrived in Detroit and, while at a Detroit bar, was attacked by another patron with a pool cue and lost an eye. Id. at 118. This Court agreed that under the version of MCL 418.301(3) in effect at that time, “the major purpose” of the plaintiffs patronage at the bar was both social and recreational, and therefore, his injuries were not compensable under the WDCA. Id. at 121. In contrast, Taylor was on defendant’s grounds a short time after his work hours with defendant had ended and, although he was engaged in the social activity of fishing in Lake Linda while waiting for his parents to pick him up, he stopped that activity and was engaged in an effort to secure a wayward paddleboat for defendant at the time he drowned. Under these circumstances, the major purpose of Taylor’s activity at the time of drowning was not social or recreational, and his injuries are presumed to have arisen out of and during the course of his employment. Therefore, the exclusive remedy provision of the WDCA is applicable.[2]
III. CONCLUSION
We reverse the trial court’s ruling that the exclusive remedy provision of the WDCA is not applicable. At the time of his drowning death, Taylor was on defendant’s grounds performing a task for defendant, his employer, within a reasonable time after his working hours. Thus, he is presumed to have been in the course of his employment and he was not engaged in an activity the major purpose of which was social or recreational. MCL 418.301(1), (3). Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor’s drowning death, and the trial court lacked jurisdiction over this case. We accordingly remand to the trial court for entry of summary disposition in favor of defendant. We do not retain jurisdiction
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Notes:
[1] In Docket No. 355035, defendant appeals by leave granted the trial court’s September 16, 2020 order denying its motion for summary disposition under MCR 2.116(C)(4). Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket No. 355035). In Docket No. 355036, defendant appeals by leave granted the trial court’s June 29, 2020 order denying its motion for summary disposition under MCR 2.116(C)(10). Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket No. 355036). We consolidated the cases “to advance the efficient administration of the appellate process.” Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered January 20, 2021 (Docket Nos. 355035 & 335036).
[2] Having so concluded, we need not reach defendant’s alternate arguments for reversal.
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Stupid Stunt or Real thing?
Posted: January 14, 2022 Filed under: Uncategorized | Tags: Airplane, Cessna, crash, Self Stick, Stunt Leave a commentState: California
I’m a pilot (former). The only time I wore a parachute was if I was in an acrobatic airplane. I did not wear an altimeter. It was not required when leaving a rock falling from the sky. Get out and pull the cord where the instructions I was given. I’ve landed twice without an engine. After surviving both landings I’ve never had any thought of leaving an airplane with two wings and a working tail.
In this case, a snowboarder was flying an older (1942?) Cessna, based on the photographs, with a parachute and altimeter. While over the mountains, he experienced engine trouble and bailed, all why videotaping himself.
An Instagram user spotted several issues with the video and posted them in the article. My favorite one is while bailing out of a “disabled”” aircraft’” the pilot remembered his selfie stick.
One of the first things you learn when you take pilot training is how to restart an engine that has quit. You also learn how to fly an engine that is not at full power to limp back to an airfield or at least someplace safer to land. Leaving an aircraft is the last thing you would do, and you are never taught that.
Besides having cameras on the plane, he landed close enough to the crash site to retrieve the videos.
Why Is This Interesting?
Is this real or a stunt? If it is a stunt, should the idiot do jail time?
Watch the video and let me know what you think?
#Stunt #StupidStunt @RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry
Who am I
Jim Moss
I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry
I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses
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
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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,
As hunting declines, money for other wildlife, parks & outdoor spaces will also
Posted: January 5, 2022 Filed under: Uncategorized | Tags: Fishing, hunting, Hunting Revenue, Non-Game Wildlife, Revenue, Wildlife Leave a commentState: Idaho
Research, preservation and recreation around wildlife that is not hunted are paid for by hunting. Hunting is declining and so is fishing, although not as much.
As those sports decline the money available for outdoor recreation based on viewing wildlife is going to disappear.
How are we going to fund non-game wildlife in the future?
@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry
Who am I
Jim Moss
I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry
I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses
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
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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,
Why waste the time & money and the anguish to the family to have a trial knowing you won’t collect a dime? Because Lawyers of Egos
Posted: December 22, 2021 Filed under: Uncategorized | Tags: Judgment, Lawsuit, Litigation, Trial Leave a commentState: Texas
A group of lawyers sued a defunct bar and received a judgment for $301 billion dollars. The lawyers admitted they won’t get a dime.
Why would you do that? Why would you put the family through that hell?
I do not know. You could have accomplished everything by a motion.
The only thing I can guess is it makes better press?
Why Is This Interesting?
Because it is a total waste of time and worse, it puts the family through additional pain and suffering.
@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,
Lawsuit filed to stop required overtime payments for outdoor Guide Companies
Posted: December 17, 2021 Filed under: Uncategorized | Tags: Arkansas River, Concessionaire; Overtime, Lawsuit, Litigation, Permittee, Wage & Hour Laws, Wage & Hour Regulations 11 CommentsState: Federal
Three Arkansas River Rafting Company owners have sued the federal government over new hourly wage laws. On any outdoor trip, rafting, mountaineering, even mountain biking a guide works long hours. Most guides work 12 and some days a lot more hours in a day. The new regulations would require those guides to be paid time & ½ for every hour after eight hours.
For an outfitter working under a federal permit or concession agreement, as a federal sub-contractor, they must now pay a guide for those extra hours. Since employee costs are the biggest expenses for most outfitters, that this going to price a lot of trips out of 90% of their customers’ ability to pay.
Guides also get fed while on trips, so there are some deductions for those costs in some cases, but not much. Guides are also usually paid a flat fee for the day. A guide paid $100 for an 8-hour day is now going to get a pay raise to the minimum wage at 1.5 times per hour. If a state’s minimum wage is $12 per hour, the guide for each hour after eight will be getting $18 an hour. And that will usually be another 4 or more hours. On a five-day trip that could be as much as another days pay at time and a half, if not more.
Probably, instead of helping guides, it will put a lot of them out of business. The cost of a trip will be so high; the number of trips will decrease, putting guides out of work.
With fewer trips, a lot of outfitters will also struggle. Multi day trip numbers have been declining over the years. Fewer people take the time to have a 3-5-day trip away from phones.
Mistake 1: For the three outfitters starting this lawsuit, they and their fellow permittees pushed so hard to have the Arkansas River become a National Monument, thinking it would increase the value of their permits; it has not, and has come back to haunt them, as many people predicted.
Why Is This Interesting?
