Estate of Taylor v. Outdoor Adventures of Davison, LLC (Mich. App. 2022)

Estate of Taylor v. Outdoor Adventures of Davison, LLC (Mich. App. 2022)

ESTATE OF ALLYN L. TAYLOR, by LOUIS B. TAYLOR, Personal Representative, Plaintiff-Appellee,
v.
OUTDOOR ADVENTURES OF DAVISON, LLC, Defendant-Appellant.

Nos. 355035, 355036

Court of Appeals of Michigan

January 13, 2022

UNPUBLISHED

Genesee Circuit Court LC No. 18-110936-NO.

Before: Mark T. Boonstra, P.J., and Mark J. Cavanagh and Michael J. Riordan, JJ.

Per Curiam.

In this negligence action arising from the drowning death of plaintiff’s decedent, Allyn Taylor, defendant Outdoor Adventures of Davison, LLC, appeals by leave granted the trial court’s orders denying its motions for summary disposition.[1] We hold that the trial court erred by ruling that the exclusive remedy provision of the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., did not apply to bar plaintiff’s negligence claim. At the time of his drowning death, Taylor, an employee of defendant, was on defendant’s grounds performing a task for defendant within a reasonable time after his working hours. Thus, he is presumed to have been in the course of his employment and he was not engaged in an activity the major purpose of which was social or recreational. MCL 418.301(3). Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor’s drowning death. Accordingly, we reverse and remand to the trial court for entry of summary disposition in favor of defendant.

I. BACKGROUND

This case arises from the tragic June 12, 2016 drowning death of plaintiff s decedent, 20-year-old Allyn Taylor, on Lake Linda in Davison, Michigan. Taylor was an employee of defendant, which owns a campground on Lake Linda. Defendant provided paddleboats to its customers for their use on Lake Linda. Taylor’s job responsibilities included checking out the boats and making sure all the boats were accounted for at the end of the day. When the boats were not in use, they were moored to a dock, but many of the ties were bad so boats would sometimes float away. One of Taylor’s job responsibilities was to retrieve any wayward paddleboats. Taylor would sometimes use another boat to pull a wayward boat back in, but if the wayward boat was not too far away from the dock, Taylor would sometimes swim out to it and pull it back in. Evidence was presented that the lake contained seaweed or lake weeds in the water near the dock, which could make swimming difficult.

On June 12, 2016, Taylor finished work at approximately 8:00 p.m. He thereafter spoke to his mother on the telephone and told her that he was going to go fishing while he waited for his parents to pick him up, and he also planned on bringing in a paddleboat that had drifted away from the dock. Taylor drowned that evening while swimming to reach a wayward paddleboat.

According to Deputy Jason Thomas of the Genesee County Dive Team, the water right near the dock was clear, but lake weeds were visible at the top of the water within 10 yards of the dock. Taylor’s body was recovered in 9 to 10 feet of water near the wall of lake weeds, approximately 90 feet from the dock. Autopsy photographs showed that Taylor had weeds wrapped around his left arm, in his mouth, and also in his nose. Plaintiffs expert in aquatic safety, Ralph L. Johnson, Ph.D, opined that Taylor experienced an “active drowning,” whereby he became entangled in the lake weeds, which caused him to panic below the water surface, struggle a great deal, and “suck[] water like crazy.” Although Taylor had also been diagnosed with syncope, a physical condition that causes fainting spells, neither Johnson nor the medical examiner, Dr. Patrick Cho, M.D., believed that this condition contributed to Taylor’s drowning.

Plaintiff filed this action against defendant for negligence. Plaintiff alleged that Taylor drowned as a result of becoming entangled in the lake weeds in Lake Linda, and that defendant was aware of the hazardous lake weeds and did nothing to alleviate the dangerous condition or to warn swimmers of the potential danger. As relevant to these appeals, defendant filed two motions for summary disposition under MCR 2.116(C)(4) and (C)(10), respectively, asserting that plaintiffs action was barred by the exclusive remedy provision of the WDCA, MCL 418.131(1), and that plaintiffs action was barred by the recreational land use act (RUA), MCL 324.73301(1), because Taylor was engaged in the recreational activity of swimming at the time of his drowning death. Defendant also argued that plaintiff could not establish a triable issue of fact regarding causation because plaintiffs theory that Taylor drowned after becoming entangled in the lake weeds was based solely on speculation, which is insufficient to establish a question of fact. The trial court disagreed with defendant on all of these issues, and thus denied defendant’s motions for summary disposition. As noted, this Court granted defendant’s two applications for leave to appeal and consolidated the cases.

II. EXCLUSIVE REMEDY

We first consider defendant’s argument that the trial court erred by holding that the exclusive remedy provision of the WDCA did not apply to bar plaintiff’s action. We agree that defendant was entitled to summary disposition on this ground.

