Name of Product: Look Cycle road bikes and Aerostems
Hazard: The stainless steel clamp that secures the stem to the handlebars can corrode and break, posing a fall and crash hazard.
Consumers should immediately stop using bicycles with the recalled Aerostems and return them to the place of purchase for a free repair. Consumers unable to return their bicycles should contact Look Cycle for instructions on receiving a free repair.
Consumer Contact: Look Cycle at 800-822-1980 from 8 a.m. to 5 p.m. ET Monday through Friday, email at email@example.com or online at http://www.lookcycle.com/ click on the Safety Notice tab for more information.
Photos available at: https://cpsc.gov/Recalls/2017/Look-Cycle-Recalls-Aerostems–and-Road-Bikes
Units: About 800
Description: This recall involves Look Cycle Aerostems sold either as an after-market component or installed as original equipment on Look Cycle model 695 and 795 road bikes for model years 2014 through 2017. The Look Aerostems are made of black carbon fiber material with a black steel clamp around the handlebars. Recalled models have either no number or the number 380706 printed in white on the bottom of the clamp. A complete list of photos of the recalled stems and bike models can be found on the firm’s website at http://www.lookcycle.com/en/safety-notice.
Incidents/Injuries: The firm has received one report of the stainless steel clamp on an Aerostem breaking. No injuries have been reported.
Sold at: Independent bike stores nationwide from July 2013 through December 2016 for about $500 for the stems sold individually and for between $5,500 and $16,000 installed as original equipment on Look Cycle road 695 and 795 road racing bicycles.
Importer: Hawley LLC, of Lexington, S.C.
Manufactured in: France and Switzerland
NSSRA Offers Ship Skis as Newest Member Benefit
Program Is Designed To Increase Store Traffic While Offering Customers an Easy Way To Ship Their Gear
MOUNT PROSPECT, IL — The National Ski & Snowboard Retailers Association (NSSRA) Board of Directors is pleased to announce an agreement with Ship Skis to provide ski and board gear shipping services to NSSRA members. Ship Skis provides similar services to the golf industry under the Ship Sticks brand.
NSSRA members who participate in the program will be able to ship their customers’ gear to and from any home, business, or ski resort in the United States or abroad. Retailers will be provided with an easy to complete Ship Skis web page for their websites, which quickly calculates shipping charges. Through Ship Skis, shipping fees are offered at discount rates. This allows NSSRA retailers to earn a margin on their customers shipping charges for facilitating the shipment. Shipments are insured against loss or damage, and Ship Skis will cover up to $200 should the customer have to rent gear for any shipments that are delayed in-transit.
“This is such a natural service to provide our members that we didn’t want to wait until next season to get started,” said NSSRA Chairman of the Board Wilbur Rice. “Many retailers provide similar services for their customers, but the Ship Skis program will save significantly on the cost of shipping skis, boards or other gear to ski resorts.
“I want to thank NSSRA Past Chairman Brad Nelson and Chairman-Elect Teddy Schiavoni for their work in putting this together,” Rice said. “As busy as they have been in their shops, they understood the importance of making Ship Skis available to our members now rather than waiting until next season.”
“We are ecstatic about the new partnership with the NSSRA and proud to join the existing partners in the endeavor to advocate for Ski/Snowboard retailers across the country,” says Nicholas Coleman, CEO. “We believe Ship Skis will extend a unique opportunity to assist every member of the NSSRA with increased foot traffic and revenue at each of its specialty retailers and vendors. This partnership will provide ski/snowboard business vendors and down slope retailers with a way to ensure their customer base has a full-service experience from the counter at the store to the slopes anywhere in the world.”
For more information on Ship Skis, please visit wsmith
For more information on NSSRA, contact NSSRA President Larry Weindruch, lweindruch, or stop by Booth #3628 during the SIA Snow Show.
About NSSRA: The National Ski & Snowboard Retailers Association is a volunteer-led organization dedicated to growing snow sports participation and to support and educate specialty snow sports retailers. Since its founding in 1989, NSSRA has served as the voice of specialty retailers, representing their interest on issues that affect the specialty retail channel. NSSRA publishes research reports for specialty snow sports retailers, offers cost-saving services, and compiles and distributes the Combined Indemnified Bindings List. For more information, please contact NSSRA President Larry Weindruch, (847) 391-9825, or email: lweindruch.