Honestly, other than a few rivers such as the Grand Canyon that are only taking the upper class as guests anyway, this will destroy guided trips across the board. Outfitters do not make enough money on a trip to pay wages this high.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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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 https://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: 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: 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: 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: 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: Uncategorized 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,
Hand Wash Stations
Posted: September 15, 2020 Filed under: Uncategorized | Tags: Boy Scouts of America, Denver Area Council, Hand Wash Stations 1 Comment
Hand Washing Practices
Participants must wash their hands:
Before eating or preparing food
Before touching your face
After using the restroom
After leaving a public place
After blowing your nose, coughing, or sneezing
After handling your mask
After changing a diaper
After caring for someone sick
After touching animals or pets
Moving from one activity or station to the next
Upon getting up 1st thing in the morning.
A hand wash station is a location with water and soap available for participants to wash their hands. This can be a regular restroom or a unit based on plans here. If the hand wash station is a regular restroom, disposable towels must be available for the participants to dry their hands.
Events should have one hand washing station for each activity area and several for any meal areas. Each unit should have one per every 12 participants.
Unit based hand washing stations
This link goes to hand wash stations sold by Downriver Equipment company: https://www.downriverequip.com/camping/kitchen/down-river-equipment/down-river-hand-wash-station-pid-1954
A unit or even can make their own for about $40. Here is an example: https://www.amazon.com/Tye-Works-Standard-System-Sanitation/dp/B007QUJ7B0?ref_=fsclp_pl_dp_2
Instead of the attachment on the bucket with a fancy attachment system just duct tape the tube to a Spring Claim and clamp it to the bucket. https://www.homedepot.com/p/ANVIL-2-in-Spring-Clamp-99691/302755764
2 bucket Hand Wash Station. Clean water comes out by pump (foot action), and dirty water goes into the bucket. This also conservers water. You have to pump to get water. Get hands wet, soap without water, then rinse with water. If you put water jugs up high for people, they turn the water on and let it run when they wash their hands. This also cross contaminates by turning the water on and off. Dirty water needs to flow into the dirty water bucket to not damage the environment.
Pumping the water with your foot allows for less water loss, and you only use the water you need. No cross contamination.
I would suggest when we fill up the clean water buckets with new water you add a few drops of chlorine to double kill anything that might be in the water or get contaminated out in the field unless you are using portable water.
Assign one person with a truck or golf cart who runs around and refill’s water and soap. Dependent on our situation the dirty water can be dumped or collected. If dumped, dumped 100′ away from the hand wash station, or it becomes a muddy mess.
Instead of an aluminum pump holder, you just use tube straps on a piece of wood or rubber mat. It keeps the pump flat and easy to access: https://www.homedepot.com/p/Oatey-1-1-2-in-Galvanized-Tube-Strap-2-Hole-33500/303434697
Water hose only needs to 1/8″ or ¼”
Cheap, easy, extremely portable, you can put all the contents in one bucket and slide one bucket into the next. Make them part of your units camping equipment.
If you want to get fancy, by half the buckets with lids and cut a hole in the side for the tubing. It puts the hand wash up a little higher as one bucket sits on the lid of the other bucket.
You can just put the soap on the ground or hand one from the side rubber banded to something that hooks on the bucket.
Mandatory Warning Sign
Posted: September 15, 2020 Filed under: Uncategorized | Tags: Boy Scouts of America, Covid 19, Denver Area Council, Warning sign Leave a commentDownload the sign here as a pdf: Warning Sign
Restatement 2d of Torts, § 302
Posted: July 30, 2020 Filed under: Uncategorized Leave a comment
Restatement 2d of Torts, § 302
§ 302Risk of Direct or Indirect Harm
A negligent act or omission may be one which involves an unreasonable risk of harm to another through either
(a) the continuous operation of a force started or continued by the act or omission, or
(b) the foreseeable action of the other, a third person, an animal, or a force of nature.
COMMENTS & ILLUSTRATIONS
Comment:
a. This Section is concerned only with the negligent character of the actor’s conduct, and not with his duty to avoid the unreasonable risk. In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act. The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between the actor and the other which gives rise to the duty. As to the distinction between act and omission, or “misfeasance” and “non-feasance,” see § 314 and Comments. If the actor is under no duty to the other to act, his failure to do so may be negligent conduct within the rule stated in this Section, but it does not subject him to liability, because of the absence of duty.
b. A special application of Clause (b) of this Section, involving the risk of harm through the negligent or reckless conduct of others, is stated in § 302 A. A second special application of Clause (b), involving the risk of the intentional or criminal conduct of others, is stated in § 302 B.
c. The actor may be negligent in setting in motion a force the continuous operation of which, without the intervention of other forces or causes, results in harm to the other. He may likewise be negligent in failing to control a force already in operation from other causes, or to prevent harm to another resulting from it. Such continuous operation of a force set in motion by the actor, or of a force which he fails to control, is commonly called “direct causation” by the courts, and very often the question is considered as if it were one of the mechanism of the causal sequence. In many instances, at least, the same problem may be more effectively dealt with as a matter of the negligence of the actor in the light of the risk created.
Illustrations:
1. A sets a fire on his own land, with a strong wind blowing toward B’s house. Without any other negligence on the part of A, the fire escapes from A’s land and burns down B’s house. A may be found to be negligent toward B in setting the fire.
2. A discovers on his land a fire originating from some unknown source. Although there is a strong wind blowing toward B’s house, A makes no effort to control the fire. It spreads to B’s land and destroys B’s house. A may be found to be negligent toward B in failing to control the fire.
D. Probability of intervening action. If the actor’s conduct has created or continued a situation which is harmless if left to itself but is capable of being made dangerous to others by some subsequent action of a human being or animal or the subsequent operation of a natural force, the actor’s negligence depends upon whether he as a reasonable man should recognize such action or operation as probable. The actor as a reasonable man is required to know the habits and propensities of human beings and animals and the normal operation of natural forces in the locality in which he has intentionally created such a situation or in which he knows or should realize that his conduct is likely to create such a situation. (See § 290.) In so far as such knowledge would lead the actor as a reasonable man to recognize a particular action of a human being or animal or a particular operation of a natural force as customary or normal, the actor is required to anticipate and provide against it. The actor is negligent if he intentionally creates a situation, or if his conduct involves a risk of creating a situation, which he should realize as likely to be dangerous to others in the event of such customary or normal act or operation. (See § 303.)
e. Meaning of “normal.” The actor as a reasonable man is required to anticipate and provide against the normal operation of natural forces. And here the word “normal” is used to describe not only those forces which are constantly and habitually operating but also those forces which operate periodically or with a certain degree of frequency.