“We review de novo a trial court’s decision on a motion for summary disposition.” O’Leary v O’Leary, 321 Mich.App. 647, 651; 909 N.W.2d 518 (2017). Summary disposition is appropriate under MCR 2.116(C)(4) if the trial court does not have jurisdiction over the subject matter. Petersen Fin LLC v Kentwood, 326 Mich.App. 433, 441; 928 N.W.2d 245 (2018). If the facts are not in dispute, the issue of whether a plaintiff’s injury arose out of and in the course of employment under MCL 418.301(1) is a question of law reviewed de novo. See Smith v Chrysler Group, LLC, 331 Mich.App. 492, 496; 954 N.W.2d 214 (2020).

It is undisputed that, at the time of Taylor’s drowning, he was attempting to secure a wayward paddleboat for defendant, his employer. MCL 418.301 provides, in pertinent part:

(1) An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. . . .

* * *

(3) An employee going to or from his or her work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act.

MCL 418.131(1) further provides that “[t]he right to the recovery of benefits as provided in [the WDCA] shall be the employee’s exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort.” Under MCL 418.131(3), however, an injury is not covered by the WDCA if it was incurred “in the pursuit of an activity the major purpose of which is social or recreational.”

In Eversman v Concrete Cutting & Breaking, 463 Mich. 86, 95; 614 N.W.2d 862 (2000), our Supreme Court explained that in applying “the social or recreational test” of MCL 418.301(3), a court “must consider the major purpose of the activity in which the plaintiff was engaged at the time of the injury.” See also Buitendorp v Swiss Valley, Inc, 485 Mich. 879; 772 N.W.2d 50 (2009) (holding that “the major purpose of the plaintiff’s activity at the time of injury determines whether the social or recreational bar [of MCL 418.301(3)] applies”). In considering this question, the court is required to examine “the totality of the circumstances.” Eversman, 463 Mich. at 96. In the present case, the evidence demonstrated that Taylor had finished his work and went fishing while waiting for his parents to pick him up from work, but then decided to swim out to a wayward paddleboat to return it to the dock, which was one of his employment responsibilities. Taylor’s time card reflected that he began work on June 12, 2016, at 12:58 p.m. and clocked out at 8:04 p.m. Two witnesses confirmed that Taylor was fishing with them off the dock, and they last saw Taylor at approximately 8:49 p.m., when they left the dock to go fish by a nearby bridge. The Richfield Township Police Department was dispatched to the scene at 9:45 p.m. Taylor spoke to his mother on the telephone and told her that he planned to retrieve a paddleboat that had floated away from the dock.

Because Taylor was on defendant’s grounds within a reasonable time after his working hours, he is presumed to have been in the course of his employment under MCL 418.301(3). Additionally, under “the social and recreational test” set forth in Eversman, at the time of his drowning, Taylor was attempting to bring into shore a paddleboat that had drifted away. Because the evidence is clear that the “major purpose” of this activity was to perform a task for his employer, it is not subject to the social or recreational bar of MCL 418.301(3). Eversman, 463 Mich. at 95. Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor’s drowning death. Accordingly, the trial court erred by holding that the exclusive remedy provision does not bar plaintiffs negligence claim against defendant.

The present case is distinguishable from Nock v M & G Convoy, Inc (On Remand), 204 Mich.App. 116; 514 N.W.2d 200 (1994), which is cited in Eversman. In Nock, the plaintiff truck driver, after making deliveries for his employer to several cities in Ohio, arrived in Detroit and, while at a Detroit bar, was attacked by another patron with a pool cue and lost an eye. Id. at 118. This Court agreed that under the version of MCL 418.301(3) in effect at that time, “the major purpose” of the plaintiffs patronage at the bar was both social and recreational, and therefore, his injuries were not compensable under the WDCA. Id. at 121. In contrast, Taylor was on defendant’s grounds a short time after his work hours with defendant had ended and, although he was engaged in the social activity of fishing in Lake Linda while waiting for his parents to pick him up, he stopped that activity and was engaged in an effort to secure a wayward paddleboat for defendant at the time he drowned. Under these circumstances, the major purpose of Taylor’s activity at the time of drowning was not social or recreational, and his injuries are presumed to have arisen out of and during the course of his employment. Therefore, the exclusive remedy provision of the WDCA is applicable.[2]

III. CONCLUSION

We reverse the trial court’s ruling that the exclusive remedy provision of the WDCA is not applicable. At the time of his drowning death, Taylor was on defendant’s grounds performing a task for defendant, his employer, within a reasonable time after his working hours. Thus, he is presumed to have been in the course of his employment and he was not engaged in an activity the major purpose of which was social or recreational. MCL 418.301(1), (3). Therefore, under MCL 418.131(1), the WDCA provides plaintiffs exclusive remedy against defendant for Taylor’s drowning death, and the trial court lacked jurisdiction over this case. We accordingly remand to the trial court for entry of summary disposition in favor of defendant. We do not retain jurisdiction

———

Notes:

[1] In Docket No. 355035, defendant appeals by leave granted the trial court’s September 16, 2020 order denying its motion for summary disposition under MCR 2.116(C)(4). Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket No. 355035). In Docket No. 355036, defendant appeals by leave granted the trial court’s June 29, 2020 order denying its motion for summary disposition under MCR 2.116(C)(10). Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket No. 355036). We consolidated the cases “to advance the efficient administration of the appellate process.” Estate of Allyn Taylor v Outdoor Adventures of Davison LLC, unpublished order of the Court of Appeals, entered January 20, 2021 (Docket Nos. 355035 & 335036).