About Ship Skis: Ship Skis provides a door-to-door shipping solution for the traveler who desires a hassle-free traveling experience. As the most reliable and cost effective shipping service available, Ship Skis has partnered with the world’s finest Ski Resorts, Ski Shops and Hotels to allow for an effortless shipping experience. Shipping skis, snowboards, and luggage with Ship Skis allows you to save time and money at the airport by avoiding the long check-in lines, crowded baggage terminals, and expensive baggage fees. Whether your skis, snowboards or luggage are being picked up from your home or office, Ship Skis guarantees an on-time delivery to wherever you’re staying or skiing. For additional information with regards to these convenient services, please visit www.shipskis.com.
McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45
Marcella McGrath f/k/a Marcella Widger v. SNH Development, Inc. and John Doe, an unnamed individual
SUPERIOR COURT OF NEW HAMPSHIRE, HILLSBOROUGH COUNTY
2008 N.H. Super. LEXIS 45
May 19, 2008, Decided
THE ORDERS ON THIS SITE ARE TRIAL COURT ORDERS THAT ARE NOT BINDING ON OTHER TRIAL COURT JUSTICES OR MASTERS AND ARE SUBJECT TO APPELLATE REVIEW BY THE NEW HAMPSHIRE SUPREME COURT.
SUBSEQUENT HISTORY: Affirmed by McGrath v. SNH Dev., Inc., 158 N.H. 540, 969 A.2d 392, 2009 N.H. LEXIS 43 (2009)
JUDGES: [*1] GILLIAN L. ABRAMSON, PRESIDING JUSTICE.
OPINION BY: GILLIAN L. ABRAMSON
The plaintiff commenced the instant action alleging negligence against the defendants, SNH Development, Inc. (“SNH Development”) and John Doe, an unnamed individual. The defendants now move for summary judgment, and the plaintiff objects.
For purposes of the defendants’ motion for summary judgment, the parties do not appear to dispute the following facts. SNH Development is a subsidiary of Peak Resorts, Inc. and owns and operates the Crotched Mountain Ski Area in Bennington, New Hampshire. On October 23, 2003, the plaintiff signed an application (the “application”) for a season pass to the Crotched Mountain Ski Area. The application provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the ski area facility, that I freely accept and voluntarily assume all risks of personal injury or death of property damage, release Crotched Mountain its owners and its agents, employees, directors, officers and shareholders from any and all liability for personal injury or property damage [*2] which results in any way from negligence, conditions on or about the premises, the operations of the ski area including, but not limited to, grooming snow making, ski lift operations, actions or omissions of employees or age the area, or my participation in skiing, accepting myself the full responsibility
Defs.’ Mot. for Summ. J., Ex. B. Moreover, on December 20, 2003, the plaintiff signed a Liability Release Agreement, which provides:
I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the area facility, that I freely accept and voluntarily assume all risks of personal injury or death or property damage, and release Peak Resorts, Inc, all of its subsidiaries, and its agents, employees, directors, officers, shareholders and the manufacturers and distributors of this equipment and the school and group organizers (collective “providers’), from any and all liability for personal injury, death or property damage which results in any way from negligence, conditions on or about the premises, the operation of the area including, but not limited to grooming, [*3] snowmaking, lift operations, actions or omissions of employees or agents of the areas, or my participating in skiing, snowboarding, blading, accepting myself the full responsibility.
Id. On February 20, 2004, the plaintiff was skiing 1 a trail at the Crotched Mountain Ski Area when an employee of SNH Development drove a snowmobile into the plaintiff’s path, causing a collision.
1 Some of the pleadings state that the plaintiff was skiing, while other’s state that the plaintiff was snowboarding.
The defendants now move for summary judgment, arguing that the plaintiff signed the application and the Liability Release Agreement, both of which are valid, enforceable exculpatory contracts. The plaintiff objects, arguing that the application and the Liability Release Agreement violate public policy and that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim.