Illustration:
1. A erects a swinging sign over the highway. He is required to keep it in such condition that it will not be blown down, not only by the ordinary breezes which are of everyday occurrence, but also by the gales which experience shows are likely to occur from time to time.
f. Normal conditions of nature. As stated in § 290, Comments g and h, the actor is required to recognize the fact that a certain number of animals and human beings may act in a way which is not customary for ordinary individuals, and that there are occasional operations of natural forces which are radically different from the normal. It would, however, be impracticable to set a standard of behavior so high as to require every man under all circumstances to take into account the chance of these exceptional actions and operations. Therefore, except where the actor has reason to except the contrary, he is entitled to assume that human beings and animals will act and the natural forces will operate in their usual manner, unless their exceptional action or operation would create a serious chance of grave harm to some valuable interest and there is little utility in the actor’s conduct. Thus a motorist driving along a highway is entitled to assume, unless he has special reason to expect the contrary, that other motorists will keep to the right side of the road, since motor traffic would be unduly hindered unless motorists were free to act on that assumption. On the other hand, a motorist approaching a railroad crossing is not entitled to assume that the railway company will comply with its duty to blow the whistle and ring the bell, but is required to take very great precautions to look out for trains which have not given such notice of their approach.
g. Abnormal conditions of nature. The actor is not required to anticipate or provide against conditions of nature or the operation of natural forces which are of so unusual a character that the burden of providing for them would be out of all proportion to the chance of their existence or operation and the risk of harm to others involved in their possible existence or operation. It is therefore not necessary that a particular operation of the natural force be unprecedented. The likelihood of its recurrence may be so slight that in the aggregate the burden of constantly providing against it would be out of all proportion great as compared with the magnitude of the risk involved in the possibility of its recurrence.
Illustration:
1. In 1938 a hurricane caused serious damage in a city in New England. There is no record of any hurricane of similar force within the preceding 130 years. A, thereafter constructing a building in the city in question, is not negligent in failing to adopt an expensive method of construction which would make it safe against damage from a similar hurricane.
2. The same facts as in Illustration 4, with the additional fact that by 1957 hurricanes of similar violence have recurred four times in New England. A, constructing a building in 1957, may be found to be negligent in failing to adopt a method of construction which would make it safe against such hurricanes.
h. If the actor knows or should perceive circumstances which would lead a reasonable man to expect a particular operation of a natural force, he is required to provide against it, although, but for such circumstances, it would be so extraordinary that he would be entitled to ignore the possibility of its occurrence.
Illustration:
1. A moors his boat in a river fed by mountain streams. The moorings are sufficient to prevent the boat from being cast adrift by any stage of water likely to occur at that season of the year. A sudden cloudburst in the mountain causes an extraordinary flood which sweeps his boat away, causing it to collide with the boat of B. A may be found to be negligent if he has or should have such knowledge of the occurrence of the cloudburst as to give him reason to expect the unusual and otherwise unforeseeable flood.
i. Action of domestic animals. The actor as a reasonable man is both entitled to assume and required to expect that domestic animals will act in accordance with the nature of such animals as a class, unless he knows or should know of some circumstances which should warn him that the particular animal is likely to act in a different manner.
j. Action of human beings. As stated in § 290, the actor is required to know the common qualities and habits of other human beings, in so far as they are a matter of common knowledge in the community. The actor may have special knowledge of the qualities or habits of a particular individual, over and above the minimum which he is required to know. His act or omission may be negligent because it involves an unreasonable risk of harm to another through the intervention of conduct on the part of the other, or of third persons, which a reasonable man in the actor’s position would anticipate and guard against. As to the actor’s negligence where such foreseeable conduct is itself negligent, see § 302 A. As to his negligence where the foreseeable conduct is intentional or criminal, see § 302 B.
REPORTER’S NOTES
This Section has been changed from the first Restatement by rewording it to include negligent omissions as well as acts. The original Comments j to n inclusive, with the accompanying Illustrations, have been shifted to Sections 302 A and 302 B, which involve special applications of the rule stated in this Section.
Restatement of the Law, Second, Torts
Copyright (c) 1965, The American Law Institute
Creating Your Risk Management Plan
Posted: May 7, 2020 Filed under: Uncategorized | Tags: Emergency, Emergency Action Plans, Emergency Plans, Outdoor Recreation Risk Management, Outdoor Risk Management, Risk Management, risk management plan, Risk Management Plans 2 CommentsEveryone tells you, you must have a Risk Management Plan. One of the first things a plaintiff is going to look at in a lawsuit is a Risk Management plan. So we have a document that is a two-edged sword to help and possibly hurt your business. What do you do?
Risk management plans or Emergency Action Plans, Emergency Response Plans, or many others such as names, are put together as procedures to follow when you have a problem. People expect you to have a Risk Management plan and people expect you to follow your Risk Management plan. Failing to follow your Risk Management plan can create liability for your business.
The first problem is, during an emergency, you don’t have time to run get the book and see what to do next.
A Risk Management Plan must:
- Work
- Be Understood
- Not come back to haunt you.
Your front line employees will not know or remember a complicated Risk Management plan. They need to either be able to reference or respond with very few steps. Your front-line employees are also going to be the face of your Risk Management plan because they will be the ones to discover the problem and start to implement the plan.
Risk Management plans developed and understood by management are job security, not litigation prevention programs.
A Risk Management plan is not a management-level plan. It is a plan for the people who will be using it. Those employees making the phone calls, dealing with the problems and helping the victims are the people who must know and be able to execute the plan.
The next major issue I find with Risk Management plans is, the plan is written to cover every possible scenario. If you start today when you sell your business or retire you still won’t be done writing down everything that can go wrong with your business. Once you get that type of plan done, the emergency will be over or your business will no longer exist by the time you find the solution or response in your plan.
Write a plan that works so you can enjoy your work, not an anchor that drags you down each day.
As soon as you start writing your Risk Management plan you need to start editing and updating your plan.
As an example: You write a plan based on employees who have been with you for a while, you trust and can respond to about everything the correct way. A couple of years later, you have new employees who have no idea what to do. Your Risk Management plan has to be written to work with both types of employees.
State and Federal regulations are going to change; your insurance is going to change, and you are going to change. Consequently, your Risk Management plan must be flexible enough to work, without being re-written, to deal with changes, If not you’ll never leave your office, you’ll just be constantly dealing with changes to the plan, let alone ever dealing with an emergency.
When has “Business as Usual” actually been true in your business?
- The biggest failure of a Risk Management plan is they are too complicated and consequently, only the person who wrote the plan can follow it. Your plan must work for your employees; Not your risk manager, your lawyer or your insurance and never just for your industry.
- Write your plan to be used, not to be a way to use your imagination about what could possibly go wrong.
- You cannot write a plan that covers every scenario. If you could it would occupy one entire wall of your office in three Ring Binders.
And even then you plan will not cover everything. So why waste the time, energy and money in trying to write a plan that covers everything. You can’t. Inevitably, it is not going to cover the problem that you are having. It just seems to work that way.
I’ve yet to see a Risk Management plan that was written to cover the emergency that actually occurred.
You need a plan that:
- Can be remembered and executed by all your employees.
- Each employee’s part of the plan can be easily carried with them for reference.
- The employee has access to and the information necessary to communicate the need for the plan and their responsibilities under the plan.
- The plan works for every incident possible.