[2] Having so concluded, we need not reach defendant’s alternate arguments for reversal.


Stupid Stunt or Real thing?

https://rec-law.us/3qLUh3q

State: California

I’m a pilot (former). The only time I wore a parachute was if I was in an acrobatic airplane. I did not wear an altimeter. It was not required when leaving a rock falling from the sky. Get out and pull the cord where the instructions I was given. I’ve landed twice without an engine. After surviving both landings I’ve never had any thought of leaving an airplane with two wings and a working tail.

In this case, a snowboarder was flying an older (1942?) Cessna, based on the photographs, with a parachute and altimeter. While over the mountains, he experienced engine trouble and bailed, all why videotaping himself.

An Instagram user spotted several issues with the video and posted them in the article. My favorite one is while bailing out of a “disabled”” aircraft’” the pilot remembered his selfie stick.

One of the first things you learn when you take pilot training is how to restart an engine that has quit. You also learn how to fly an engine that is not at full power to limp back to an airfield or at least someplace safer to land. Leaving an aircraft is the last thing you would do, and you are never taught that.

Besides having cameras on the plane, he landed close enough to the crash site to retrieve the videos.

Why Is This Interesting?

Is this real or a stunt? If it is a stunt, should the idiot do jail time?

Watch the video and let me know what you think?

#Stunt #StupidStunt @RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

CV

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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

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: Jim@Rec-Law.US

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

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

 

 


As hunting declines, money for other wildlife, parks & outdoor spaces will also

https://rec-law.us/3yZYx2U

State: Idaho

Research, preservation and recreation around wildlife that is not hunted are paid for by hunting. Hunting is declining and so is fishing, although not as much.

As those sports decline the money available for outdoor recreation based on viewing wildlife is going to disappear.

How are we going to fund non-game wildlife in the future?

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

CV

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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

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: Jim@Rec-Law.US

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

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


Why waste the time & money and the anguish to the family to have a trial knowing you won’t collect a dime? Because Lawyers of Egos

https://rec-law.us/3lR1Kwj

State: Texas

A group of lawyers sued a defunct bar and received a judgment for $301 billion dollars. The lawyers admitted they won’t get a dime.

Why would you do that? Why would you put the family through that hell?

I do not know. You could have accomplished everything by a motion.

The only thing I can guess is it makes better press?

Why Is This Interesting?

Because it is a total waste of time and worse, it puts the family through additional pain and suffering.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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

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: Jim@Rec-Law.US

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

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


Lawsuit filed to stop required overtime payments for outdoor Guide Companies

https://rec-law.us/3ozw8gj

State: Federal

Three Arkansas River Rafting Company owners have sued the federal government over new hourly wage laws. On any outdoor trip, rafting, mountaineering, even mountain biking a guide works long hours. Most guides work 12 and some days a lot more hours in a day. The new regulations would require those guides to be paid time & ½ for every hour after eight hours.

For an outfitter working under a federal permit or concession agreement, as a federal sub-contractor, they must now pay a guide for those extra hours. Since employee costs are the biggest expenses for most outfitters, that this going to price a lot of trips out of 90% of their customers’ ability to pay.

Guides also get fed while on trips, so there are some deductions for those costs in some cases, but not much. Guides are also usually paid a flat fee for the day. A guide paid $100 for an 8-hour day is now going to get a pay raise to the minimum wage at 1.5 times per hour. If a state’s minimum wage is $12 per hour, the guide for each hour after eight will be getting $18 an hour. And that will usually be another 4 or more hours. On a five-day trip that could be as much as another days pay at time and a half, if not more.

Probably, instead of helping guides, it will put a lot of them out of business. The cost of a trip will be so high; the number of trips will decrease, putting guides out of work.

With fewer trips, a lot of outfitters will also struggle. Multi day trip numbers have been declining over the years. Fewer people take the time to have a 3-5-day trip away from phones.

Mistake 1: For the three outfitters starting this lawsuit, they and their fellow permittees pushed so hard to have the Arkansas River become a National Monument, thinking it would increase the value of their permits; it has not, and has come back to haunt them, as many people predicted.

Why Is This Interesting?