In ruling on a motion for summary judgment, the Court “consider[s] the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” White v. Asplundh Tree Expert Co., 151 N.H. 544, 547, 864 A.2d 1101 (2004). [*4] The Court must grant a motion for summary judgment if its “review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law Id. A fact is material “if it affects the outcome of the litigation under the applicable substantive law.” Palmer v. Nan King Restaurant, 147 N.H. 681, 683, 798 A.2d 583 (2002).
New Hampshire law generally prohibits exculpatory contracts, but the Court will enforce them if; “(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.” Dean v. MacDonald, 147 N.H. 263, 266-267, 786 A.2d 834 (2001). Thus, the Court considers each of these requirements in turn.
Regarding the first requirement, an exculpatory contract violates public policy if a special relationship existed between the parties or if there was some other disparity in bargaining power. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986) (“A defendant seeking to avoid liability must show that the exculpatory agreement does [*5] not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”).
A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way, RSA 215-C:49, XII (Supp. 2007), and because the Crotched Mountain Ski Area serves the public. Assuming that RSA 215-C:49, XII applies to the operation of a snowmobile on a privately owned ski area, the plaintiff has not offered any legal support for the conclusion that this statute somehow charges the defendants with a duty of public service. Moreover, the fact that the Crotched Mountain Ski Area serves the public is not conclusive. For example, Barnes, involved a negligence claim arising from a collision at an enduro kart racing facility. In Barnes, the New Hampshire Supreme Court noted that the defendant’s served the public but held that the defendant’s were not charged with a duty of public service because [*6] Endurokart racing is not “affected with a public interest.” Barnes, 128 N.H. at 108. Similarly, skiing is a recreational activity not affected with a public interest, and the Court finds that the defendant’s are not charged with a duty of public service.
The Plaintiff also contends that she was at an obvious disadvantage in bargaining power because all ski areas require skiers to sign releases. The Court disagrees.
This case … does not have any hallmarks of a disparity in bargaining power. The [skiing] service offered by the defendant is not a “matter of practical necessity.” Nor did the defendant in this ease have monopoly control over this service such that the plaintiff could not have gone elsewhere.
Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994) (quoting Barnes, 128 N.H. at 108). 2
2 The Plaintiff also argues that the application and the Liability Release Agreement violate public policy because they relieve the defendant’s from compliance with RSA chapter 215-C, which governs snowmobiles. Assuming that RSA chapter 215-C applies to the operation of a snowmobile on privately owned ski area, the application and the Liability Release Agreement would have no bearing on the enforcement of RSA chapter 215-C. [*7] See RSA 215-C-32 (Supp.2007) (providing for the enforcement of RSA chapter 215-C).
“Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that reasonable person in his position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107. “The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.” Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 169, 663 A.2d 1340 (1995). The Court
therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”
Id. (citations omitted) (quoting Barnes, 128 N.H. at 107). The Court “will assess the clarity. the contract by evaluating it as a whole, not by examining [*8] isolated words and phrases. Id. at 169-170.
The plaintiff does not appear to dispute that she understood the import of the application or the Liability Release Agreement. Rather, the plaintiff argues that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim. Thus, the Court turns to the third requirement.
“[T]he plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement. The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries. They may adopt language to cover, a broad range of accidents….” Barnes, 128 N.H. at 107 (citation omitted). To determine the scope of a release, the Court examines its language, strictly construing it against the defendant. Dean, 147 N.H. at 267.
Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of [*9] the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
Audley, 138 N.H. at 418 (citations omitted) (quoting Barnes, 128 N.H. at 107).
The plaintiff contends that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because neither the application nor the Liability Release Agreement reference snowmobiles. As rioted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.” Defs.’ Mot. for Summ. J., Ex. B. This language clearly states that the defendants are not responsible for the consequences of their negligence.
The Plaintiff also contends that the parties did [*10] not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because snowmobiles are not an inherent hazard of skiing. The plaintiff relies on Wright. In Wright, the New Hampshire Supreme Court noted:
The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that
Wright, 140 N.H. at 170. Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the [*11] Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.
Based on the foregoing, the defendant’s motion for summary judgment is GRANTED.