Consequently:
-
Your plan for the front-line employees should fit on a 3X5 card on one side’
- The other side of the plan has phone numbers of the people that employee is supposed to contact to activate the plan (or radio channels).
- The other side of the plan has phone numbers of the people that employee is supposed to contact to activate the plan (or radio channels).
- The only person who may have more of a plan than on a 3X5 card is going to be the person at the top to work on follow up.
- Basically, an employee’s plan is going to be stop the bleeding, stabilize, call 911, and call the supervisor.
- Your plan must be something that can be executed without referring to anything for more than 30 seconds.
Your Risk Management plan must be written by your company, which means every person in the company, understood by every person and executable by everyone. Anything more is just going to be ignored when EMS, USFS or any other responding agency comes on the scene but used against you in court.
I love Risk Management plans written by management. They train employees in the plan, with the employees wondering if the people writing the plan have ever seen the work they do. Risk management plans need to be dirty because the people who have to follow the plans should be writing them, and they don’t have an office to keep the plan clean.
Risk Management Plans only work if the people executing the Plan Know How to Work.
Quit writing and re-writing your plan and start training your employees on what to do if something does not go as planned.
Score 1 Point for Each Correct Answer
- You have a Risk Management Plan.
- Employees know there is a Risk Management Plan.
- The Employees know the Risk Management Plan.
- Employees know their position & responsibility in the Risk Management Plan.
- Employees know the responsibilities of the person above and below them in the Risk Management Plan.
- The Employees carry their responsibilities in the Risk Management Plan with them.
- The Employees carry with them all information they need to communicate if there is a problem to the necessary people in the Risk Management Plan.
- The Risk Management Plan has been updated in the past 12 months.
- The Employees have been trained in the Risk Management Plan in the past 12 months.
- A mock disaster has been held using the Risk Management Plan.
- You have identified a team to deal with the human issues of an incident after the incident is under control.
- Senior Managers have gone through the same training and drills as the employees.
- You have not had to use the Risk Management Plan.
Grading your plan!
0-1 Point: Lock the doors and go home now.
2-5 Points: Prepare to lose a lawsuit
6-9 Points Good, but you can do better.
10-12 Points Not bad! Impressive
13 Points Excellent
Your score is important; however, it may not be the biggest issue you face you’re your Risk Management plan. The biggest problem facing outdoor recreation and adventure travel businesses is not the issue of having a plan. It is creating a plan that is workable, able to be used by employees and one that will NOT haunt you later.
Risk Management is education, not paperwork!
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,
Why you should always be a member of the trade association that represents the activity you provide?
Posted: April 23, 2020 Filed under: Uncategorized | Tags: Association, Busienss Help, Business Ideas, Conference, Improving your business, Trade Associaiton, Trade Association Conference, Trade Group Leave a commentTrade associations should keep you informed and help you promote your business, much more and there are many traps for the unwary.
Trade associations cost money, take time and eventually will want you to step up and volunteer more time and money. However, every time it will be worth it.
What are the benefits of being a member of a trade association?
- Savings. The savings can be from a better discount on your credit card processing, insurance or buying equipment. These discounts alone usually pay for your membership each year.
- Knowledge: There is a lot to be learned every month from trade association newsletters and websites. Why make the same mistakes of everyone else who started before you?
- Education: The annual conference of most trade associations is usually full of speakers who can provide a ton of education for your business.
- Inside Tips: The hallways, bars and restaurants are the best education you will receive in your business. You will gain knowledge, insight and friendship. Not only will you learn the best way of taking care of your equipment buy you might make a friend who you can borrow equipment from when yours goes down.
- Friendship: We all need someone who can answer a tough question or just lift up your spirits on a bad day. That person who understands the issues you are facing who might be across the continent or the world could be that person. You’ll never find them online, but you might sit next to them at a trade association conference.
- Regulation: No business is free from government regulation. Helping you understand the regulations you are dealing with every day and more importantly keeping you aware of what is coming down the legislature or bureaucratic pipeline is critical to your survival.
- Fun: Attending a trade association conference is fun. They are not all work.
- Staying current with the law: Some trade associations try to create standards for an industry. Stay away from them. The standards are used by the plaintiffs to sue you more than anything else. However, you need to attend your trades association conference to make sure you are keeping current with the industry. At a conference, you’ll learn what works and what doesn’t work and new ideas on improving your business. Those things all work to raise the standard in the industry, and if you do not know them, you will be left behind in business and in court.
The more you become involved, meetings you attend, conferences you attend, the more you will get out of your membership. Serving on a committee or on the board is time-consuming and might be costly, but you will be put in a position to take the best advantage of the benefits the association has to offer and the education the association holds.
One note of caution: Be wary of associations that believe they are the one and only, that they can tell you how to run your business or over promise and always under deliver. Always be weary of associations that have a bigger budget from other sources other than membership and conferences. They become self-serving organizations.
Running an educational or insurance business is a great way for an association to create more funds. Using the educational or insurance business to create membership or influence the industry is doomed from the start. None succeed over time, many taking the association down when the business fails.
Do Something
Find, learn and join trade associations that can help you with your business.
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,
Starting Your Outdoor Recreation Business: Entities and Taxation
Posted: April 16, 2020 Filed under: Uncategorized | Tags: Business Association, Business Trust, C-Corp, Cooperative, Corporation, EIN, FLP, joint venture, Limiated Liability Limited Partnership, Limited liability company, Limited Partnership, LLC., LLLP, LP, Non-Profit, Non-Profit Corporation, Partnership, S-Corp, Sub S Corp, Sub-S, TIN, Trust, Unincorporated Association Leave a commentChoosing and Creating the Right Entity for Your Business
Starting any business now days you should create an entity, corporation, limited liability company, partnership, joint venture or trust to run the business. This helps your accounting, provides you greater tax options and protects your personal assets from a creditor. A creditor can mean someone you owe money to or an injured guest who is suing you.
Protecting your personal assets is probably the most important item on the list followed closely by how you want any profits taxed to you and/or to the entity.
The type of entity you want to create is different in many cases from the way it is to be taxed. The most confusing is Corporations, and Limited Liability Companies taxed as a Sub-S corporation. Everyone always speaks of a Sub-S Corp or S-Corp. However, no such thing exists. If you go to any Secretary of State’s website to create your new entity, you will not see Sub-S listed as an option.
Sub-S is not a type of entity. Sub-S is a way an entity is taxed. You hear people say they have a Sub-S corporation they are referring to the way their entity is taxed not the type of entity. There is no such thing as a Sub-S corporation. There are corporations and limited liability companies that are taxed as under 26 U.S. Code Chapter 1, Subchapter S of the Internal Revenue Code.
If you listen solely to your CPA, if they are not up to date, they will create a regular corporation or (C-Corp) and file it with the IRS as a Sub-S for tax purposes creating liability nightmares for you later. (That is the first reason why you should not have a CPA providing legal advice, besides it is illegal.) Besides, the IRS issued a ruling almost a decade ago that allows a Limited Liability Company (LLC) to be taxed as a Sub-S corp.