Honestly, other than a few rivers such as the Grand Canyon that are only taking the upper class as guests anyway, this will destroy guided trips across the board. Outfitters do not make enough money on a trip to pay wages this high.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2021 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: Jim@Rec-Law.US

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

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


CURRICULUM VITAE

This post was published to Recreation Law at 7:35:34 PM 12/11/2021

CURRICULUM VITAE

 

JAMES H. MOSS

CURRICULUM VITAE

720 334 8529

jim@rec-law.us

http://Recreation-Law.com/

HIGHLIGHTS. 1

PROFESSIONAL HISTORY.. 2

EDUCATION.. 4

POST COLLEGE EDUCATION AND DEVELOPMENT.. 4

TRIAL EXPERIENCE.. 4

EXPERT WITNESS. 4

EDITORIAL BOARDS. 4

PUBLICATIONS – BOOKS. 4

PUBLICATIONS –NEWSLETTERS. 5

PUBLICATIONS. 5

VIDEOS AND FILMS. 8

PUBLIC SPEAKING.. 9

TEACHING EXPERIENCE.. 15

PODCASTS. 16

VOLUNTEER ACTIVITIES. 16

LICENSES & CERTIFICATIONS: 16

MEMBERSHIPS & PROFESSIONAL AFFILIATIONS: 17

HONORS: 17

HIGHLIGHTS

November 1985 – Present:

Private practice specializing in business law and litigation:  Represented clients in business law, contracts, business formation, real estate, landlord/tenant, and estate planning. Experienced trial attorney, from traffic to complex commercial litigation. Clients range from individuals to large corporations, located throughout Colorado and the United States. Worked with start-up companies and represented several high-risk recreational businesses, providing them with advice and research to prevent litigation. Worked for and have developed legal defense programs for several insurance companies.

Specialization in outdoor recreation law: Represented a wide variety of outdoor industry trade associations, organizations and companies including manufacturers and universities. Developed a national reputation for outdoor recreation litigation, contracts and defense programs. Trial assets are ability to communicate and relate to the jury and to cross-examine witness.

Author: Outdoor Recreation, Insurance, Risk Management, and Law, Sagamore Publishing, Inc. 2018

PROFESSIONAL HISTORY

November 1985 – Present:

Private practice specializing in business law and litigation:  Represented clients in business law, contracts, business formation, real estate, landlord/tenant, and estate planning. Experienced trial attorney, from traffic to complex commercial litigation. Clients range from individuals to large corporations, located throughout Colorado and the United States. Worked with start-up companies and represented several high-risk recreational businesses, providing them with advice and research to prevent litigation. Worked for and have developed legal defense programs for several insurance companies.

Specialization in outdoor recreation law: Represented a wide variety of outdoor industry trade associations, organizations and companies including manufacturers and universities. Developed a national reputation for outdoor recreation litigation, contracts and defense programs. Trial assets are ability to communicate and relate to the jury and to cross-examine witness.

August 2002 – July 2012 & August 2015 – 2017

Instructor Ski Area Operations, Risk Management. Colorado Mountain College, Leadville, CO. Author SAO Risk Management on line curriculum. Colorado Mountain College, Leadville, CO. Author Ski Area Operations, Risk Management on line course (http://www.coloradomtn.edu/programs/sao/field.shtml)

February 2008 – Present

Author – www.recreation-law.com:      Author of a weekly blog on the issues in the outdoor recreation community.

February 2001 – Present

Consultant Risk Management and Disaster Planning. Work with business to identify source of lawsuits and eliminate those sources. Consult on all forms of litigation, risk management, disaster planning.

May 2004 – 2011

Editor the Outdoor Recreation & Fitness Law Review. The Law Review is an online publication informing lawyers and business of changes in the law of outdoor recreation, fitness and outdoor education. (www.snewsnet.com/lawreview)

August 2006 – December 2006

Developer the Parks Recreation and Tourism Program, University of Utah, PRT Risk Management Insurance & Law

January 2005 – August 2006

Park’s College (Everest) Adjunct Instructor in the paralegal program, teaching Contracts, Real Property, Estates, Administrative and Probate law.

1989 – 2002: Small Business Risk Management Seminars:

Conducted two- and three-day risk management seminars for outdoor recreation businesses. Seminars provide the participant with hands-on training in how to detect risks and handle problems when they occur to prevent litigation.

February 2001 – August 2002

Risk Manager, Copper Mountain Resort Claims Management, Worker’s Compensation, and Training program. Reduced General Liability Claims costs from the three-year average Ninety (90%) percent. Received thank you notes from injured guests and family members of fatalities. Eliminated all lawsuits by injured guests. Converted Risk Management into a customer service department. Empowered Ski Patrol and Guest Service employees to solve problems to reduce claims. Reduced Worker’s Compensation costs by 67% and reduced claims by 20%. Wrote the weekly newsletter for Intrawest (Parent Corporation) for risk management personnel.

1999 – 2001: Publisher, Outdoor Recreation Newsletter:  Created and publish a monthly electronic newsletter exploring various aspects of risk management, liability, and legal issues affecting the outdoor recreation, travel and hospitality industry.

