Hand Wash Stations

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

Download the sign here as a pdf: Warning Sign

 


Scotti v Tough Mudder Inc., 63 Misc. 3d 843, 97 N.Y.S.3d 825, 2019 N.Y. Misc. LEXIS 1525, 2019 NY Slip Op 29098, 2019 WL 1511142

Scotti v Tough Mudder Inc., 63 Misc. 3d 843, 97 N.Y.S.3d 825, 2019 N.Y. Misc. LEXIS 1525, 2019 NY Slip Op 29098, 2019 WL 1511142

Supreme Court of New York, Kings County

March 29, 2019, Decided

522905/17

Reporter

63 Misc. 3d 843 *; 97 N.Y.S.3d 825 **; 2019 N.Y. Misc. LEXIS 1525 ***; 2019 NY Slip Op 29098 ****; 2019 WL 1511142

 [****1]  Richard E. Scotti et al., Plaintiffs, v Tough Mudder Incorporated et al., Defendants.

Counsel: Wilson Elser Moskowitz Edelman &Dicker LLP [***1] , New York City (Joshua Cash of counsel), for defendants.

The Bongiorno Law Firm, PLLC, Garden City (Brandon Michael Cruz of counsel), for plaintiffs.

Judges: Hon. Debra Silber, J.S.C.

Opinion by: Debra Silber

Opinion

 [*844]  [**828] Debra Silber, J.

Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated move for an order, pursuant to CPLR 7501 and 7503 (a), to compel arbitration and to stay this action pending resolution of the arbitration proceeding. For the reasons which follow, the motion is denied.

Background and Procedural History

This personal injury action stems from an accident which occurred on July 23, 2016, when the plaintiffs Richard E. Scotti and Joseph Russo participated in the “Tough Mudder,” a physically challenging obstacle course event (hereinafter the TM event), which took place at 1303 Round Swamp Road, Old Bethpage, New York. Defendants Tough Mudder Incorporated and [****2]  Tough Mudder Event Production Incorporated (collectively, Tough Mudder) are the business entities that organized the [*845]  TM event. Plaintiffs commenced the within action on or about November 17, 2017, against Tough Mudder alleging that they each sustained [***2]  injuries as a result of defendants’ negligent operation of an activity at the event, referred to as the “salmon ladder.” Tough Mudder joined issue on or about December 20, 2017, with the service of a verified answer. In their answer, Tough Mudder denied all material allegations and asserted various affirmative defenses, including that the plaintiffs’ action is barred by the participation/registration agreement, which included an arbitration clause.

Tough Mudder now moves, pursuant to CPLR 7501 and 7503, to compel arbitration, arguing that the plaintiffs are barred from pursuing the instant action in this court because they each waived the right to sue by virtue of agreeing to arbitrate any “disputes, controversies, or claims” arising out of their participation in the TM event. Tough Mudder claims that the plaintiffs each entered into an agreement to arbitrate all claims related to their participation in the TM event when they completed an online Internet registration form. In support of this contention, Tough Mudder has submitted the sworn affidavit of Jenna Best, the manager of customer relations for Tough Mudder Incorporated (affirmation of Joshua Cash, exhibit C). Best avers that she is fully [***3]  familiar with the TM event online registration process as it existed in 2016 when the plaintiffs registered for the TM event at issue.1 Tough Mudder has submitted copies of the online registration forms that the plaintiffs allegedly completed for the TM event (Cash affirmation, exhibit D). Best states that, during the online registration process, the plaintiffs were required to scroll down to a section containing the “Participant Waiver and Course Rules” (hereinafter PWCR), a document version of which [**829]  has been submitted herein (Cash affirmation, exhibit F). She contends that the full text of the PWCR was contained in a box on the screen, which could be read by scrolling down in the text box. Best contends that the initial visible content of the scrollable box, which preceded the full PWCR document, which could be read in its entirety by scrolling down, read as follows:

“Participant Waiver: Tough Mudder Incorporated

“ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT

 [*846] “PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.” (Cash affirmation, [***4]  exhibit E.)

Best claims the PWCR contained the following “Mediation and Arbitration” provision:

“Mediation and Arbitration: In the event of a legal issue, I agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation, I agree that all disputes, controversies, or claims arising out of my participation in the TM event shall be submitted to binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect. The costs of such action shall be shared equally by the parties.

“I further acknowledge and agree that any question, issue or dispute as to the arbitrability of any dispute, controversy, or claim arising out of my participation in the TM event, will be submitted to an arbitrator in accordance with the applicable rules of the American Arbitration Association then in effect. The Arbitration Rules of the American Arbitration Association are available on-line at http://www.adr.org” (Cash affirmation, exhibit F). [***5] 

Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM event. According to Best, the Internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR (Cash affirmation, exhibit D, ¶ 5). She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM event (id. ¶ 6). Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the online waiver, which included the arbitration clause, and, therefore, are barred from pursuing the instant action.

 [*847] In opposition, plaintiffs argue that the arbitration [***6]  provision at issue is unenforceable because Tough Mudder has failed to establish that they actually agreed to it. In this regard, plaintiffs point out that the webpage where the PWCR was located contained a text box that did not show the entire document. In order to read the full PWCR, including the arbitration provision, plaintiffs contend it would have been necessary to scroll down through many screens of text using the arrows on the right-hand side of the text box. The PWCR fills seven single-spaced pages of text (exhibit F to Cash affirmation). Plaintiffs further argue that Tough Mudder has failed [**830]  to proffer any evidence that either plaintiff actually signed/checked the consent box, or any evidence identifying the computers or electronic devices from which their respective registrations were completed.

Plaintiffs additionally argue that the arbitration clause in the PWCR is unenforceable because it contains a conflicting provision regarding disputes. Plaintiffs point out that the PWCR contains a clause entitled “Venue and Jurisdiction” located several paragraphs before the “Mediation and Arbitration” clause, which states (exhibit F at 3): “I understand that if legal action is [***7]  brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM Event is held shall apply.” Plaintiffs argue that this provision clearly conflicts with the arbitration clause located many lines of type below it, thereby rendering it void and unenforceable.

Finally, plaintiffs argue that the entire PWCR agreement, including the purported arbitration provision, is unenforceable because the “Waiver of Liability for Ordinary Negligence” clause (on page three of the PWCR as exhibit F) violates General Obligations Law § 5-326, which prohibits contracts between the owner or operator of any “place of amusement or recreation” from exempting such owner or operator from “liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment.” In this regard, plaintiffs contend that Tough Mudder’s operation of the TM event obstacle course was clearly operated as a “place of amusement or recreation” within the meaning of General Obligations Law § 5-326. Since the plaintiffs paid a fee [*848]  to use the obstacle course and were injured while engaged [***8]  in that activity, they argue that General Obligations Law § 5-326 renders the entire waiver of liability clause, and all remaining provisions of the PWCR, including the arbitration clause, void and unenforceable.

In reply, Tough Mudder points out that the plaintiffs do not dispute that they each did in fact register for the TM event. In addition, Tough Mudder argues that General Obligations Law § 5-326 is not applicable herein and, therefore, does not invalidate the waiver or any other PWCR provision. In this regard, Tough Mudder maintains that the TM event is distinguishable from the “recreational” activities intended to be covered under the statute, such as horseback riding, auto racing, cycling and skiing, which Tough Mudder characterizes as being “relaxed and undemanding” activities, which “do not necessitate any research or physical preparation.” Tough Mudder argues that the TM event is distinguishable from the foregoing activities in that it is “a rigorous and grueling athletic competition that requires proper training and dedication” (Cash reply affirmation ¶ 8). Tough Mudder further argues that TM events are “unique to their participants,” and pose risks and challenges exclusive to obstacle courses, thereby rendering such events completely [***9]  distinct from the recreational activities engaged in by the “general public” as contemplated by General Obligations Law § 5-326.

In addition, Tough Mudder points out that the PWCR contains a “Severability” provision which states, in relevant part, as follows:

“I understand and agree that this . . . Waiver of Liability . . . is intended to be as broad and inclusive as is permitted by the state in which the TM Event is held and that if any provision shall be found to be . . . void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions.”

 [**831] In light of the foregoing provision, Tough Mudder argues that, in the event a clause is deemed unenforceable, it does not invalidate any of the remaining provisions of the [****3]  PWCR, including the arbitration clause at issue.

Tough Mudder also argues that the “Venue and Jurisdiction” clause is not contradicted by the “Mediation and Arbitration” [*849]  clause, as the latter clause only mandates arbitration regarding disputes “arising out of [one’s] participation in the TM event.” Therefore, Tough Mudder contends that there are clearly certain circumstances when a state or federal [***10]  trial court would be the appropriate venue for claims that do not arise out of one’s participation in the TM event. However, since plaintiffs’ claims do arise out of their participation, Tough Mudder maintains that arbitration of this matter is required.

Discussion

HN1[] It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” (God’s Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374, 845 NE2d 1265, 812 NYS2d 435 [2006] [internal quotation marks omitted]; see
Matter of Robert Stigwood Org. [Atlantic Recording Corp.], 83 AD2d 123, 126, 443 NYS2d 726 [1981]). When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement (see
Harriman Group v Napolitano, 213 AD2d 159, 162, 623 NYS2d 224 [1995]). The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists (see
Seneca Ins. Co. v Secure-Southwest Brokerage, 294 AD2d 211, 212, 741 NYS2d 690 [2002]; Matter of Allstate Ins. Co. v Roseboro, 247 AD2d 379, 380, 667 NYS2d 914 [1998]). The court must draw all inferences in favor of the non-moving party. (Nicosia v Amazon.com, Inc., 834 F3d 220, 229 [2d Cir 2016].)

“The creation of online contracts ‘has not fundamentally changed the principles of contract’ ” (Resorb Networks, Inc. v YouNow.com, 51 Misc 3d 975, 980-981, 30 NYS3d 506 [Sup Ct NY County 2016], quoting Register.com, Inc. v Verio, Inc., 356 F3d 393, 403 [2d Cir 2004]). The question of whether there is agreement to accept the terms of an online contract turns on the particular facts and circumstances. Courts generally look for evidence [***11]  that a website user had actual or constructive notice of the terms by using the website (see
Schnabel v Trilegiant Corp., 697 F3d 110, 120 [2d Cir 2012]). Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user (id. at 120; see
Fteja v Facebook, Inc., 841 F Supp 2d 829, 833, 835 [SD NY 2012];  [*850] Starke v Gilt Groupe, Inc., 2014 WL 1652225, *2-3, 2014 US Dist LEXIS 58006, *6-7 [SD NY, Apr. 24, 2014, No. 13 Civ 5497(LLS)]; Jerez v JD Closeouts, LLC, 36 Misc 3d 161, 168, 943 NYS2d 392 [Nassau Dist Ct 2012]). In Specht v Netscape Communications Corp. (306 F3d 17 [2d Cir 2002]), the court emphasized that “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility” (id. at 35; see
Starke v Squaretrade, Inc., 2017 WL 3328236, *5, 2017 US Dist LEXIS 122599, *9-12 [ED NY, Aug. 3, 2017, 16-CV-7036 (NGG)], affd
913 F3d 279 [2d Cir 2019]).