Below are various charts to help you understand what entity can do, how much work and cost are involved, how much protection and how that entity can be taxed.
| Entity Name |
Ways it can be taxed |
Restrictions |
Rating |
| Corporation | Corporation |
5 |
|
| Sub-S | Must file with IRS & meet restrictions Filing must be done within 60 days of creation. Once filed it is difficult to undo. Sub-S also has restrictions on ownership. |
5 |
|
| Non-Profit Corporation | Non Profit Corporation | Requires IRS application to receive non-profit status | 8 |
| Partnership | Partnership | 1 | |
| Limited Liability Company | Sole Proprietor | Must be indicated on EIN & LLC documents | 10 |
| Partnership | Must be indicated on EIN & LLC documents | 2 | |
| Corporation | Must be indicated on EIN & LLC documents | 8 | |
| Sub-S | Must file with IRS & meet restrictions. (See Above) | 10 | |
| Limited Partnership | Partnership | 6 | |
| Limited Liability Limited Partnership (FLP) | Partnership | Expensive and a lot of paperwork each year, however the most effective entity to protect assets | 10 |
| Entities not created by Application to the State (most states) (Therefore taxed as one of the entities above) |
|||
| Joint Venture | Determined by the taxation of the parties to the Joint Venture | a contractual joint venture
a joint venture partnership a joint venture company |
3 |
| Cooperative | Created by Contract | 2 | |
| Unincorporated Association | Recognized in Some states | 1 | |
| Business Trust | Usually taxed as a Corporation, sometimes as a trust | 5 | |
| Business Association | Can be taxed as a partnership or a non-profit organization | 4 | |
Another big issue is the difficulty in keeping the entity current, the paperwork updated and to make sure you have the required meetings.
| Entity Name |
Amount of Paperwork |
Rating |
| Corporation | Requires annual shareholder meetings and at least quarterly board meetings. All meetings must have agendas and corporate minutes. Formalities of creation and running the corporation are strict and failure to do so may result in the corporation being dissolved by the courts. |
5 |
| Non-Profit Corporation | Requires annual shareholder meetings and at least quarterly board meetings. All meetings must have agendas and corporate minutes. Formalities of creation and running the corporation are strict and failure to do so may result in the corporation being dissolved by the courts. |
5 |
| Partnership | Every partner is equally liable for any liability of the partnership or another partner. Extremely difficult to dissolve or leave partnership unless partnership agreement provides clear exit structure. |
4 |
| Limited Liability Company | High amount of protection with the least amount of corporation formalities. Annual update with the Secretary of State is required and a yearly meeting with minutes is recommended. |
9 |
| Limited Partnership | Initial Partnership Agreement is critical. After that the paperwork is minimal. |
7 |
| Limited Liability Limited Partnership (FLP) | Creation paperwork is critical and requires several different types of entities, such as LLC’s to also be created so the paperwork burden is massive. After that the paperwork burden does not decrease much. Each entity must be kept up to date and the relationship of the entities must be created by contract. |
4 |
| Entities not created by Application to the State (most states) (Therefore taxed as one of the entities above) |
||
| Joint Venture | The initial paperwork is critical. After that it is minimal. Joint ventures are usually for a short duration |
6 |
| Cooperative | The organization agreement is minimal, the members of the cooperative run the co-op and these meetings are important |
5 |
| Unincorporated Association | Usually there is no paperwork and no protection. |
8 |
| Business Trust | A business trust is the predecessor the modern corporation. The trust must be set up with care to qualify under state and federal law (IRS) to run a business. Rarely used now days, but appropriate in the right circumstances |
4 |
| Business Association | Rare and all based on the paperwork |
2 |
What is not reviewed above is running your business as a sole proprietor. There is no paperwork, little accounting and no liability protection. Your tax options are also limited; you are taxed as a sole proprietor. Because it provides no protection, no tax benefits and little value for any other reason, it is not considered an effective way to run a business.
Obviously the best choice now days is an LLC. It can be taxed a multitude of different ways and provides the greatest asset defense for the money with the least amount of paperwork.
The best option is the Limited Liability Limited Partnership; however, you will need to work with an attorney as long as the LLLP is holding assets. Each entity within the LLLP must be properly created and have the correct agreements for the running of that entity and its relationship to the other entities and the LLLP. However, it is virtually impervious to litigation or claims. The problem is the initial costs can be $20,000 and running the LLP can be $5,000 to $10,000 a year in additional legal and accounting fees.
Paperwork
Make sure you complete all the paperwork required to be an entity in the state where you entity was created. That is not just the filing with the Secretary of State. Failure to have the additional paperwork can mean your entity is void. Creditors will go through all of your entity documents and use what you are missing proving your entity is just a sham and close you down.
| Entity Name |
Type of Paperwork |
| Corporation | Articles of Incorporation
Bylaws Notices of Shareholder meetings Notices of Board of Director Meetings Minutes of Shareholder Meetings Minutes of Board of Directors meetings Board Resolutions Pre-Incorporation Agreement Consent of Incorporators Stock Ledger S-corporation election (if that is the preferred tax method) Stock Purchase Agreements Shareholder voting Agreements Special Meeting Notices Waiver of Shareholder Notices Waiver of Shareholder Meeting Not Mandatory but Important Buy/Sell Agreement Stock Sale Restriction Agreement |
| Non-Profit Corporation | Articles of Incorporation
Bylaws Notices of Shareholder meetings Notices of Board of Director Meetings Minutes of Shareholder Meetings Minutes of Board of Directors meetings Board Resolutions Pre-Incorporation Agreement Consent of Incorporators Stock Ledger S-corporation election (if that is the preferred tax method) Stock Purchase Agreements Shareholder voting Agreements Special Meeting Notices Waiver of Shareholder Notices Waiver of Shareholder Meeting Not Mandatory but Important Buy/Sell Agreement Stock Sale Restriction Agreement Closely Held Corporation Agreement |
| Partnership | No paper work is required. However operating a partnership without a partnership agreement that sets forth accounting and exit or dissolution issues can create legal and accounting nightmares. |
| Limited Liability Company | Articles of Organization
Operating Agreement Minutes of Annual Meeting Not Mandatory but Important Buy/Sell Agreement Stock Sale Restriction Agreement |
| Limited Partnership | Initial Partnership Agreement is critical. After that the paperwork is minimal. |
| Limited Liability Limited Partnership (FLP) | LLLP Agreement
Agreement to create LLLP LLC Paperwork Paperwork transferring assets in to LLP Minutes of Annual Meeting Contracts for managing all entities owned by the LLLP Contracts for the operation and management of the LLLP Proper Paperwork for all entities owned by LLLP |
| Entities not created by Application to the State (most states) (Therefore taxed as one of the entities above) |
|
| Joint Venture | Joint venture Agreement |
| Cooperative | Cooperative Agreement |
| Unincorporated Association | |
| Business Trust | Trust Agreement
The trustee will want to keep meticulous notes and copies of all communications with third parties, assets and beneficiaries of the trust |
| Business Association | Rare and all based on the paperwork |
Where should you incorporate.