1984 — 1985: Attorney, Nationwide Financial Services, Mutual Fund Co. Developed and managed the training 3,000 agents in securities, tax law, and sales. Developed a multi-media training program explaining IRS and SEC regulations on the sale of securities. This three-day seminar was culminated a two-year series of training programs tying the entire program together. Developed marketing and advertising plans for agent promotions. Coordinated sales, marketing, and legal functions with other departments within the company. Also coordinated mutual fund programs with other companies within Nationwide.

1983-1984:  Attorney, Nationwide Life Insurance Co. Wrote pension plans and trained agents and stockbrokers in pension law. Provided in-house and on-site sales support for mutual funds, tax-sheltered annuities, life insurance products, and other financial instruments. Assisted in the development of “BEST of AMERICA,” the first tax sheltered annuity to wrap public mutual funds. Trained the brokerage community in the sales of tax-sheltered annuities of Nationwide Life Insurance Company.

1983-1985:  Rock climbing instructor and Money Management Instructor, Ohio State University Creative Arts Program. Taught 2,000 students rock climbing skills. Courses ranged from a 10-week experience, to a one-day program for youth groups. Developed a new teaching technique for rock climbing teaching 25 students to climb at one time.

The Money Management program was directed at professional students entering the work force for the first time. The class concentrated on investments, but started with checking accounts and ended with retirement.

1980- 1982: Law Clerk, Sebastian and Marsh, commercial litigation firm.

Mediator, Columbus City Attorney’s office, night prosecutor’s program. Mediated disputes between citizens of Columbus, OH. The program was instituted to relieve the courts and police of handling domestic and non-arrest incidents and to provide a forum of civilian disputes.

1978 – 1980: Nationwide Insurance – Self-employed multi-line insurance agent. Held SEC series 6, life/health and property/casualty insurance license

1977 — 1978: Boy Scouts of America District Executive. Responsible for year-round program, adult and youth leader training, fund raising, and recruitment of youth and adults. Developed youth programs in character building, leadership and outdoor recreation. Provided training to adults working with youth and outdoor skills to youth.

EDUCATION

August 1980 — December 1982: J.D., Capital University Law

1972 — 1977: B.S., Ohio State University

POST COLLEGE EDUCATION AND DEVELOPMENT

  • National Executive Institute (BSA)
  • National Camping School (BSA)
  • National Exploring Law Enforcement Conference (BSA)
  • Exploring Leader Training (BSA)
  • Scoutmaster Leader Training
  • Emergency Medical Technician
  • Colorado Continuing Legal Education Classes (Participant & Instructor)

 

TRIAL EXPERIENCE

Developed a national expertise as a consultant and trial attorney specializing in recreational risk issues, encompassing several areas with primary emphases on litigation prevention. Litigated and consulted on a broad scope of issues including risk management as it relates to recreation and outdoor education, risk management and program exposure evaluation, equipment and product liability and insurance issues.

Currently represent a large segment of the whitewater rafting insurance industry, scuba insurance industry, canoe livery and outdoor recreation industry. Consulted on or successfully litigated rafting, backpacking, kayaking, snowmobiling, ropes course and rock-climbing cases.

EXPERT WITNESS

Expert witness in outdoor recreation, commercial guiding, and recreation education cases

EDITORIAL BOARDS

Sports Facilities and the Law review, Holt Hackney Publications, https://sportsfacilitieslaw.com/

Sport and Recreation Law Association Presentation Review Board, http://www.srlawebsite.com/

PUBLICATIONS – BOOKS

Outdoor Recreation, Insurance, Risk Management, and Law, Sagamore Publishing, Inc., 2015, 427 pages, Sagamore Publishing, Inc., Urbana, IL

Risk Management and Law for Outdoor Recreation Professionals: Compiled November 1995. 400-page compendium of articles issues and reference material for individuals and businesses.

The Lawyer’s Advisor: Published September 1996. 160-page book written to provide consumers and lawyers with maxims for dealing with each other. Published by ICS Books, Merrillville, IN.

Outdoor Recreation Forms, Published September 1999, 200-page book published by the National Association of RV Parks and Campgrounds, to provide members with risk management forms for their businesses.

Legal Liability and Risk Management in Adventure Tourism: Ross Cloutier with Daniel Garvey, Will Leverette, James Moss & Gilles Valade. I was responsible for Chapter Seven Canadian Businesses Carrying on Operations in the United States.

Boy Scout Fieldbook: Contributing Author for the Risk Management chapter, Boy Scouts of America

Outdoor Programmers Resource Guide, Risk Management, Association of Outdoor Recreation & Education, 2004

Boating the Grand Canyon: A “How To” for Private Boaters, Amazon Kindle, 2019

Management of Parks and Recreation Agencies, 4th Edition, Chapter 2: Law and Jurisdiction (5th Edition currently in the Editing process) NRPA and Sagamore Press

Mountain Medicine & Technical Rescue 2nd Edition Chapter 13: Legal Aspects of Mountain Medicine, Carreg Limited

PUBLICATIONS –NEWSLETTERS

Liability Corner, Paddle Dealer Magazine. Quarterly magazine for the paddlesport’s industry, Paddlesport Publishing, Inc., Steamboat, Colorado.