In Berkson v Gogo LLC (97 F Supp 3d 359, 394-403 [ED NY 2015]), the four “general types of online consumer contracts  [**832] [are identified as] (a) browsewrap; (b) [****4]  clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” As explained by Judge Weinstein in Berkson:

Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click ‘I agree,’ but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate ‘I agree’ button in order to assent to the terms and [***12]  conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site’s services . . . .” (Id. at 394-395; see
Applebaum v Lyft, Inc., 263 F Supp 3d 454, 465 [SD NY 2017] [applying New York law and denying motion to compel arbitration where notice of contract terms was insufficient to bind plaintiff].)

[1] Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click “I agree” without [*851]  scrolling through the agreement, but there is nothing in the record to support this claim.2

HN2[] A party may be bound to a click-wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the . . . agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.” (Serrano v Cablevision Sys. Corp., 863 F Supp 2d 157, 164 [ED NY 2012]; see also
Whitt v Prosper Funding LLC, 2015 WL 4254062, *4, 2015 US Dist LEXIS 91413, *8-10 [SD NY, July 14, 2015, 1:15-cv-136-GHW]; Kai Peng v Uber Tech., Inc., 237 F Supp 3d 36, 47-48 [ED NY 2017]; Berkson, 97 F Supp 3d at 397.) However, as stated by Judge Koeltl in Applebaum v Lyft, Inc. (263 F Supp 3d at 466),

“[HN3[] a] court cannot presume that a person who clicks on a box that appears on a . . . screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.). The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and [****5]  content [***14]  of that webpage rendered the existence of terms reasonably conspicuous. Clarity and conspicuousness of arbitration terms are important in securing informed assent.” (Internal quotation marks and citations omitted.)

Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation [**833]  of assent is unambiguous as a matter of law (see
Specht v Netscape Communications Corp., 306 F3d 17, 28 [2d Cir 2002]). Therefore, [*852]  the issue herein is whether Tough Mudder’s website registration screen put a reasonably prudent user on inquiry notice of the relevant terms of the PWCR, particularly the arbitration clause at issue (see
Applebaum, 263 F Supp 3d at 465). Insofar as it turns on the reasonableness of notice, the enforceability of a web-based agreement is clearly a fact-intensive inquiry (id.; see
Meyer v Uber Tech., Inc., 868 F3d 66, 76 [2d Cir 2017], citing Schnabel v Trilegiant Corp., 697 F3d 110, 124 [2d Cir 2012]).

Here, plaintiffs did not have actual notice of the arbitration provision at issue in this case. However, plaintiffs can still be bound by the contractual terms if there is inquiry notice of the terms and plaintiffs “assent[ed] to [the terms] through the conduct that a reasonable person would understand to constitute assent” (Plazza v Airbnb, Inc., 289 F Supp 3d 537, 548 [SD NY 2018]; see also
Nicosia, 834 F3d at 233). A person is on inquiry notice if a “reasonably prudent offeree would [***15]  be on notice of the term[s] at issue” (Schnabel, 697 F3d at 120 [“ ’Inquiry notice is actual notice of circumstances sufficient to put a prudent man upon inquiry’ ”], quoting Specht v Netscape Communications Corp., 306 F3d 17, 30 n 14 [2d Cir 2002]).

As cited in a recent decision, Corwin v NYC Bike Share, LLC (238 F Supp 3d 475, 489[SD NY 2017]),

“a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided ‘reasonably conspicuous notice that [users] are about to bind themselves to contract terms’ ” (Specht v Netscape Communications Corp., 306 F3d 17, 32 [2d Cir 2002, Sotomayor, J.]).

In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways” (Meyer v Kalanick, 200 F Supp 3d 408, 420 [SD NY 2016]). In Meyer, a putative class action claiming price-fixing, the district court found that adequate notice was not given to plaintiff of mandatory arbitration when he registered to use Uber. The screen had a hyperlink to the agreement, but plaintiff did not need to click on it to register as a user. Then, after clicking on it, you needed to click further to read the terms of service and the arbitration provision [***16]  was at the bottom [*853]  of page seven. This was determined to be a “browsewrap” agreement. The Second Circuit, on appeal,3 determined that the issue was whether the plaintiff was on inquiry notice of the arbitration provision by virtue of the hyperlink on the screen, under California Law, and determined that adequate notice was [****6]  given. However, the panel remanded the case to the district court to consider whether defendants had waived their right to arbitration due to the extensive litigation that had already taken place.

The court further notes that online agreements may be revised from time to time, so not only must the court determine whether the party seeking to enforce such an agreement has provided the version seen by the other party at the time the contract was made, but whether the court in any seemingly on point case cited actually rendered its decision based on the same version of the agreement (see
Plazza v Airbnb, Inc., 289 F Supp 3d 537 [SD NY 2018] [archived computer code for 2009 sign-up screen provided to court, along with screenshots of terms of service]).

HN4[] In Berkson, Judge Weinstein of the Eastern District of New York, surveying [**834]  cases from federal courts nationwide, provided a useful set of parameters to guide a court’s inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have [***17]  had at the very least inquiry notice of the terms of the agreement (Berkson, 97 F Supp 3d at 401, citing Nguyen v Barnes & Noble Inc., 763 F3d 1171, 1177 [9th Cir 2014]). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through a hyperlink. Third, terms should not be enforced when they are “buried at the bottom of a webpage or tucked away in obscure corners.” (Id. at 402.) HN5[] Special attention should be paid to whether the site design brings the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online . . . transaction,” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. (Id.)

“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text about agreement thereto presented even more obscurely, there [*854]  is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent” (Meyer v Kalanick, 200 F Supp 3d at 421-422 [internal quotation marks and citation omitted]).

A broad exculpatory clause waiving [***18]  liability for negligence would also certainly qualify as a material term and one that alters a contracting party’s commonly-understood rights.

Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its online registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period. In this regard, the court finds that the affidavit by Ms. Best holds little evidentiary value, as she does not set forth the basis of her personal knowledge of Tough Mudder’s online registration process at the time the plaintiffs registered, or of her familiarity with the applicable computer generated documents (see
Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 253-254, 926 NYS2d 53 [2011]). Additionally, absent from her affidavit is any indication that she was even employed by Tough Mudder at the relevant [****7]  time period.

In addition, the court notes that the purported copies of the plaintiffs’ respective online registration forms (screenshots) submitted by Tough Mudder (exhibit [***19]  D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screenshots depicting its online registration process. In addition, the full text of the PWCR, as provided by Tough Mudder, is not a screenshot but a black and white document, consisting of seven pages of single-spaced language, all in the same font and size, with no underlined, hyperlinked or bolded terms. In order to view the “Mediation and Arbitration” clause, the plaintiffs, by using the arrows inside the text box, needed to scroll down significantly beyond what is initially visible, to page four of the seven-page single-spaced PWCR document. The court additionally notes that, as with the entire document, the arbitration provision is neither underlined, bolded nor hyperlinked. Further, since this court has only been provided with a black and white document, [**835]  not screenshots, it is unable to discern how the subject arbitration [*855]  clause actually appeared to the user. HN6[] Indeed, “[i]n the context of web-based contracts, [courts] look to the design and content of the relevant interface to determine if the contract [***20]  terms were presented to the offeree in a way that would put her [or him] on inquiry notice of such terms” (Starke v SquareTrade, Inc., 913 F3d 279, 289-290 [2d Cir 2019], citing Nguyen v Barnes & Noble Inc., 763 F3d 1171, 1177 [9th Cir 2014], and Specht v Netscape Communications Corp., 306 F3d 17, 23 [2d Cir 2002] [where court refused to enforce terms of use that “would have become visible to plaintiffs only if they had scrolled down to the next screen”]). Here, Tough Mudder’s submissions with respect to the “design and content” of its website and the relevant terms of the PWCR, especially the arbitration clause, are woefully inadequate.

The court further notes that the initially visible portion of the online text box containing the scrollable PWCR has an all-caps header stating:

“ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT

“PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.”

However, while this header specifically draws the user’s attention to certain specified provisions (i.e., assumption of risk, waiver of liability and indemnity) which appear at the beginning of the document (on pages one and three), it makes no reference to the arbitration provision, which appears on page four of the seven-page PWCR document.

Additionally, [***21]  the court notes that the “Venue and Jurisdiction” clause, which appears on page three of the PWCR, states that if “legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction.” This provision clearly conflicts with the arbitration clause at issue, which mandates that all claims “arising out of [one’s] participation in the TM Event shall be submitted to binding arbitration.” Given that the plaintiffs would have viewed (in the scrollable text box) the “Venue and Jurisdiction” provision first, the court [****8]  finds it highly unlikely that they would have been placed on inquiry notice of the arbitration provision, which appeared on a subsequent page in the agreement.

 [*856] HN7[] As noted above, the party seeking to compel arbitration bears the burden of establishing that an agreement to arbitrate exists (see
Seneca Ins. Co. v Secure-Southwest Brokerage, 294 AD2d at 212), which Tough Mudder has failed to do. Under the circumstances presented here, the court finds that the arbitration provision was not sufficiently conspicuous to place the plaintiffs on inquiry or constructive notice and, therefore, is [***22]  not enforceable (see
Specht v Netscape Communications Corp., 306 F3d at 32; Applebaum, 263 F Supp 3d at 465). Further, due to the conflicting provisions regarding litigation and arbitration, the arbitration provision is void due to ambiguity. Accordingly, Tough Mudder’s motion to stay the action and compel arbitration is denied.