For decades, everyone wanted to incorporate in Delaware, then Nevada and now day’s South Dakota. Until you can hire an attorney in each of the states where you have an entity, or you want to take your company public, it is not worth the time and money. The cost of putting together and running an LLC in the state where you are doing business can be Ten Percent of the cost of running an LLC in another state.
There is nothing that says after your LLC is up and booming you cannot move it to another state. However, a better idea is to have another entity created in the state where you want to be, own the initial LLC. An example of that is Google was created but is now owned by the Alphabet Corporation. Your LLC can be started in Colorado and when you want to go public, you create a Delaware Corporation which owns the LLC.
Don’t spend $5,000 now to create an entity in a state for something that may happen ten or twenty years from now.
Foreign business wanting to do business in the US.
If you based outside of the US, the information above is no different for you, then it is for a US based business. Create an entity where your business is located or where your attorney is located. That will probably be an LLC that is owned by the entity that you have in your home country. You will have to acquire a Tax Identification Number (TIN or Employer Identification Number (EIN) which are different phrases for the same IRS number).
Once you acquire a TIN you can then open a US bank account to do business.
Summary
Setting up your first entity should not be difficult. Not setting up an entity can be the start of the end. Get good advice, work with someone you get along with and who is willing to explain what you need to know and using this information, concentrate on getting your new business up and running.
Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)
Posted: January 27, 2020 Filed under: Uncategorized | Tags: All Terrain Vehicle, assumption of the risk, ATV, Blue Knob, Blue Knob Recreation, downhill skiing, Exculpatory Language, Gross negligence, Inherent Risk, Pennsylvania Skier Safety Act, recklessness, Release, Ruts, Season Pass Holder, ski area, Snow Making, Sport, sport of downhill skiing, Waiver Leave a commentKibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)
184 A.3d 974
Patrick Kibler and Kathryn Kibler, Husband and Wife, Appellants
v.
Blue Knob Recreation, Inc., a Pennsylvania Corporation, t/d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc., a Pennsylvania Corporation
No. 903 WDA 2017
Superior Court of Pennsylvania
April 19, 2018
Argued November 29, 2017
[184 A.3d 975] [Copyrighted Material Omitted]
[184 A.3d 976]
Appeal from the Order, May 24, 2017, in the Court of Common Pleas of Bedford County, Civil Division at No. 2015-183. TRAVIS W. LIVENGOOD, J.
Douglas V. Stoehr, Altoona, for appellants.
Anthony W. Hinkle, Blue Bell, for appellees.
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
OPINION
FORD ELLIOTT, P.J.E.
Patrick and Kathryn Kibler (collectively “appellants”[1] ) appeal from the May 24, 2017 order of the Court of Common Pleas of Bedford County granting Blue Knob Recreation, Inc. and Blue Knob Resort, Inc.’s (hereinafter, collectively “defendants”) motion for summary judgment. After careful review, we affirm.
The trial court provided the following synopsis of the facts:
On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass. The bottom half of said document contains the following exculpatory language:
PLEASE READ THE FOLLOWING
BEFORE SIGNING!!
Snowboarding, skiing and other snow related activities, like many other sports, contain inherent risks including, but not limited to, the risk of personal injury, death or property damage, which may be caused by: variation in terrain or weather conditions, surface or subsurface, snow, ice, bare spots, thin cover, moguls, ruts, bumps, forest growth, debris, other persons using the facilities, branches, trees, roots, stumps, rocks, and other natural or man made objects that are incidental to the provision or maintenance of the facility. For the use of Blue Knob Ski Area, the holder assumes all risks of injury and releases Blue Knob Recreation from all liability THEREFORE: Not withstanding the foregoing, if I sue Blue Knob Recreation ET AL I agree that I will only sue it, whether on my own behalf or on behalf of a family member, in the Court of Common Pleas of Bedford County or in the United States District Court for the District of Pittsburgh, Pennsylvania and further agree that any and all disputes which might arise between Blue Knob Recreation ET AL and myself shall be litigated exclusively in one of said courts.
See Blue Knob All Seasons Resort Information/Guidelines.
On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.
Trial court opinion, 5/23/17 at 2-3.
On February 15, 2015, appellants filed a civil complaint with the trial court sounding in negligence. Following discovery, defendants filed a motion for summary judgment with an accompanying memorandum of law on January 23, 2017. Appellants filed a motion for summary judgment on March 17, 2017. Oral arguments were held before the trial court on April 18, 2017. On May 24, 2017, the trial court granted defendants’ motion for summary judgment, dismissing appellants’ complaint with prejudice, and denied appellants’ motion for summary judgment.
On June 16, 2017, appellants filed a timely notice of appeal with this court. The trial court ordered appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellants complied on July 18, 2017. The trial court filed an opinion on August 10, 2017, pursuant to Pa.R.A.P. 1925(a) in which it incorporated the content of its May 24, 2017 order and opinion granting defendants’ motion for summary judgment.
Appellants raise the following issues for our review: [184 A.3d 978] A. Was the hazard encountered by [appellant] inherent to the dangers of downhill skiing, when [defendants’] Director of Maintenance testified that the hazard was out of the ordinary, not common, and [appellant] should not have expected to encounter the hazard?
B. Is the Blue Knob All Seasons Resort 2014-2015 Season Pass Holder Information/Guidelines document a valid exculpatory release, where the top half of the document only discusses the requirements to be a season pass holder, and the lower half is ambiguous, the word “releases” is located 75% down the page, lacks conspicuity, without print of a size and boldness that draws the attention of an ordinary person, and where no evidence exists that [appellant] read this document?
C. Is a claim for injuries caused by the grossly negligent and/or reckless acts of a ski resort barred by an alleged exculpatory sentence in Blue Knob’s season pass?
D. Did [appellant] voluntarily assume the risk of injury when he encountered a hazard at [defendants’] resort for which he was unaware, and for which [defendants’] Director of Maintenance testified that [appellant] had no reason to anticipate or know of the hazard’s existence? Appellant’s brief at 4-5.[2]
In reviewing an appeal from the trial court’s granting of a motion for summary judgment, we are governed by the following standard of review:
[O]ur standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Our scope of review is plenary. In reviewing a trial court’s grant of summary judgment, we apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.
* * *
Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions.
Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa.Super. 2012) (internal citations omitted).
Rule of Civil Procedure 1035 governs motions for summary judgment and provides, in relevant part, as follows:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of [184 A.3d 979] action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
Pa.R.C.P. 1035.2. This Court has explained the application of this rule as follows:
Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of a cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Petrina, 46 A.3d at 798. Criswell v. Atlantic Richfield Co., 115 A.3d 906, 909-910 (Pa.Super. 2015).