Outdoor Recreation, Travel and Hospitality Law Newsletter, monthly electronic newsletter detailing changes, actions, lawsuits and results for the Outdoor Recreation, Travel and Hospitality Community.

PUBLICATIONS

In the Who’s-To-Blame Game, Be Trained in Self-Defense. Outside Business, October 1989, Taking Cover –

The Ins and Outs of Outdoor Education Cases, The Outdoor Network, fall 1990, Vol. 1 No. 7, Lawsuits: (Reprinted, January 1991 in Christian Wilderness Leaders Coalition; 1991 Newsletter National Association of Canoe Liveries and Outfitters.)

Medical Release Forms, The Outdoor Network, winter 1990, Vol. 1 No. 8,

Liability and Outdoor Equipment, The Outdoor Network, spring 1991, Vol. 1 No. 9,

Avoiding a Lawsuit, The Outdoor Network, spring 1991, Vol. 1 No. 9,

Using Industry Knowledge to Your best Advantage., The Outdoor Network, fall 1991, Vol. 3 No. 3,

Outdoor Programmer’s Resource Guide, Liability Section Outdoor Recreation Coalition of America, 1991,

Outdoor Recreation Liability in the Future and How to Prepare for that Threat Today. Proceedings: Sixth International Conference on Outdoor Recreation:

Paperwork: It Destroys Trees, Takes up Space and Maybe Necessary to Prevent Lawsuits. Proceedings: Sixth International Conference on Outdoor Recreation:

Avoiding a Lawsuit Pathways to Outdoor Communication, a publication of the New York State Outdoor Education Association, Inc., spring 1992, (Reprint of The Outdoor Network, spring 1991, Vol. 1 No. 9, Avoiding a Lawsuit)

Liabilities of Endorsers, Trade Associations, or Similar Parties Who Approve a Product in the Outdoor Recreation Industry. The Outdoor Network, spring 19921, Vol. 4 No. 1,

Whitewater Rafting Liability. The Outdoor Network, spring 1992, Vol. 4 No. 2,

Current Trends in the Use of Waivers and Releases. The Outdoor Network, fall 1992, Vol. 4 No. 4,

Are “out-of-bounds” laws out of bounds? Le Chronicle du Couloir, November 1992

Liability for Sexual Contact between Guides and Guests Proceedings: Sixth International Conference on Outdoor Recreation.

Current Trends in Outdoor Recreation Liability. Proceedings: Sixth International Conference on Outdoor Recreation

The Legal Perspective for the Outdoor Recreation Community Proceedings: Sixth International Conference on Outdoor Recreation: Certification and Accreditation.

Y’know what we do to poachers…boy? Le Chronicle du Couloir, January 1995

Product Liability of Outdoor Recreation Equipment Continuing Legal Education in Colorado, Sports Law, May 5, 1995.

Troubled Waters Outdoor Retailer, April 2000.

Outfitter Release Forms: How to Keep Them Meaningful Paddle Dealer, Liability Corner, spring 2000

A Few Words on “Standards” Paddle Dealer, Liability Corner, spring 2000

Pay Special Attention to Children Paddle Dealer, Liability Corner, summer 2000

Running a Retail Operation: Should you Rent Equipment Paddle Dealer Liability Corner, fall 2000

Special Attention Required When it comes to Children, Lawsuits, Releases and Assumption of Risk Scouter Magazine, Vol 2, Issue 1

The Basics of Negligence Paddle Dealer, Liability Corner, winter 2001

Renting Equipment Inside/Outside Magazine, spring 2003

It’s Not Money, CLE International, Recreation and Adventure Program law and Liability Conference,

A Good Contract Between Manufacturers and Independent Reps Makes for a Sound Business Marriage and a Smoother Divorce- If it comes to That. Gear Trends Magazine, summer 2004,

How to Reduce Injuries on the job; Put down the pencil, get off your chair, and get out of your office, Lorman Education Services, CLE Program, Worker’s Compensation:

Assumption of the Risk, Mountain Bulletin, a Publication of the American Mountain Guide Association, Vol. XVIII, No. 3, Summer 2004

Legal Watch: Prescriptions and the Law, Wilderness Medicine, the Journal of the Wilderness Medical Society, Fall 2007 (http://www.wms.org/pubs/WMSFall2007_MagazineFINAL_lowres.pdf)

Storm Over Everest, Frontline High-Altitude Ethics Roundtable, May, 2008, www.frontline.org/everest/etc/roundtable.html

California Supreme Court Limits Good Samaritan Protection, Wilderness Medicine, the Journal of the Wilderness Medical Society, Summer 2009

Lawsuits, Recreation Management, February, 2010

When we try to prevent accidents…are we creating them, Outward Bound International Journal, 2013, (Reprint https://recreation-law.com/2012/07/18/when-we-try-and-prevent-accidentsare-creating-them)