General Obligations Law § 5-326

[2] As to plaintiffs’ argument that the waiver and release provision set forth in the PWCR (exhibit F at 3) is invalid pursuant to General Obligations Law § 5-326, the court agrees. That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a “place of amusement or recreation” for which a fee [**836]  is paid (General Obligations Law § 5-326; see
Rogowicki v Troser Mgt., 212 AD2d 1035, 623 NYS2d 47 [1995]; Blanc v Windham Mtn. Club, 115 Misc 2d 404, 454 NYS2d 383 [1982], affd
92 AD2d 529, 459 NYS2d 447 [1983]). The terms of this statute apply to the plaintiffs herein, who paid a fee to use Tough Mudder’s obstacle course, which, contrary to Tough Mudder’s assertion, is a place of recreation (see
Leftow v Kutsher’s Country Club Corp., 270 AD2d 233, 234, 705 NYS2d 380 [2000]). Indeed, the nature of the TM event as described by Tough Mudder—a rigorous, athletic competition requiring proper training—is comparable to the other activities, such as horseback riding, auto racing, cycling and skiing, which have been held to be covered by General Obligations Law § 5-326. Furthermore, Tough Mudder’s assertion that, unlike the TM event, such activities are “relaxed [***23]  and undemanding” and “do not necessitate any research or physical preparation” is an inaccurate and absurd distinction. Thus, the PWCR’s waiver provision, waiving defendants’ liability for “ordinary negligence,” violates General Obligations Law § 5-326 and is therefore void (see
Garnett v Strike Holdings LLC, 64 AD3d 419, 882 NYS2d 115 [2009] [applying section 5-326 where plaintiff paid a fee to use the recreational facility];  [*857] Alibey v Tough Mudder Inc., 2018 NY Misc LEXIS 4883, 2018 NY Slip Op 32743(U), *2-3, 2018 WL 5298473, at *2 [Sup Ct, Kings County 2018]; Hansen v Tough Mudder, Inc., Sup Ct, Kings County, 2018, index No. 515072/15).

However, as Tough Mudder correctly argues, the unenforceable provisions of the PWCR do not nullify the entire agreement. HN8[] Where an agreement consists partially of an unlawful objective, the “court may sever the illegal aspects . . . and enforce the legal ones, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.” (Mark Hotel LLC v Madison Seventy-Seventh LLC, 61 AD3d 140, 143, 872 NYS2d 111 [2009].) “[W]hether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being.” ( [****9] Matter of Wilson, 50 NY2d 59, 65, 405 NE2d 220, 427 NYS2d 977 [1980].)

Here, the waiver of liability provision in the PWCR releasing Tough Mudder from liability, as well as the arbitration clause, are severable from the remainder of the PWCR agreement on the [***24]  ground that the unenforceable provisions are incidental to the legal aspects and not the main objective of the agreement. Further, the severability provision in the PWCR reflects the intent of the parties that the legal provisions of the agreement be severed from any provisions determined to be void and unenforceable.

Conclusion

For the reasons state above, Tough Mudder’s motion to compel arbitration and stay the action is denied.


Restatement 2d of Torts, § 302

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

Everyone 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 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

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Why you should always be a member of the trade association that represents the activity you provide?

Trade 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?

  1. 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.
  2. 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?
  3. Education: The annual conference of most trade associations is usually full of speakers who can provide a ton of education for your business.
  4. 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.
  5. 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.
  6. 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.
  7. Fun: Attending a trade association conference is fun. They are not all work.
  8. 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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com

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www.recreation-law.com

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#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

Entities and Taxation

Choosing 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
1-10

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
1-10

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)

Kibler 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.

———


Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

Bourgeois v. Snow Time, Inc.

 

 

Superior Court of Pennsylvania

August 14, 2018, Decided; August 14, 2018, Filed

No. 1086 MDA 2017

Reporter

2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

RAY M. BOURGEOIS AND MARY ANN I. BOURGEOIS, Appellants v. SNOW TIME, INC. AND SKI ROUNDTOP OPERATING CORPORATION

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History:  [*1] Appeal from the Order Entered June 19, 2017. In the Court of Common Pleas of York County Civil Division at No(s): 2015-SU-001900-71.

Judges: BEFORE: OTT, J., DUBOW, J., and STRASSBURGER,* J. Judge Ott joins the memorandum. Judge Strassburger files a dissenting memorandum.

Opinion by: DUBOWS

Opinion

MEMORANDUM BY DUBOW, J.:

Appellants, Ray M. Bourgeois and Mary Ann I. Bourgeois, appeal from the Order entered in the York County Court of Common Pleas granting the Motion for Summary Judgment filed by Appellees, Snow Time, Inc. and Ski Roundtop Operating Corporation.1 Appellants challenge the trial court’s finding that Appellants could not establish that Appellees acted recklessly or with gross negligence. After careful review, we agree with the trial court that Appellants failed to provide an expert report that articulated a relevant standard of care. As a result, Appellants failed to establish that Appellees had a duty to Appellants and, thus, acted recklessly or were grossly negligent in placing deceleration mats at the end of the tubing run. We affirm the Order of the trial court.

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen [*2]  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.

Appellants filed a Complaint against Appellees on July 24, 2015, asserting claims for negligence, gross negligence, recklessness, and loss of consortium.

On February 14, 2017, Appellees filed a Motion for Summary Judgment, which the trial court granted on June 19, 2017.

This timely appeal followed. Appellants filed a court-ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial court filed a Pa.R.A.P. 1925(a) Opinion, incorporating its Opinion in Support of the Order granting the Motion for Summary Judgment.

Appellants raise the following issues for our review:

1. Did the trial court err in granting [Appellees’] Motion for Summary Judgment when it disregarded [Appellants’] liability expert reports, which support the conclusion that, based on the evidence of record, that in placing large rubber kitchen mats, folded in half, on the snow and in the path of its patrons who were traveling at high speeds, [Appellees] acted recklessly and/or with gross negligence? [*3] 

2. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, by holding that, as a matter of law, [Appellees] were not reckless and/or grossly negligent, in that the trial court disregarded genuine issues of material fact showing recklessness and/or gross negligence, including but not limited to the following:

(a) the manufacturer of the inner tube [Appellees] provided Mr. Bourgeois specifically warned [Appellees] not to place obstacles, such as large folded rubber kitchen mats, in the path of tubing participants;

(b) [Appellees] deliberately placed obstacles-large, heavy, folded kitchen mats that [Appellees] knew were not designed for snow tubing and which would cause tubing participants to come to an abrupt stop during high-speed conditions-directly in Mr. Bourgeois’s path;

(c) [Appellees] knew that folding the large mats made them obstacles as the mats were fixed heavy masses that protruded high off the surface of the snow;

(d) [Appellees] had actual and/or constructive knowledge of similar incidents involving the folded kitchen mats prior to Mr. Bourgeois’s catastrophic accident;

(e) [Appellees] acknowledged in their written warnings that their tubing runs-including [*4]  their use of large rubber mats to stop speeding tubing patrons-posed a risk of grievous injury or death to its patrons; and

(f) the risk of grave harm posed by the folded rubber kitchen mats to [Appellees’] snow tubing patrons was obvious and readily apparent to a reasonable person?

3. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, in that the trial court relied upon the testimony of [Appellees’] own employees-in contravention of the Nanty-Glo[]2 holding-to conclude as a matter of law that [Appellees] did not know or have reason to know that using folded kitchen mats to bring its fast-moving snow-tubing patrons to an abrupt stop did not pose a risk of serious bodily harm or death to its patrons?

4. Did the trial court err in granting [Appellees’] Motion for Summary Judgment as to [Appellee] Snow Time, Inc., when (a) the Release signed by Mr. Bourgeois did not name Snow Time as a signatory, and (b) there were genuine issues of fact that [Appellee] Snow Time directly participated and acted negligently with regard to Mr. Bourgeois?

Appellants’ Brief at 6-7.

Issues 1 and 2 – Summary Judgment

In their first two issues, Appellants argue that the trial court erred [*5]  in granting Appellees’ Motion for Summary Judgment by disregarding the conclusions of their experts that Appellees’ conduct was reckless and grossly negligent. Appellants’ Brief at 35, 42. In support, Appellants emphasize certain evidence and argue that the record contains genuine issues of material fact that make the grant of summary judgment inappropriate. Based on the following discussion, however, we find that Appellants did not establish a prima facie claim for recklessness or gross negligence and thus, the trial court did not err in granting summary judgment on these issues.

Our standard of review of the grant of a Motion for Summary Judgment is as follows. We “may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (Pa. 2010). However, when there are no genuine issues as to any material fact and the only issue on appeal is a question of law, our standard of review is de novo.” Id.

In order to survive a motion for summary judgment, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 737 (Pa. 1998) (citation omitted). If the non-moving [*6]  party fails to establish one of the essential elements of her claim, the movant has valid grounds for summary judgment. Babb v. Ctr. Cmty. Hosp., 2012 PA Super 125, 47 A.3d 1214, 1223 (Pa. Super. 2012) (citation omitted).

It is well-established that when a trial court considers a motion for summary judgment that includes an expert report, the trial court must determine, inter alia, whether the expert sufficiently supports his conclusions in his expert report:

At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. This clearly includes all expert testimony and reports submitted by the non moving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact.

Summers, supra at 1161 (citations omitted).

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 [*7]  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:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the mats at the bottom of hills for snow tubers. . . . The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Appellant] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Ct. Op., 7/19/17, at 18-19. The trial court similarly found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. Appellants challenge these conclusions.

We first turn to the definitions of recklessness and gross negligence. The Pennsylvania Supreme Court, citing the [*8]  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.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012), citing
Restatement (Second) of Torts § 500 (emphasis added). Therefore, an element of recklessness is the failure of the defendant to do any act that he has a duty to do for the plaintiff.

That failure, however, must be an intentional failure. In other words, a plaintiff must establish that a defendant consciously acted or failed to act. Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.” Id.

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 [*9]  standard of care.” Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (Pa. Super. 1991).

Generally, it is for the jury to determine whether a party acted grossly negligent. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616, 621 (Pa. Super. 1984). However, a court may decide this question as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence. Id.

Expert testimony is often required to opine about a defendant’s duty to the plaintiff, i.e., the standard of care that defendant failed to meet. In particular, an expert must opine about the relevant standard of care, the manner in which defendant’s actions deviated from the standard, and the manner in which that deviation caused the plaintiff’s harm. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (Pa. 2003) (medical expert report must describe standard of care so as to establish duty, breach of duty, and causation). See also Zokaites Contracting Inc. v. Trant Corp., 2009 PA Super 35, 968 A.2d 1282, 1287 (Pa. Super. 2009) (in a professional negligence action, expert testimony is required to establish the “relevant standard of care applicable to the rendition of the professional services” and that the defendant’s conduct fell below that standard); Truax v. Roulhac, 2015 PA Super 217, 126 A.3d 991, 997-99 (Pa. Super. 2015) (discussing plaintiff’s use of an engineer’s expert testimony to establish the elements of negligence in a premises liability action).3 If the expert fails to provide the required information, a trial [*10]  court may conclude that the report is insufficient as a matter of law. Id.

We now turn to the theory of Appellants’ case. Appellants allege in their Complaint, inter alia, that Appellees’ use of folded deceleration mats at the base of its tubing run was reckless and grossly negligent because the use of the mats caused Appellant’s snow tube to stop suddenly and unexpectedly, resulting in the serious injuries that Appellant sustained. Appellants assert the same theory on appeal by arguing that Appellees engaged in reckless and grossly negligent conduct when they placed “large, heavy rubber mats in [Appellant’s] path … and that the mats could bring [Appellant] to an abrupt, immediate stop.”4
See Appellants’ Brief at 36.