Voluntary Assumption of the Risk
Appellants’ first and fourth issues on appeal address the voluntary assumption of the risk associated with downhill skiing. The General Assembly directly addressed this issue when it passed the Pennsylvania Skier’s Responsibility Act (hereinafter, “the Act”). The Act provides, in relevant part,
(c) Downhill skiing—
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of the risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).[3]
42 Pa.C.S.A. § 7102(c).
In light of the Act, our supreme court established the following standard when reviewing grants of summary judgment in cases involving downhill skiing:
First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary [184 A.3d 980] judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.
Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (2000). In the context of downhill skiing, our supreme court stated that both common law assumption of the risk doctrine and the court’s decision in Hughes “direct that inherent risks are those that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1187 n.14 (2010).
In the instant appeal, it is beyond dispute that appellant was engaged in the sport of downhill skiing at the time of his injury. Indeed, as noted by the Hughes court,
Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.
Hughes, 762 A.2d at 344. Therefore, our paramount inquiry is whether encountering wheel ruts on a ski slope created by an ATV operated by an employee of defendants is an inherent risk to downhill skiing.
Appellants make the argument that operating an ATV up the middle of a ski slope is not an inherent aspect of the sport, and should therefore not be considered an inherent risk as contemplated by the Act. (See appellants’ brief at 32.) Appellants specifically cite the deposition testimony of Craig Taylor, defendants’ director of maintenance, in which Mr. Taylor stated that it would not be common or expected by a skier to encounter wheel ruts made by an ATV on the ski slope. (See notes of testimony, 10/21/15 at 28.) Defendants aver that the cause of the alleged condition is not relevant to whether the condition itself, in this case wheel ruts left by operating an ATV up the middle of a ski slope, constitutes an inherent risk associated with downhill skiing.
As noted by the Chepkevich court, “Pennsylvania’s Act is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing,” especially when compared to other states in which skiing constitutes a “significant industry.” Chepkevich, 2 A.3d at 1188 n.15. Of the states referenced by the Chepkevich court, the most instructive is New York.
In Schorpp v. Oak Mountain, LLC, 143 A.D.3d 1136, 39 N.Y.S.3d 296 (N.Y.App.Div. 2016), the New York Supreme Court, Appellate Division[4] reversed the trial court’s denial of summary judgment in a negligence cause of action. Id. at 1137, 39 N.Y.S.3d 296. The plaintiff in this case “skied into a ‘depression’ that was filled with snow. The skis got caught in the depression causing [the plaintiff] to flip over and fall out of his skis.” Id. The appellate court held that under New York’s assumption of the risk doctrine as it pertains to downhill skiing, “an individual ‘assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain.’ ” Id. , quoting Ruepp v. West Experience, 272 A.D.2d 673, 674, 706 N.Y.S.2d 787 (N.Y.App.Div. 2000) (emphasis added). Unlike its Pennsylvania counterpart, the [184 A.3d 981] New York State Legislature specifically identified ruts as an inherent risk of downhill skiing. N.Y. General Obligations Law § 18-101.
Given that our cases do not directly address an injury incurred while engaged in downhill skiing caused by wheel ruts in the terrain on the slope, we find the New York statute and case law to be the most instructive in the instant appeal. Moreover, the language of the release signed by appellant, which we further discuss infra , is nearly identical to the language of the New York statute.[5] We agree with the holding of the Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.
Validity of Release[6]
Appellants’ second issue pertains to the release appellant signed when he purchased his season pass. Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellant actually read the release. (Appellants’ brief at 33.)
When considering the validity of exculpatory releases, we are governed by the following standard:
It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. Princeton Sportswear Corp. v. H & M Associates, 510 Pa. 189, 507 A.2d 339 (1986); Employers Liability Assurance Corp. v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966). In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), [our supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract [184 A.3d 982] language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause. Dilks, 192 A.2d at 687.
Topp Copy Products, Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993), cited by Chepkevich, 2 A.3d at 1189.
In the context of exculpatory releases used for downhill skiing, we find the rationale behind the Chepkevich court’s decision to be highly instructive to the instant appeal.[7]
As we have stated, downhill skiing … is a voluntary and hazardous activity, and that fact is acknowledged in the Act as discussed above. Moreover, an exculpatory agreement conditioning the use of a commercial facility for such activities has not been construed as a typical contract of adhesion. The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity. The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable. Moreover, the absence of a definition or illustration of negligence does not render this Release an invalid contract of adhesion; that factor simply does not relate to the concerns implicated by adhesion contracts.
Chepkevich, 2 A.3d at 1191 (internal citations omitted).
Facial Validity
Similar to the Chepkevich court, we must first look to the facial validity of the release. In Chepkevich, our supreme court found that the release signed by the plaintiff did not “contravene any policy of the law. Indeed, the clear policy of this Commonwealth, as articulated by the Act, is to encourage the sport [of downhill skiing] and place the risks of skiing squarely on the skier.” Id. , citing 42 Pa.C.S.A. § 7102(c)(2). The court also stated that, “Pennsylvania courts have upheld similar releases respecting skiing and other inherently dangerous sporting activities.” Id. (collecting cases). Finally, our supreme court held that the release the plaintiff signed was a contract between Hidden Valley and the plaintiff, “relating to their private affairs, specifically [the plaintiff’s] voluntary use of the resort’s facilities.” Id.
[184 A.3d 983] Our discussion in the instant appeal is comparable to the analysis employed by the Chepkevich court. Here, the release signed by appellant does not contravene any policy of the law. Similar to the release used by defendant Hidden Valley in Chepkevich , the release before us relates to the private affairs of appellant and defendants— namely, appellant’s voluntary use of defendants’ facilities. Accordingly, we find that the release signed by appellant is facially valid.
Enforceability
Similar to the Chepkevich court, we must now look to the release’s enforceability. “[T]he Topp Copy/Employers Liability standard requires us to construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.” Id. , citing Topp Copy, 626 A.2d at 99.
In the instant appeal, appellants aver that the release was ambiguous, lacked conspicuity, and “was without print of a size and boldness that draws the attention of an ordinary person.” (Appellant’s brief at 33.) Appellants further aver that there is no evidence that appellant read the release before signing it. (Id. ) We shall address each of these claims individually.
Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” (Id. at 39.) Appellants then allege that the release failed include any reference to the risk encountered by appellant. (Id. at 43.) Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.” (Id. ) This argument misses the mark. To the contrary, as noted supra , one of the inherent risks explicitly referenced in the release is the presence of ruts on the ski slope. Merriam-Webster defines “rut” as “a track worn by a wheel or by habitual passage.” Merriam-Webster.com.Merriam-Webster, n.d. Web. 2 Jan. 2018. Roget’s Thesaurus identifies “trench” as a synonym of “rut.” Thesaurus.com.Roget’s 21st Century Thesaurus, Third Edition, n.d. Web. 2 Jan. 2018. We therefore find that defendants’ release was not ambiguous, and that it explicitly referenced the risk encountered by appellant.