National Bicycle Dealers Association, Recalls Call for Retailer Action, http://rec-law.us/1FHAhA6

Protecting Your Bike Shop and Yourself When Hosting Events, Marsh & McLennan Agency, http://rec-law.us/1zAPdu5

Federal Court Dismisses Claims by BMX Rider for More Money from Sponsor, Sports Litigation Alert, Vol 12, Issue 17, http://www.sportslitigationalert.com/

Can You Buy a Season Pass at a Ski Area and Avoid Criminal Prosecution? Sports Litigation Alert, Vol 13, Issue 2, http://www.sportslitigationalert.com/

Judicial Ruling Creates Chaos in Oregon Where Volunteer Activities on Recreational Lands Have Come to a Halt, Sports Litigation Alert, March 17, 2017, Vol 14, Issue 5, http://www.sportslitigationalert.com/

Colorado Supreme Court Determines that a Piece of Playground Equipment on School Property Is Not Protected by the Colorado Governmental Immunity Act, Sports Litigation Alert Vol. 14, Iss. 13, http://www.sportslitigationalert.com/

California Proposition 65 Affects Retailers and Dealers, Too, National Sporting Goods Association, February 8, 2018 https://www.nsga.org/prop65

Court: Plaintiff Cannot Assume a Risk Which Is Not Inherent in the Activity or Which He Does Not Know, Sports Litigation Alert, Volume 15, Issue 13, July 20, 2018, http://www.sportslitigationalert.com/

Court: Plaintiff Cannot Assume a Risk Which Is Not Inherent in the Activity or Which He Does Not Know, Sport Facilities and the Law, July-August 2018 l Volume 3, Issue 1, https://sportsfacilitieslaw.com/

Kentucky Appellate Court Holds That Exclusions in an Insurance Policy That Render the Policy Worthless to the Insured Are Valid, Sport Facilities and the Law, Volume 15, Issue 18      September 28, 2018, https://sportsfacilitieslaw.com/

Court Allows a Release to Stop a Gross Negligence Claim, Sport Facilities and the Law, March-April 2019 Volume 3, Issue 5, https://sportsfacilitieslaw.com/

VIDEOS AND FILMS

Consulted on or written the scripts and provided legal advice for the following Videos and Films.

National Livery Safety System, “Accepting the Responsibility… A Guide to Safe Paddling.”  1993. American Canoe Association

National Livery Safety System, “You’re in Control…A Guide to Safe Paddling.” 1993. American Canoe Association

National Livery Safety System, “So Take the Time…A Guide to Risk Management Training for Outfitters.” 1993. American Canoe Association

Scuba Schools International, Basic Scuba Training, 1993.

Jack’s Plastic Welding, “Operation of the Paddle Cat.” 1993.

National Livery Safety System, “Whitewater Rafting.” 2000. American Canoe Association

National Livery Safety System, “Whitewater Kayaking.” 2000. American Canoe Association

OARS Whitewater Rafting Safety Orientation Videos, 2012, http://rec-law.us/NvHtqu

CONSULTATIONS FOR PUBLICATIONS: Quoted in or consulted by the following newspapers and magazines concerning risk management or outdoor recreation.

Anchorage Daily News, Anchorage, Alaska

Bicycle Retailer and Industry News

Bike Bix, UK

Boston Globe, Boston, Massachusetts

Camp Business

Club Industry, October 2011 Clubs, Manufactures Can Lessen Lawsuit Possibilities

Meetings & Conventions

Outdoor Hospitality Magazine

Outdoor Network, Boulder, Colorado

Outdoor Retailer, California

Outside Business, Chicago, Illinois

Outside Magazine, Santa Fe, NM

Rock & Ice, Letters to the Editor

Rocky Mountain News, Denver, Colorado

Ski Area Management, Boulder, Colorado

Velo News, Boulder, Colorado

Wall Street Journal, New York, New York

Forbes.com

Colorado Sun

The Rōbert Report

PUBLIC SPEAKING

Western River Guides Association, Annual Meeting December 1988: Reducing Your Exposure to Lawsuits, Reno, Nevada.

Colorado River Outfitters Association Annual Meeting, February 1988, 1989, 1990, 1992 and 1993: various recreational risk topics.

Western River Guides Association, Annual Meeting December 1988: Paperwork Necessary to Prevent Lawsuits.

Boy Scouts of America, National Search and Rescue Conference, July 1989, Reducing Your Risk of Being Sued, Colorado Springs, Colorado.

Outside Business, Taking Cover in the who’s to blame game, be trained for self-defense, October 1989.

Boy Scouts of America, National Law Enforcement Exploring Conference, July 1990, Reducing Your Risk of Being Sued, Boulder, Colorado.

Boy Scouts of America, National Exploring Conference 1990, Working with Parents to Avoid Litigation, Boulder, Colorado.

The Outdoor Network, Avoiding a Lawsuit, Spring 1991

Boy Scouts of America, North Central Region Exploring Law Enforcement Conference 1991: BSA Programs and Their Effect in Reducing Your Lawsuit Risk, Denver, Colorado.