In support of Appellants’ response to Appellees’ Motion for Summary Judgment, Appellants presented two expert reports that concluded that Appellees engaged in reckless and grossly negligent conduct. Neither expert, however, set forth a relevant standard of care and, thus, the duty that Appellees failed to meet.

Appellants’ first expert, Mark DiNola, is an expert in the field of ski and snow tubing risk management. When addressing Appellees’ standard of care, he did so generally [*11]  and failed to articulate a specific standard of care or industry standard for the use of deceleration mats in a tubing run-out area. In particular, DiNola first concluded generally that Appellees’ “decision to use deliberately deployed folded anti-fatigue rubber mats as a deceleration device constitutes an extreme departure from the ordinary standards of conduct for a tubing park operator.” DiNola Report, 3/15/17, at 40 (emphasis added). 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.

In another portion of the report, however, DiNola discusses a standard of care set forth in National Ski Areas Association’s “Tubing and Operations Resource Guide.”5 That “standard of care,” however, addresses the length of a tubing run-out, not a standard of care for the use of mats as deceleration devices. Thus, this portion of the expert report does not sufficiently articulate the applicable standard of care or conduct to support Appellants’ theory of this case.

The second expert report, written by Gordon Moskowitz, [*12]  Ph.D., a mechanical and biomechanical engineering expert, does not set forth any standards of care for tubing operators. Thus, this report is not relevant to the determination of whether Appellees engaged in reckless or grossly negligent conduct in failing to meet a standard of care by using folded rubber mats in the deceleration area.

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.

Issue 3 – Nanty-Glo Rule

In their third issue, Appellants claim that the trial court erred in concluding, solely based on Appellees’ employees’ testimony, that Appellees were not aware of the risk of harm posed by their use of anti-fatigue mats in the deceleration areas of the tubing run. Appellants’ Brief at 55.

The Nanty-Glo Rule limits the trial [*13]  court’s use of affidavits or depositions to decide motions for summary judgment. The Rule provides that a trial court, when ruling on a motion for summary judgment, may not rely solely upon the moving party’s own testimonial affidavits or depositions, or those of its witnesses, to determine that no genuine issue of material fact exists. Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916, 918 (Pa. Super. 1992) (citation and footnote omitted).

Before applying the Nanty-Glo Rule, however, the trial court must first determine whether the plaintiff has alleged sufficient facts to establish a prima facie case:

Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the fact-finder by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.

DeArmitt v. New York Life Ins. Co., 2013 PA Super 161, 73 A.3d 578, 594-95 (Pa. Super. 2013) (citation omitted and emphasis added).

As discussed above, the trial court properly found as a matter of law that Appellants’ experts had not opined about a relevant standard of care [*14]  and, thus, Appellants could not establish facts sufficient to make out a prima facie case of recklessness or gross negligence. Accordingly, Appellants have not demonstrated the applicability of the Nanty-Glo Rule. This third issue, thus, warrants no relief.

Issue 4 – The Release of Snow Time, Inc.

Lastly, Appellants contend that the trial court erred in dismissing the negligence claim against Snow Time, Inc. because the Release at issue did not specifically name or identify Snow Time, Inc. Appellants’ Brief at 61. We disagree.

The Release at issue states, in pertinent part, that Appellants release from negligence claims Appellee Ski Liberty Operating Corporation and its owners:

In consideration of being allowed to use the tubing area at Liberty, Whitetail or Roundtop, I HEREBY AGREE NOT TO SUE AND TO RELEASE, SKI LIBERTY OPERATING CORP., WHITETAIL MOUNTAIN OPERATING CORP. AND SKI ROUNDTOP OPERATING CORP., AS WELL AS THEIR OWNERS, AGENTS AND EMPLOYEES FROM ANY AND ALL LIABILITY RELATED TO INJURY, PROPERTY LOSS OR OTHERWISE RELATED TO MY USE OF THE TUBING FACILITY, REGARDLESS OF ANY NEGLIGENCE ON THE PART OF THE SAME. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE SAME, FROM ANY CLAIM FOR LIABILITY [*15]  RELATED TO INJURY AS A RESULT OF MY OR MY CHILD’S USE OF THE FACILITIES, REGARDLESS OF ANY NEGLIGENCE, RECKLESSNESS OR IMPROPER CONDUCT.

Release (emphasis added).

It is undisputed that Appellee Snow Time, Inc. owns Appellee Ski Roundtop Operating Corporation. Although the Release does not specifically name Appellee Snow Time, Inc., the Release still covers Appellee Snow Time, Inc. because the Release clearly and unambiguously covers the owner of Ski Roundtop Operating Corporation.

Moreover, Appellants do not otherwise contend that the Release is ambiguous. They raise no claims as to the Release’s general validity, conspicuity, or enforceability. Further, Appellants cite no authority to support their implication that unless the Release specifically names an owner, the term “owner” does not apply to it.

We agree with the trial court that the Release applied to Appellee Snow Time, Inc., as the owner of Ski Roundtop Operating Corporation. Therefore, the Release applied to general negligence claims against Appellee Snow Time, Inc. and Appellants’ claim to the contrary is without merit.

Based on the foregoing, we affirm.

Order affirmed.

Judge Ott joins the memorandum.

Judge Strassburger files a [*16]  dissenting memorandum.

Date: 8/14/18

Dissent by: STRASSBURGER

Dissent

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

In this case, the learned Majority holds that the trial court correctly concluded that Appellants could not establish a claim for recklessness or gross negligence as a matter of law at the summary judgment stage.1 Because I believe a reasonable jury could find that the facts constitute gross negligence and/or recklessness, I respectfully dissent. See Albright v. Abington Mem’l Hosp., 548 Pa. 268, 696 A.2d 1159, 1164 (Pa. 1997) (holding that a court may only take issue of gross negligence away from 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“).

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 [*17]  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.

Trial Court Order Granting Summary Judgment,2 6/19/2017, at 2-3.

What the trial court refers to as “deceleration mats” are actually rubber anti-fatigue mats commonly used as a walking surface in commercial kitchens. Spahr Deposition, 7/14/2016, at 25; Weeden Deposition, 7/20/2016, at 64-65; Whitcomb Deposition, 9/1/2016, at 95-96. The Resort inherited some of the mats from another resort. Whitcomb Deposition, 9/1/2016, at 96. When the Resort needed additional mats, Matt Weeden, the manager of the tubing park at the Resort, testified that he attempted to match the mats in use and “asked [the Resort’s] food and beverage guy where he got his and basically shopped around and compared the mats and figured out exactly what they were and ordered them.” Weeden Deposition, 7/20/2016, at 65. The mats are [*18]  not specifically designed for snow tubing. Id. Appellees used the mats to assist the snow tube rider to slow down at the bottom of the hill and to minimize collisions between a snow tube and people walking around at the bottom of the hill. Reichert Deposition, 7/13/2016, at 34-35; Whitcomb Deposition, 9/1/2016, at 81, 89.

The vinyl snow tubes used by the Resort have a written warning stating that the product is designed to be used on hills with no obstacles with adequate room to stop. Appellants’ Brief in Opposition to Motion for Summary Judgment, 3/16/2017, at Exhibit E. Appellees never conducted any studies as to the effect of a vinyl tube encountering a rubber mat. Whitcomb Deposition, 9/1/2016, at 96. In 2004, Appellees added elevation to the snow-tubing hill in order to create a more fun experience for their customers. Whitcomb Deposition, 9/1/2016, at 53-54. When they did so, they extended the runout “a little bit,” because making the hill higher resulted in the riders traveling faster down the hill and a farther distance at the bottom. Id. at 54-56.

Two of the safeties3 testified that they are aware that the speed that riders travel depends on various factors, including weather conditions, [*19]  the time of day, and the number of people going down a slope at a time. For example, riders went faster when it was colder. Spahr Deposition, 7/14/2016, at 34; Reichert Deposition, 7/13/2016, at 35-37. Nevertheless, the Resort did not measure speed other than by observation. The safeties and tubing supervisors determined when and how to use the mats depending on their observations of how the lanes were running, the speed riders were moving, and where the tubes were stopping, but there were no formal policies or procedures about when and how to use the mats. Reichert Deposition, 7/13/2016, at 35-38, 45; Whitcomb Deposition, 9/1/2016, at 98. The mats sometimes lay flat; sometimes they were folded. One of the tubing safeties observed that folded mats usually slowed down the rider more than flat mats due to an increase in friction. Reichert Deposition, 7/13/2016, at 36.

Appellants obtained the opinions of two experts. The first, Mark A. Di Nola, is an expert in ski and snow tubing risk management. The second, Gordon Moskowitz, Ph.D., is a an expert in mechanical and biomechanical engineering.

Di Nola opined that Bourgeois was severely injured as a direct result of Appellees’ deliberate actions, [*20]  which include the following:

[1.] [Appellees’] conscious decision to employ an operationally reckless company policy mandating the deployment of deliberately placed folded anti-fatigue rubber mats at the bottom of the tubing hill as deceleration devices with explicit knowledge that the deliberately deployed folded anti-fatigue rubber mats were not designed or tested for use as deceleration devices[.]

[2.] [Appellees’] conscious decision to attempt to transfer the increased risks to their guests rather than make the tubing experience safer for consumers by eliminating the increased risk as they did only after [Bourgeois’s] tragic incident, placing their corporate financial needs over the needs of their guests.

[3.] [Appellees] consciously deployed snow tubes and provided them to their patrons in a manner that directly violated the manufacturer’s warning label by using the tubes on hill with deliberately placed obstacles that were set out in an attempt to offset the fact that the hill did not provide adequate room to stop.

[4.] [Appellees’] conscious decisions described above increased the risk of serious bodily injury to riders over and above those inherent in the activity of snow tubing [*21]  in the Commonwealth of Pennsylvania.

[5.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and constitute an extreme departure from the ordinary standards of conduct for a ski area in the Commonwealth of Pennsylvania.

[6.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and are a proximate cause of [Bourgeois’s] injuries.

Di Nola Report, 3/15/2017, at 41-42.

Moskowitz opined, inter alia, that

***

2. The use of folded anti-fatigue mats as a deceleration device would expose tube riders to the likelihood of their tube encountering a sudden abrupt stop, particularly when the mats were folded with the ‘nubs’ exposed to the surface of the tube.

3. The stopping effect of a tube encountering a folded anti-fatigue mat with nubs exposed should have been readily apparent to [Appellees] well before [Bourgeois’s] accident of February 17, 2013.

4. Tube riders who travelled head [] first (on their stomachs) on ‘fast’ days would be subject to a greater [*22]  risk of suffering injuries similar to those experienced by [] Bourgeois.