We now turn to appellants’ claim that the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” (Appellants’ brief at 33.) As noted above, the release appellant signed contained information regarding his season ski pass. Following the ski pass information, in a paragraph labeled “PLEASE READ THE FOLLOWING BEFORE SIGNING!![,]” defendants’ release contained the exculpatory language before us for review. (Id. at 34.)
The Pennsylvania Uniform Commercial Code[8] defines “conspicuous” as “so written, [184 A.3d 984] displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.” 13 Pa.C.S.A. § 1201(b)(10). The Code specifically states that a conspicuous term includes the following:
(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.
(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
Id. at § 1201(b)(10)(i-ii) (emphasis added).
Here, the release issued by defendants and signed by appellant meets the definition of conspicuous as set forth by the Pennsylvania Uniform Commercial Code. The exculpatory language of the release is preceded by a heading that is written in all capital letters in a size of text equal to the exculpatory language of the release. The heading also contains two exclamation points that call attention to the language of the heading, pursuant to the Code. Accordingly, we find that appellants’ argument that the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person” is without merit, as defendants’ release is conspicuous under the Pennsylvania Uniform Commercial Code.
Finally, we address appellants’ averment that that there is no evidence that appellant read the release before signing it. Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.” Toro v. Fitness International LLC, 150 A.3d 968, 975 (Pa.Super. 2016), citing Hinkal v. Pardoe, 133 A.3d 738, 743 (Pa.Super. 2016), appeal denied , 636 Pa. 650, 141 A.3d 481 (Pa. 2016). See alsoSchillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D. Pa. 1990) (“The law in Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract first”). In the instant appeal, appellant was not excused of his duty to read the Release before signing it. Therefore, appellant’s argument that there is no evidence that he read the release before signing is without merit.
Gross Negligence and Reckless Conduct
Finally, appellant avers that the release does not protect defendants from liability for acts of gross negligence and/or reckless conduct. Our supreme court has held that exculpatory releases of reckless behavior are contrary to public policy, “as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1203 (2012), citing Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 648 A.2d 755, 760 (1994). Therefore, our inquiry centers on whether the conduct alleged by appellants— operating an ATV on a ski slope and creating wheel ruts on the slope— constituted gross negligence and/or reckless conduct.
This court has observed the following pertaining to gross negligence:
In Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695 (Pa.Super. 2000), appeal denied, 567 Pa. 715, 785 A.2d 90 (Pa. 2001), we indicated that when courts have considered the concept of “gross negligence” in various civil contexts, [184 A.3d 985] they have concluded uniformly that there is a substantive difference between “ordinary negligence” and “gross negligence.” Id. at 703. “The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” Id. at 704 (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. Id. at 704-705 (citing Black’s Law Dictionary 1057 (7th ed. 1999) ). In re Scheidmantel, 868 A.2d 464, 485-486 (Pa.Super. 2005). While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.
Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525-526 (Pa.Super. 2003) (en banc ), quoting Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159, 1164-1165 (1997).
The Tayar court provided the following comparison of recklessness with ordinary negligence:
Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. In Fitsko v. Gaughenbaugh, 363 Pa. 132, 69 A.2d 76 (1949), [our supreme court] cited with approval the Restatement ( [First] ) of Torts[10] definition of “reckless disregard” and its explanation of the distinction between ordinary negligence and recklessness. Specifically, the Restatement (Second) of Torts defines “reckless disregard” as follows:
The actor’s conduct is in reckless disregard of the safety of another if 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.
Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” Id. , cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:
Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct [184 A.3d 986] requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.
Id. , cmt. g; see also AMJUR Negligence § 274 (“Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others”). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk,” while a person acts negligently when he “should be aware of a substantial and unjustifiable risk”).
This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. Tayar, 47 A.3d at 1200-1201. ` Here, we find as a matter of law, that the record does not reflect gross negligence or reckless conduct on the part of defendants. Specifically, we agree with the trial court’s following conclusion:
[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.
[Footnote 7] Defendants seemingly concede the cause of the “trenches” and Defendants’ employees conceded that such actions were improper in normal slope maintenance process.
Trial court opinion, 5/24/17 at 8-9.
Accordingly, we find that defendants did not engage in grossly negligent or reckless conduct, and that the Release provided by defendants and signed by appellant is enforceable.
Order affirmed.
Bowes, J. joins this Opinion.
Stabile, J. concurs in the result.
———
Notes:
[1] For clarity, we will refer to Mr. Kibler as “appellant” throughout this memorandum.
[2] Appellants’ four issues address two overarching issues: voluntary assumption of risk and the validity of the release attached to the season pass provided by defendants. Accordingly, for the purposes of our review, we shall address issues A and D together and issues B and C together.
[3] Subsections (a) and (a.1) address contributory negligence and joint and several liability.
[4] This court is the intermediate court of appeals in New York.
[5] The New York statute provides, in relevant part:
§ 18-101. Legislative purpose
The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state ….
N.Y. General Obligations Law § 18-101.
[6] As noted by Justice Baer in his concurring opinion in Chepkevich , a review of the release issued by defendants and signed by appellant is not wholly necessary. Chepkevich, 2 A.3d at 1198 (Baer, J., concurring). The majority stated that, “consideration of alternative holdings is subject to prudential concerns, and we believe there are prudential concerns to consider the Release here.” Id. at 1188 n.16. We will follow the lead of the majority and analyze both issues as they have both been briefed and argued before this court.
[7] The release before the Chepkevich court was printed on an 8½ by 11-inch sheet of paper entitled “RELEASE FROM LIABILITY” and contained the following language:
Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to variations in snow and terrain, ice and icy conditions, moguls, rocks, debris (above and below the surface), bare spots, lift towers, poles, snowmaking equipment (including pipes, hydrants, and component parts), fences and the absence of fences and other natural and manmade objects, visible or hidden, as well as collisions with equipment, obstacles or other skiers …. All the risks of skiing and boarding present the risk of serious or fatal injury. By accepting this Season Pass I agree to accept all these risks and agree not to sue Hidden Valley Resort or their employees if injured while using their facilities regardless of any negligence on their part. Chepkevich, 2 A.3d at 1176.
[8] As in prior cases, we note that the Uniform Commercial Code is applicable to the sale of goods, while this case pertains to the sale of services; “nevertheless, we find the UCC’s warrant disclaimer provision in Article 2, and its interpreting caselaw, provides guidance in the instant case.” Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1274 n.12 (Pa.Super. 2006).
[9] 50 P.S. § § 7101-7503.
[10] The Restatement (Second) of Torts was published in 1965.
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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.
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