***

6. Arranging the mats in a folded position enhances the risk of a sudden tube stop.

7. The variations in weather … would have resulted in [Bourgeois’s] tubing experience being significantly faster at or around 3:00 p.m. when his accident occurred than [on Bourgeois’s previous runs down the hill].

Moskowitz Report, 3/14/2017, at 20. Moskowitz also opined that Appellees

knew or should have known that tubers traveling at a high rate of speed would find their tube brought to an abrupt stop when it encountered a folded mat, with that risk increasing further when the mat was folded with the nubs exposed to the bottom of the tube. Analysis indicates that a tube and rider in the prone position with [Bourgeois’s] physical measurements, facing forward and traveling at approximately 15 mph would enter into a flipping motion upon contact with a folded mat due to the resulting friction and the fold. [B]ased upon the known weather conditions and [Bourgeois’s] weight, his speed at the point of encountering the folded mat was well in excess of this speed.

Id. at 16.

After discovery closed, Appellees moved for summary judgment, arguing, [*23] 
inter alia, that Appellants failed to support claims for reckless conduct, because Appellants used the mats in a matter customary to the industry without incident up until the incident. Appellees’ Motion for Summary Judgment, 2/14/2017, at ¶¶ 28-41; Appellees’ Memorandum of Law in Support of Motion for Summary Judgment, 2/14/2017, at 17-20 (pagination supplied). Appellees later argued that the record also did not support a claim of gross negligence. Appellees’ Reply Brief in Support of Motion for Summary Judgment, 3/31/2017, at 24. Appellees contended that Appellants’ expert, Moskowitz, attributed Bourgeois’s injuries to a “confluence of … interlinked events” and thus, Appellees would have no way of knowing or any reason to have known such events could have arisen to cause harm. Id. Appellants opposed Appellees’ motion for summary judgment by presenting the evidence referenced supra.

As the Majority recounts, the trial court stated the following regarding its determination that Appellants failed to set forth evidence support their claims of gross negligence and recklessness:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the [*24]  mats at the bottom of hills for snow tubers. … The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Bourgeois] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Court Order Granting Summary Judgment, 6/19/17, at 18-19.

The trial court further found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. at 19. See also id. at 22-23 (discussing gross negligence).

Noticeably absent from the trial court’s discussion is any mention of Appellants’ expert reports. “At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party.” Greely v. W. Penn Power Co., 2017 PA Super 33, 156 A.3d 276, 282-84 (Pa. Super. 2017). This includes all expert reports. In fact, this Court has held that when a trial court’s opinion does not reflect consideration of the non-moving party’s expert reports, this is error as it signals [*25]  a failure to consider all evidence of record in a light most favorable to the non-moving party. Id.

The Majority simply ignores the trial court’s failure to consider Appellants’ expert reports and undergoes its own analysis of the reports. It concludes that neither expert set forth a relevant standard of care and thus, the duty that Appellees failed to meet. Majority Memorandum at 8-10. The Majority dismisses the Moskowitz report entirely as irrelevant, and rejects the Di Nola report as conclusory. Id.

However, in my view, both experts satisfactorily assisted Appellants in establishing gross negligence and recklessness. Woven throughout the reports are detailed references to the way that Appellees grossly deviated from the standard of care. One cannot seriously dispute that Appellees owe their patrons, who are riding on a vinyl tube without a steering or stopping mechanism down a steep snow-covered hill on a course that Appellees designed, a duty to ensure that the patrons are able to stop safely without serious injury at the bottom. One hardly needs an expert to establish that placing a stationary object, which is designed for an entirely different use, in the path of a fast-travelling [*26]  snow tube rider in the hopes of slowing down the rider could instead, under certain foreseeable conditions, cause the rider to stop abruptly and eject the rider in a manner resulting in serious injury. This is particularly the case when Appellees have not conducted or reviewed studies to determine the effect of placing the mat in the rider’s path under various conditions. Further, a jury could find that risk of serious injury was substantially increased without a standardized method to measure riders’ specific speeds, assess conditions, or arrange the mats. Moreover, not only were the mats used by Appellees not designed for the purpose for which Appellees used them, they used the snow tubes in a manner that was contradicted expressly by the warning on the label – a label, by the way, which was illegible on Appellant’s tube.

The trial court states “[t]here is no evidence that [Appellants] were made aware of the risks of folding the deceleration mats and no evidence that any other incidents happened on the day Plaintiff suffered his injury[,] which would have put [Appellants] on notice that the mats were a problem. Trial Court Order Granting Summary Judgment, 6/19/2017, at 20 (emphasis [*27]  added). However, Appellants need not prove that Appellees actually were aware of the risks, just that Appellants had reason to know of facts which would lead a reasonable person to realize that the person’s conduct creates an unreasonable risk of physical harm to another and that such risk is substantially greater than that which is necessary to make the person’s conduct negligent. Tayar, 47 A.3d at 1200-01.4

In my view, Appellants have put forth enough evidence at this [*29]  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.

End of Document


Cyclists injured on a bike path after running into a downed tree, could not recover because the association that assisted in taking care of the bike path owed no duty to the cyclists.

If there is no duty, there is no liability. Always check to make sure there really is a duty owed to someone before you start to claim or defend negligence actions.

Citation: DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466, 2019 Tex. App. LEXIS 466, 2019 WL 311517

State: Texas; Court of Appeals of Texas, Second District, Fort Worth

Plaintiff: Norman Delamar

Defendant: Fort Worth Mountain Biker’s Association

Plaintiff Claims: general negligence and gross negligence

Defendant Defenses: No Duty

Holding: For the Defendants

Year: 2019

Summary

City parks had an agreement with the local cycling group to assist in keeping the bike pats in good shape. The ultimate responsibility for the bike paths was still held by the city. An injured cyclist who ran into a downed tree could not sue the cycling group because they owed no duty to the cyclists because the association did not have the authority from the city and did not accept a duty with the agreement with the city.

Facts

On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.

Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.

The city’s contract with the association outlined things the association was to do to assist the city in keeping the trail available and generally covered trail maintenance. The city did not give up its right to control and manage the park where the trails were located.

The trial court dismissed the plaintiff’s claims, and this appeal ensued.

Analysis: making sense of the law based on these facts.

The first issue the court reviewed was this, a negligence claim or a premises liability claim.

Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”

The differences are subtle, but:

To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.

The difference is, one is based on the actions of the defendant, and the other is based on a condition of the land.

While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence.

As similar as they may appear to be, you cannot recover on the same set of facts for both a negligence action and a premise’s liability action. Even the court stated understanding the differences could be “tricky.”

The trial court and appellate court found the plaintiff’s claims sounded in premise’s liability.

However, the court went on to discuss the plaintiff’s allegations that his claim was a negligence claim. The issue was whether the association had a legal duty to the plaintiff.

The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.”

Of the three, foreseeability as the dominant consideration, but not the sole consideration the court must review. Foreseeability alone is not sufficient to create a duty. “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.”

Although the association had some contractual responsibility for the trails, there was nothing the association could do about the trees. Only the city had the use of the chainsaws, and only the city could determine if a tree could be removed and then remove it.

And although it was foreseeable, a tree could fall on the trail; the issue required more analysis than that. The bike path was surrounded by thousands of trees. The plaintiff had ridden that path just two days earlier and admitted that the tree could have fallen two hours before he hit it. Although a tree falling was foreseeable, it was outside of the scope of something that you can do anything about, and on top of that the association had no authority to do anything about trees.

Finally, the agreement between the city and the association said nothing about the association agreeing to assume a legal duty to maintain the safety of the trails.

Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.

Because there could be no gross negligence if there was no general negligence, the plaintiffs gross and ordinary negligence claims were dismissed.

So Now What?

Foreseeability is a good thing for non-lawyers running a business or program to understand. Are your actions or inactions going to create a danger to someone.

The case does not state whether the city had any liability to the plaintiff, only the issues discussed in this decision were between the plaintiff and the defendant association.

More importantly, the court looked at trees falling as something that no one could really control. It was not liked anyone, the association or the city could come close to identifying trees that may fall in parks.

What do you think? Leave a comment.

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#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,

trail, summary judgment, general negligence, premises liability, premises, trial court, legal duty, no evidence, summary judgment motion, pet, hearsay, grant summary judgment, premises liability theory, mountain bike, balancing, nonmovant, falling, dangerous condition, gross negligence, negligence claim, downed tree, contemporaneous, foreseeability, factors, cause of action, yacht club, scintilla, injuries, bicycle, cases


Thank you! Happy Memorial Day

To 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

My first post on this site was February 10, 2008, Releases 101

Happy Birthday to a group of 1’s & O’s someplace out there in the world.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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By Recreation Law    jim@rec-law.us
James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,



Are you complying with the current FTC rules when you ask someone to tag you on a social network?

Anyone who is paid, related through business or family or receives a gift from the company when they are tagging on social media must indicate that in their post with #ad or #sponsored.

New Federal Trade Commission rules now require business that have a relationship with an influencer to require the influencer to also identify the relationship as one that is sponsored. The FTC uses the term Endorser rather than influencer.

The new regulations are based on the truth in advertising regulations which can be found at: Guides Concerning the Use of Endorsements and Testimonials in Advertising

The FTC has determined that social media now falls within the purviews of the truth in advertising act and the FTC. The FTC has also already levied its first fines against two YouTube stars for their actions. See Three FTC actions of interest to influencers.

Because tagging on social media is now considered deceptive advertising, the FTC can levy civil fines for violations of its rules.

Definitions

Affecting the Consumer Judgement: Whether or not you believe the disclosure will affect the judgement of the influence or whether the influencer believes it will affect his or her judgment still requires disclosure.

Affiliate Program: is a program where the author receives a commission or payment from the retailer or brand for linking to their site

Aspirational Endorsements: Writing about a product or brand that you would like to get.

Deceptive Practice: An act or practice is deceptive if it misleads “a significant minority” of consumers

Endorsement: endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.
A Testimonial is the same as an endorsement
Tagging a product, brand or company name in a post is an endorsement

Endorser: The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser and may be an individual, group, or institution.
An influencer is an endorser

Expert: is an individual, group, or institution possessing, as a result of experience, study, or training, knowledge of a particular subject, which knowledge is superior to what ordinary individuals generally acquire.

Influencer: Endorser

Like Buttons: are not disclosures. You must write or post a video or photograph of the product to classify it as an endorsement to qualify as a disclosure.

Material Connection: a connection that might affect the weight or credibility that consumers give the endorsement – like a business or family relationship, a payment, or the gift of a free product. That connection should be clearly and conspicuously disclosed unless it’s already clear from the context of the communication.

Negative Endorsements: still require disclosure

Payment: something of value of any value, a gift, money, the product itself, free stays or entrances at amusements, hotels, etc. that you mention in a post. The payment may have not actual value, if the influencer receives any type of benefit from the brand.
Payments or contributions to charity by a brand based on posts are subject to the rules.

Product:
includes any product, service, company or industry.

Relationship: Relationships require disclosure if there is a family connection or a business connection. Both connections require fuller disclosures.

Repeated Endorsements: Every time an influencer writes about a product or brand in a positive way requires a disclosure. Disclosing once and then writing about the product later requires an additional disclosure.

Tagging: Tagging falls under the disclosure rules. If you tag a product of a brand that provided you with a payment, you must disclose.

Visibility: The disclosure should catch users’ attention and be placed where they aren’t likely to miss it.

Generally, Endorsements must:

  1. must be truthful and not misleading.
  2. If there’s a connection between an endorser and the marketer of the product that would affect how people evaluate the endorsement, disclose it clearly and conspicuously.
  3. If the advertiser doesn’t have proof that an endorser’s experience represents what consumers will achieve by using the product, clearly and conspicuously disclose the generally expected results in those circumstances.

The test is whether or not knowing the endorsement or mention would influence the person reading post. Consequently, everything promoted by a brand is an endorsement because the purpose is to influence consumers.

The legal responsibility to make sure influencers understand the rules falls upon the brand. And influencers must disclose that relationship to the public.

The FTC has come up with the following rules:

  • Disclosures must be clear. They cannot be unambiguous. It must be clear that the social media post is being purchased, even if that purchase is a gift
  • Disclosures must be clear and conspicuous. Clear and conspicuous means
    • close to the claims to which they relate
    • in a font that is easy to read;
    • in a shade that stands out against the background;
    • for video ads, on the screen long enough to be noticed, read, and understood;
    • for audio disclosures, read at a cadence that is easy for consumers to follow and in words consumers will understand.
  • Hashtags can be used to make this disclosure. So far, the only hashtags are #Sponsored or #ad. There may be an opportunity to use the hashtag #Partner if it includes the name of the brand such as #PartnerManufacturer or #Manufacturer_Partner where Manufacturer is replaced with the Manufacturer or Brand name.
  • The disclosure must be visible and not hard to miss. Hashtags cannot be hidden in the middle of a group of hashtags and the cannot be added to the end of another hashtag. The disclosure must be easily spotted by the consumer.
  • Disclosures on Instagram must be above the more button in the first three lines of text.
  • #XYZ_Ambassador may be sufficient where the XYZ is the name of the brand

Examples of what the FTC thinks is a proper disclosure include:

  • Company X gave me [name of product], and I think it’s great
  • The products I’m going to use in this video were given to me by their manufacturers.
  • Paid, unless you are an employee or co-owner

What does not work according to the FTC

  • Single disclosures on a homepage that some of the products have been given to you is not sufficient.
  • Video disclosures must be in the video. It is not sufficient to post the disclosure in the description.
  • Hyperlinks are not sufficient. The disclosure must be with the product endorsement
  • “#client” “#advisor” and “#consultant are not sufficient to be a disclosure
  • “#ambassador” or “#[BRAND]_Ambassador are insufficient to be a disclosure
  • hidden or buried in footnotes
  • in blocks of text people are not likely to read
  • in hyperlinks
  • Not hard to find,
  • Not tough to understand
  • Not fleeting
  • Not buried in unrelated details
  • Not if other elements in the ad or message obscure or distract from the disclosures, they don’t meet the “clear and conspicuous” standard.

Rules for Endorsers or Influencers

  • You can’t talk about your experience with a product if you haven’t tried it.
  • If you were paid to try a product and you thought it was terrible, you can’t say it’s terrific
  • You can’t make claims about a product that would require proof the advertiser doesn’t have
  • Any claims you make must have a reasonable basis for making those claims.

What about contests or Sweepstakes

They too fall within the frame work and require disclosure. Use of the words “contest” or “sweepstakes in a hashtag are sufficient.

The FTC places the liability for monitoring social media on the company or brands who have a duty to train and monitor their networks.

These rules apply to affiliate programs with retailers or manufacturers.

If you are an employee of a company making posts on social media about the company products you must include your employment in the post. If the actions or posts of the employee, even likes or shares could be viewed as an advertisement for the company than a disclosure must be made. The hashtag #Employee is not good enough, the hashtag #XYZBrand_Employee is.

References

Influencers, are your #materialconnection #disclosures #clearandconspicuous?

Guides Concerning the Use of Endorsements and Testimonials in Advertising

Three FTC actions of interest to influencers

The FTC Endorsement Guides: What People are Asking

Answering your questions about endorsements

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

 

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,



SRAM Recalls Bicycle Gear Hubs Due to Crash and Injury

Name of Product: SRAM i-Motion 3 internal gear hubs (coaster brake version) for bicycles

Hazard: The brakes in the gear hubs can fail, posing crash and injury hazards to the rider.

Recall Date: February 21, 2019

Recall Number: 19-069

Remedy: Refund

Consumers should immediately stop using bicycles with the recalled gear hubs and contact SRAM for instructions on how to receive a partial refund.

Consumer Contact: SRAM at 800-346-2928 from 10 a.m. to 7 p.m. ET Monday through Thursday and 10 a.m. to 6 p.m. ET on Friday or online at http://www.sram.com or http://www.zipp.com and click on “Recall Notice” for more information.

Pictures available here: https://www.cpsc.gov/Recalls/2019/SRAM-Recalls-Bicycle-Gear-Hubs-Due-to-Crash-and-Injury-Hazards

Recall Details

Units: About 7,000 (in addition, 700 were sold in Canada)

Description: This recall involves SRAM® i-Motion 3 three-speed internal gear hubs with a coaster brake installed on bicycles with no redundant braking system. The recalled hubs were sold on the following Electra® model bicycles: Electra Cruiser Custom 3i, Electra Coaster 3i, Electra Hawaii 3i, Electra Hawaii 3i 24 and Electra Straight 8. The recalled hubs were also sold as aftermarket parts for other bicycles. The recalled hubs have “SRAM i-Motion 3” printed on the hub shell and a brake arm extending from the axle of the hub.

Incidents/Injuries: SRAM has received five reports of brake failure, resulting in one minor injury to a rider.

Sold At:Specialty bicycle retailers nationwide from April 2010 through December 2018 for between $400 and $800 for Electra bicycles equipped with the recalled hubs and for about $90 for the recalled aftermarket gear hubs

Manufacturer(s):Heng Ying Machinery Co., Ltd. of Taoyuan City, Taiwan

Distributor(s):SRAM LLC, of Chicago, Ill.

Manufactured In: Taiwan

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Twitter: RecreationLaw

Facebook: Rec.Law.Now

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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, Recall, CPSC, Consumer Product Safety Council,

 


Not going to worry about California Proposition 65? Here are some facts from the California Attorney General’s office that may change your mind or at let you know how much money you are going to lose!

Before filing a lawsuit for a violation of California 65 violations law firms have to file a 60-day notice letter with the California Attorney General’s Office. After the settlement or lawsuit, the attorneys must report those (and the attorney general probably has to approve the settlements).

Here are some numbers and examples of the manufacturers and settlement amounts. Remember these settlements are prior to the new fines going into effect. After August 30, 2018 I suspect these numbers are going to skyrocket.

Year

Amount of Settlements

Civil Penalty

Attorney Fees & Costs

Total

2014 $29,482,280 $4,915,648 $21,047,746 $55,447,688.00
2015 $26,266,261.00 $5,108,341.00 $17,862,441.25 $55,447,688.00
2016 $26,226,761 $5,102,341 $17,828,941 $49,160,059.00
2017 $25,767,500 $4,843,142 $19,486,362 $50,099,021.00
$107,742,802.00 $19,969,472.00 $76,225,490.25 $210,154,456.00

That is a lot of money but those are totals. If you look at averages it is even scarier numbers.

Year

Total Settlement costs for the year

Number of Settlements

Average

2014 $55,447,688.00

663

$83,631.51
2015 $55,447,688.00

583

$95,107.53
2016 $49,160,059.00

582

$84,467.46
2017 $50,099,021.00

688

$72,818.34

References

2014 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/alpert-report2014.pdf

2015 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2015-prop65-full-rpt.pdf

2016 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2015-summary-report.pdf

2017 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2017-summary-settlements.pdf

From this site you can search the 60-day notices and see who has been targeted. Searches have found the following retailers and manufacturers on this site. https://oag.ca.gov/prop65/60-day-notice-search

Retailer Named

Manufacturer Named

Clavey Paddlesports AIRE Inc.
Backcountry.com Bear Vault Food Cannister
Backcountry.com Canyonwerks Bag
Backcountry.com Katadyn North America Inc
Backcountry.com Sawyer Paddles & Oars
Backcountry.com Tender Corporation; Adventure Medical Kits
Backcountry.com Amphipod, Inc
REI Topeak, Inc
REI Todson, Inc
REI Feedback Sports, LLC;
REI Advanced Elements, Inc.
REI Eagle Nest Outfitters, Inc
REI CAMP USA, Inc.
REI Shock Doctor Inc
REI Amphipod, Inc.
REI Bombardier Recreational Products, Inc.
REI Mountain Safety Research, Inc.
REI Cascade Designs, Inc.
REI Snow Peak USA, Inc.
REI Recreational Equipment, Inc.
REI Kelty, Inc.; American Recreation Products, LLC
REI Katadyn North America, Inc.
REI Recreational Water Products, Inc.
REI Bell Sports, Inc.
REI Specialized Bicycle
REI Shimano, Inc.;
REI Scott USA
REI Raleigh America
REI Quality Bicycle Products, Inc
REI Pacific Cycle, Inc
REI Kung Hsue She
REI Iron Horse Bicycle, LLC
REI Giant Bicycle, Inc
REI G. Joannou Cycle Co
REI Fuji American Advanced Sports, Inc
REI Felt Bicycles
REI Electra Bicycle Company, Inc
REI Dynacraft BSC, Inc
REI Cycleurope U.S.A., Inc
REI Cannondale Bicycle Corp.
REI Chia Cherne Industry Co. Ltd

Two Simple searches and 42 results and the big settlements have not started.

Do Something

If you are a manufacturer selling in the USA contact me NOW!

Every Manufacturer worldwide selling in California must meet these new Labeling Requirements. New California Proposition 65 warnings will become effective in one year.

California Proposition 65 is a nightmare for manufacturers and as usual, manufacturer bad dreams are felt by retailers.

Manufacturers Checklist for California Proposition 65

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

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,



Stresemann’s Bristlefront seen in Brazil for the 1st time in years

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Stresemann's Bristlefront, Ciro Albano
Lost and Found:
Stresemann’s Bristlefront
One of the world’s rarest birds, the Stresemann’s Bristlefront appears to be literally one bird away from extinction. In December 2018, after months of intensive searching, a lone bristlefront was observed in Brazil. This rediscovery renews hope that this species can be saved.Unfortunately, this Critically Endangered bird is confined to one of the most fragmented and degraded – and vulnerable – forests in the Americas.

Will more be found, and what will it take to save the world’s most imperiled bird?

Find Out Here
d737df06-af74-4d7e-b14a-e16f1707195c.jpg

Click above to access video and audio players

More Birds

6937e4e3-9885-4bb8-af3d-dcce874de055.jpg
Small Bird, Big City:
São Paulo Marsh Antwren
Esmeraldas Woodstar, Francisco Sornoza
Little Star:
Esmeraldas Woodstar
Pin-tailed Manakin, Aisse Gaertner
Tiny Dancer:
Pin-tailed Manakin
e9a0658d-60f6-4685-9ff1-44f33df4edee.jpg
Part of a Colorful Cohort:
Seven-colored Tanager

DONATE | BIRD OF THE WEEK ARCHIVE | SUBSCRIBE

American Bird Conservancy
abcbirds.orgPO Box 249, The Plains
Virginia, 20198
(540) 253-5780
info
Manage Subscription

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2nd Annual Idea Pitch Competition Focused on Adventure Recreation

Weber State University is excited to invite your students to participate in its 2nd Annual Outdoor Weber idea pitch competition focused on adventure recreation concepts. The contest allows any qualified University student worldwide to compete for a $45,000 grand prize to help them turn their idea into a real business opportunity. Second and third place are awarded $20,000 and $10,000 respectively.

The entry process is fairly simple and designed to encourage students to simply create a 90-second pitch video explaining their outdoor recreation product or service (examples of our finalists in 2018 found here) and upload to our Outdoor Weber website between January 14, 2019 and January 30, 2019.

· Beginning February 1, 2019, the videos will go live on the Outdoor Weber website for general public voting purposes.

· The public may vote once per day per IP address for their favorite idea(s).

· The 25 videos with the most votes will move on to the semi-final round of judging.

· Ten additional concepts from ten pre-determined regions across the U.S. will also be selected to move to the next round. All in all, 35 concepts will move forward to the semi-final round.

· A panel of semi-final judges will score and select 10 finalists from the 35 who will be invited to the beautiful Ogden, Utah valley to work with a team of mentors to help them refine their business ideas and make preparations for their concluding 10-minute presentations to the final judges.

· The final judges will then select the winners of the competition who will be announced at our final awards ceremony on the evening of Friday, March 22, 2019.

Many of the students and mentors from last year commented this was one of the most well organized and fun events they had ever been involved with. We would love to see your students compete and invite you to share with them and your colleagues. For more information, please visit our website. Thanks!

Cass

Cass Morgan, PhD

Program Director & Assistant Professor | Outdoor & Community Recreation

Department of Health Promotion and Human Performance

Weber State University

Ogden, UT 84408

Office: Swenson 404D

Email:cassmorgan

Phone: 801.626.6730

http://www.weber.edu/hphp/

uc?export=download&id=1aLLQqSJuNmGdzKSzt_4lf26-RfxtWfes&revid=0BxMTaGo6TFQuakViSlQ2clhEV3dTdTVSNTZ3OFhMTVhLd2VFPQ


Not going to worry about California Proposition 65? Here are some facts from the California Attorney General’s office that may change your mind or at let you know how much money you are going to lose!

Before filing a lawsuit for a violation of California 65 violations law firms have to file a 60-day notice letter with the California Attorney General’s Office. After the settlement or lawsuit, the attorneys must report those (and the attorney general probably has to approve the settlements).

Here are some numbers and examples of the manufacturers and settlement amounts. Remember these settlements are prior to the new fines going into effect. After August 30, 2018 I suspect these numbers are going to skyrocket.

Year

Amount of Settlements

Civil Penalty

Attorney Fees & Costs

Total

2014 $29,482,280 $4,915,648 $21,047,746 $55,447,688.00
2015 $26,266,261.00 $5,108,341.00 $17,862,441.25 $55,447,688.00
2016 $26,226,761 $5,102,341 $17,828,941 $49,160,059.00
2017 $25,767,500 $4,843,142 $19,486,362 $50,099,021.00
$107,742,802.00 $19,969,472.00 $76,225,490.25 $210,154,456.00

That is a lot of money but those are totals. If you look at averages it is even scarier numbers.

Year

Total Settlement costs for the year

Number of Settlements

Average

2014 $55,447,688.00

663

$83,631.51
2015 $55,447,688.00

583

$95,107.53
2016 $49,160,059.00

582

$84,467.46
2017 $50,099,021.00

688

$72,818.34

References

2014 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/alpert-report2014.pdf

2015 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2015-prop65-full-rpt.pdf

2016 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2015-summary-report.pdf

2017 Reports: https://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/2017-summary-settlements.pdf

From this site you can search the 60-day notices and see who has been targeted. Searches have found the following retailers and manufacturers on this site. https://oag.ca.gov/prop65/60-day-notice-search

Retailer Named

Manufacturer Named

Clavey Paddlesports AIRE Inc.
Backcountry.com Bear Vault Food Cannister
Backcountry.com Canyonwerks Bag
Backcountry.com Katadyn North America Inc
Backcountry.com Sawyer Paddles & Oars
Backcountry.com Tender Corporation; Adventure Medical Kits
Backcountry.com Amphipod, Inc
REI Topeak, Inc
REI Todson, Inc
REI Feedback Sports, LLC;
REI Advanced Elements, Inc.
REI Eagle Nest Outfitters, Inc
REI CAMP USA, Inc.
REI Shock Doctor Inc
REI Amphipod, Inc.
REI Bombardier Recreational Products, Inc.
REI Mountain Safety Research, Inc.
REI Cascade Designs, Inc.
REI Snow Peak USA, Inc.
REI Recreational Equipment, Inc.
REI Kelty, Inc.; American Recreation Products, LLC
REI Katadyn North America, Inc.
REI Recreational Water Products, Inc.
REI Bell Sports, Inc.
REI Specialized Bicycle
REI Shimano, Inc.;
REI Scott USA
REI Raleigh America
REI Quality Bicycle Products, Inc
REI Pacific Cycle, Inc
REI Kung Hsue She
REI Iron Horse Bicycle, LLC
REI Giant Bicycle, Inc
REI G. Joannou Cycle Co
REI Fuji American Advanced Sports, Inc
REI Felt Bicycles
REI Electra Bicycle Company, Inc
REI Dynacraft BSC, Inc
REI Cycleurope U.S.A., Inc
REI Cannondale Bicycle Corp.
REI Chia Cherne Industry Co. Ltd

Two Simple searches and 42 results and the big settlements have not started.

Do Something

If you are a manufacturer selling in the USA contact me NOW!

Every Manufacturer worldwide selling in California must meet these new Labeling Requirements. New California Proposition 65 warnings will become effective in one year.

California Proposition 65 is a nightmare for manufacturers and as usual, manufacturer bad dreams are felt by retailers.

Manufacturers Checklist for California Proposition 65

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





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

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,



Like Birds? Are you Familiary with The Cornell Lab of Ornithology?

Together, we achieved unprecedented growth and impact for birds.

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Dear Friend,

With your help, the Cornell Lab of Ornithology can pursue scientific excellence and engage people of all ages in learning about birds and protecting the planet.

As you’ll see below, technological innovation expands our impact, and it wouldn’t be possible without financial support from friends like you.

If you’re able, please help us sustain these vibrant programs by making a year-end donation to the Cornell Lab today!

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3 - CTA
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Help us keep it going in 2019, Friend!

 


We’re pleased that so many people can express their passion for birds and conservation through tools developed here at the Cornell Lab.

Just as you rely on us to lead the world in the study, appreciation, and conservation of birds, we rely on our community of citizen scientists and friends for the majority of our funding.

If you’re in a position to do so, please support our work with a special year-end gift today.

Thank you!

Jessica Cassidy Sig sm

Jessica Cassidy
Director of Membership and Annual Giving
Cornell Lab of Ornithology

 


Marker Recalls Kingpin Ski Bindings Due to Fall Hazard

Recall Date: October 9, 2018

Recall Number: 19-006

Name of Product: Kingpin 10 and Kingpin 13 alpine touring ski bindings

Hazard: The steel pins in the toe unit can break and reduce the release force of the binding, causing a fall hazard.

Remedy: Replace: Consumers should immediately stop using these bindings and return them to a Marker authorized retailer to obtain a free replacement toe unit. Consumers should bring their boots to be sure their bindings are adjusted correctly.

Consumer Contact: Marker USA at 800-453-3862 from 8:30 a.m. to 5 p.m. ET, email at kingpin.exchange@mdv-usa.com or online at https://www.marker.net/en-us/ and click on More Info in the recall section for more information.

Pictures available here: https://www.cpsc.gov/Recalls/2019/Marker-Recalls-Kingpin-Ski-Bindings-Due-to-Fall-Hazard

Recall Details

Units: About 4,100 (in addition, about 2,200 were sold in Canada)

Description: This recall involve s 2017-2018 Kingpin models 10 and 13 ski binding, with a black body and gold or copper accent coloring. The bindings are used with alpine touring ski boots with metal pintech inserts in the toe of each boot. The recalled toe units have heel units with serial numbers on the back in the following ranges: Kingpin 10 (337804 – 418632) and Kingpin 13 (337798 – 411728).

Model Number    Product Name    Accent Color

7733R1MA    KINGPIN 10; 75 – 100 mm    gold

7733R1MB    KINGPIN 10; 100 – 125 mm    gold

7933R1MA    KINGPIN 13; 75 – 100 mm    gold

7734R1MA    KINGPIN 10 Demo; 75 – 100 mm    gold

7934R1MB    KINGPIN 13 Demo; 100 – 125 mm    gold

7933R1MB    KINGPIN 13; 100 – 125 mm    gold

7733S1MA    KINGPIN 10; 75 – 100 mm    copper

7733S1MB    KINGPIN 10; 100 – 125 mm    copper

7933S1MA    KINGPIN 13; 75 – 100 mm    copper

7933S1MB    KINGPIN 13; 100 – 125 mm    copper

7734S1MA    KINGPIN 10 Demo; 75 – 100 mm    copper

7934S1MB    KINGPIN 13 Demo; 100 – 125 mm    copper

Incidents/Injuries: None reported

Sold At: Specialty ski and backcountry equipment stores nationwide and online at evo.com, backcountry.com, and theskimonster.com from March 2017 through April 2018 for between $500 and $650.

Manufacturer(s): Marker CZ, of Czech Republic

Importer(s): Marker USA, of Lebanon, N.H.

Manufactured
In: Czech Republic

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2017 Recreation Law (720) Edit 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, Recall, CPSC, Consumer Product Safety Council,



VICTORY! Supreme Court: Grand Canyon Uranium-Mining Ban Stands

Grand Canyon Trust
North Rim. Photo by Blake McCord

Dear James,

Ready for some good news? The Grand Canyon uranium ban stands!

After a protracted legal battle to defend the temporary ban on new uranium claims around the Grand Canyon from attacks by the mining industry, the highest court in the land has finally put the matter to rest. On Monday, the Supreme Court denied an industry challenge to a lower court’s decision upholding the ban. This puts an end to the legal battle to reopen about 1 million acres of public land around the Grand Canyon to new uranium mining. We’re deeply grateful for the government’s savvy and forceful efforts to defeat the mining industry’s lawsuit, from the trial court to the U.S. Supreme Court.

The culmination of years of hard work, this victory is shared — with the Havasupai Tribe who make their home at the bottom of the Grand Canyon, with hunting and angling groups, local governments, allies in Congress, and other partners. And we wouldn’t be here without the hundreds of thousands of concerned citizens like you who have raised their voices to protect the Grand Canyon. Thank you.

While this decision is a very big step in the right direction, our work isn’t over yet. The current administration could still decide to lift the ban. It has listed uranium as a “critical mineral” and the Department of Commerce is in the midst of developing a strategy to streamline access to critical mineral deposits, including uranium. The Department of Commerce is also investigating, at the request of two uranium companies, whether to recommend uranium import quotas. Both of these things have significant potential to add political pressure to lift the ban.

Who owns uranium claims around the Grand Canyon? There are more than 800 active mining claims around the Grand Canyon.

The mining industry promises to continue to advocate against the ban and some politicians openly call for the ban to be rescinded.

A U.S. Forest Service recommendation to review and revise the ban is still floating in the ether.

In a meeting last month, Deputy Secretary of the Interior David Bernhardt told the Grand Canyon Trust that the agency currently has “no reason” to reconsider the ban. We’re very happy to hear this, of course, but we remain alert to the ever-shifting circumstances that could move this administration to give in to political pressure and open the door to attempts to weaken or lift the ban.

Thank you for your support over the last months and years, and for sticking with us for the long haul, working together to Keep the Canyon Grand.

Sincerely,

Amber Reimondo
Energy Program Director

P.S. While this is a critical win, we’re celebrating with vigilance. Pressure from the mining industry continues. Now is the time to double down on protections for the Grand Canyon. Donate to the Trust today.

Photo courtesy of Blake McCord.

Grand Canyon Trust
2601 N. Fort Valley Rd

Flagstaff, AZ, 86001
Phone: (928) 774-7488
grandcanyontrust.org

@GrandCanynTrust @GrandCanyonNPS @NatlParkService #PaddlesportsLaw #GCRG #GrandCanyonRiverGuides #WhitewaterPark #WhitewaterLaw #RecLaw #RecreationLaw #OutdoorLaw #OutdoorRecreationLaw #OutdoorIndustry #ORLawTextbook

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Latest Issue of the American Journal of Play Available Online for Free

Latest Issue of the American Journal of Play
Explores Play in the Age of Information
Now Accessible Free Online at journalofplay.org.

How has computation changed play? In the latest issue of the American Journal of Play, Miguel Sicart, associate professor at the Center for Computer Game Research at IT University Copenhagen, explores the relationship between computation and play in the Age of Information.

Sicart establishes that play describes the creation of worlds with other players and often with the aid of props such as games or toys. Play is not valuable for its utility, but rather for its own purposefulness. Sicart claims that computers too are valuable beyond their immediate utility. Sicart focuses on the concept of reontologization—the process of transforming information. Computers have fostered “a transition from analogue to digital data” and have, therefore, created a new world. Play is also reontologizing because it is appropriative, autotelic, and expressive. Play translates a situation, context, space, and time into the scene or instrument of play, has its own negotiated purpose, and is produced or performed with a personal touch. Just as computers have created a world in which we consume information differently, play creates a world in which we can express ourselves in a new way. Such similarities explain the merging of computation and play in the rise of video games.

Sicart frames his ideas with the stories told in the classic novel Don Quixote by Miguel de Cervantes. Quixote creates and inhabits an imaginary world in permanent clash with the actual world. Sicart believes that to comprehend the complexity of play, we must understand Quixotean Play: play capable of engaging with and appropriating reality regardless of resistance. Recognizing play within this new context will allow us to understand play as a form of expression in the Age of Information.

Additional articles in Vol. 10, No. 3 of the American Journal of Play include:

“Problem Gaming: A Short Primer,” by Thomas E. Gorman, Douglas A. Gentile, and C. Shawn Green.

“The Physical Environment for Play Therapy with Chinese Children,” by Yih-Jiun Shen, Slyvia Z. Ramirez, Peter L. Kranz, Xinhua Tao, and Yuanhong Ji.

“Developing a Dramatic Pretend Play Game Intervention” by Thalia R. Goldstein.

All issues of the Journal are available free online at journalofplay.org. If you are interested in ordering a print subscription of the Journal, visit journalofplay.org/subscribe.

The American Journal of Play, an interdisciplinary scholarly journal devoted solely to the study of play, is published by The Strong in Rochester, New York.

#RecLaw #RecreationLaw #OutdoorLaw #ORLawTextbook #OutdoorRecreationLaw #OutdoorIndustry

 


Act Now: Save Grand Staircase-Escalante National Monument!

The Pew Charitable Trusts
Click to take action
Save Grand Staircase-Escalante National Monument
Take Action
SHARE 6b30a789-13c2-44c9-8330-f3fe96dc846c.png 472b7071-f99c-481d-8167-b4f0b8cfd691.png 247556bb-3451-4d14-9c92-2d62e883ea75.png 96170d3d-63c8-4c52-9a44-468ade901aa5.png
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Dear James,

On Dec. 4, 2017, President Donald Trump signed proclamations significantly reducing the size of Grand Staircase-Escalante and Bears Ears national monuments in southern Utah’s world-renowned panoramic canyon country. Not only would these monuments be diminished in size, they would also be fragmented into separate units.

Urge BLM to protect Grand Staircase-Escalante’s important scientific, historical, and cultural resources!

President Trump’s actions to shrink these two monuments are being challenged in federal court. Despite this active litigation, the Bureau of Land Management (BLM) has drafted land use plans for both the new smaller monuments and a separate land use plan for the public lands that were removed by the Trump proclamations from Grand Staircase-Escalante. These new plans will guide how lands within and outside of the new monument boundaries are managed until the courts make further determinations. In particular, the lands cut out of the new, smaller Grand Staircase-Escalante National Monument are being threatened in the draft plans by potential new coal mining, oil and gas drilling, and other development. While the courts will ultimately determine the fate of these monuments and public lands, it is important to participate in this process, both to register your disapproval of these actions and to voice your opinion on the values these lands contain and how they should be managed.

Send your comment to the BLM now!

The Grand Staircase-Escalante National Monument was designated in 1996 to preserve important scientific, historical, and cultural values, including world-class paleontological resources. Since then, more than two dozen new dinosaur species have been among the many scientific discoveries on lands within the original monument boundaries. The Grand Staircase-Escalante’s spectacular scenery and outstanding opportunities for outdoor recreation have drawn visitors from around the world, providing an economic boost to nearby rural communities.

Many extraordinary places lie outside of President Trump’s revised monument boundaries, including significant parts of the Kaiparowits Plateau, Paria Canyon, Circle Cliffs, and the Hole-in-the-Rock Road corridor. These lands are the most vulnerable to development and must be managed to ensure conservation of their unique geologic, cultural, and ecological values.

Your voice is critical to this effort. Please submit a public comment today!

For the wild,

John+Gilroy+80x80.png John Gilroy
Director, U.S. Public Lands
The Pew Charitable Trusts
TAKE ACTION NOW
#SaveOurEarth #EndangeredSpecies #StopClimateChange #ClimateChange #StopGlobalWarming #RecLaw #RecreationLaw #OutdoorLaw #ORLawTextbook #OutdoorRecreationLaw #OutdoorIndustry @savebearsears @doodahNOkach @UtahDineBikeyah #ProtectTheBearsEars #MonumentsForAll

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Colorado Environmental Film Festival Environmental Photography Exhibition

Does your photography move audiences to think about our environment? Show us your work and make a difference. Best of show in the Annual Environmental Photography Exhibition at the American Mountaineering Center in Golden, Colorado. Cash awards. Great venue and a great cause. Held in conjunction with the Colorado Environmental Film Festival. There will be a photography keynote speaker and reception. Details at https://www.ceff.net/photography-exhibition/

Under 19 and over 19 award categories.

Enter Your Photograph Now!

Important dates:

· Call for Entries deadline: Wednesday, October 31, 2018

· Notification Date: Friday, November 20, 2018

· Physical Delivery Date Deadline: Friday, February 15, 2019

· Opening Reception: February 22, 2019, 5:30-7:30pm with Keynote speaker (6:30-7:15pm)

· Exhibition Open at American Mountaineering Center: February 22-April 26, 2019

Please share with all photographers, outdoor organizations, nature centers, parks, natural resource agencies.. Thanks.

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Jonny Copp Award is now Bigger! Apply Now

$1000 Grant Apply NOW: The Jonny Copp Award 2018

This September, DJI and The Colorado Office of Film, Television & Media are partnering with the Adventure Film Festival to up the ante on their annual Jonny Copp award! Created to support adventurers, artists and environmentalists dedicated to living a life guided by passion, love and the desire to create positive change, 2018’s award includes a DJI Mavic Air Fly More Combo and a $1000 adventure filmmakers grant. The package will go to a young filmmaker who embodies this beautifully audacious spirit. Do you feel, deep in your soul, a relentless desire to create true positive change by sharing your love & knowledge? If so, we invite you to apply for the Jonny Copp award. “Be the change you wish to see in the world.”

Please apply at https://goo.gl/forms/puMtQv4rBcc1uNWm2 by October 3rd, 2018 to be considered.

Whether you apply or not, we hope that you’ll join us at the Adventure Film Festival for three days of adventure, creation, and exploration with award-winning filmmakers, visionary conservationists, and the world’s foremost names in adventure sports. Climb, film, write, draw, cook, bike, and experience new virtual realities. At the heart of the festival is a selection of 2018’s most critical and transformative independent films, featuring special guests and live performances. From ultramarathons to Inuit activism, folk rock to rock climbing, no two films have the same stripes—each is crafted to shift the way we view our world and ourselves. Get a sneak peek of the official film selection here. The festival launches October 5–7 in Boulder, Colorado before beginning its world tour.

Purchase passes here: https://www.bouldertheater.com/aff. For more information, visit adventurefilm.org #AFF2018

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