Coalition of Exclusive Agents, First Annual Conference, July 1991, Reducing Your Errors and Omission’s Exposure, Las Vegas, Nevada.

International Conference on Outdoor Recreation: Outdoor Recreation Liability in the Future and How to Prepare for that Threat Today, University of Idaho, Moscow, Idaho.

International Conference on Outdoor Recreation: Paperwork: It Destroys Trees, Takes up Space and Maybe Necessary to Prevent Lawsuits, University of Idaho, Moscow, Idaho.

America Outdoors, Confluence 91, Reducing Your Liability, Orlando, Florida.

America Outdoors, Confluence 91, Understanding Your Insurance, Orlando, Florida.

Wilderness Education Association, Post Incident Emergency Legal Response, February 1992, University of Southern Colorado, Pueblo, Colorado.

Sixth International Conference on Outdoor Recreation, Liability for Sexual Contact between Guests and Guides, November 1992, University of Calgary, Calgary, Canada.

Sixth International Conference on Outdoor Recreation, Panel Discussion on: Liability for Certification, Accreditation and Endorsements in the Outdoor Recreation Industry, November 1992, Calgary, Canada.

Sixth International Conference on Outdoor Recreation, Panel Discussion of: Current trends in Outdoor Recreation Liability, November 1992, Calgary, Canada.

First Annual Challenge Course Symposium: Lawsuits: How to Handle them and How to Avoid Them, April, Boulder Colorado.

Exploring Search and Rescue Conference, Liability of Explorer Post Leaders. August 1993, Colorado Springs, Colorado.

Seventh International Conference on Outdoor Recreation: Emerging Trends in Outdoor Recreation, November 1993, Corvallis, Oregon

Seventh International Conference on Outdoor Recreation: Legalese, understanding the language, November 1993, Corvallis, Oregon

Confluence 1993, National Association of Canoe Liveries and Outfitters: National Livery System Video used as a Trial Defense Exhibit, December, Florida.

Second Annual Challenge Course Symposium: Setting up Your Course and Your Business to Avoid Litigation Threats, April, Boulder, Colorado

Fifth International Symposium on Human and Resource Management: Legal liability in Resource Management, June 1994, Fort Collins, Colorado

Building Partnerships, Building Trails: Risk Management for Trail Maintenance and Design. June 23, 1994, Park City, Utah.

Alpha Phi Omega Regional Conference: Alcohol Liability, a New Risk Plan for APO, October 29, 1994, Boulder, Colorado.

The Challenge Course Manager, Rick Management, March 28, 1995, Golden, Colorado

The Challenge Course Manager, Paperwork, Liability Defense, March 29, 1995, Golden, Colorado

Continuing Legal Education in Colorado, Sports Law, Product Liability of Outdoor Recreation Equipment, May 5, 1995.

Colorado Bar Association 1995 Convention, Sports Law, Outdoor Recreation in Colorado, September 8, 1995.

Seminar, Cornell University, Risk Management and Liability, Protecting you and your program from assault, October 24, 1995

Seminar, Cornell University, Paperwork, the Documents you need for Liability Protection, October 25, 1995.

International Conference on Outdoor Recreation, Risk Management in Outdoor Recreation Programs, October 24-25, 1995, Cornell University, New York.

International Conference on Outdoor Recreation, Risk Liability in University Outdoor Recreation Programs, October 24-25, 1995, Cornell University, New York.

International Conference on Outdoor Recreation, Update in Outdoor Recreation Law, October 24-25, 1995, Cornell University, New York.

National Association of Canoe Liveries and Outfitters, 1995 Convention, Risk Management in Outdoor Recreation Operations, November 26 – 27, 1995.

Wilderness Medicine Society, Liability Issues in Outdoor Recreation Law, February, 1996, Big Sky, Montana

Wilderness Education Association, Outdoor Recreation Liability Issues in College and University Outdoor Programs, February 23, 1996, Fall Creek Falls, Tennessee.

Wilderness Education Association, What’s New in University and College Outdoor Recreation, February 24, 1996, Fall Creek Falls, Tennessee

Outdoor Recreation Coalition of America Rendezvous and Conference, Liability Issues of College and University Programs, June 1, 1996, Colorado Springs, Colorado.

Seventh International Conference on Outdoor Recreation and Education, Land Management Issues for Colleges and Universities, November 7, 1996, Salt Lake City, Utah.

Seventh International Conference on Outdoor Recreation and Education, Update in Risk Management and the Law for Colleges and Universities, November 7, 1996, Salt Lake City, Utah.

Professional Paddlesports Association National Waterways Conference, Asset Protection and Estate Planning for the Canoe Livery Owner, December 5, 1996, Destin Florida.

Challenge Course Mangers Symposium, Legal and Risk Management Issues for the Challenge Course Manager, December 15, 1996, Boulder, Colorado.

Non-Profits in Travel Conference, Risk Management for Adventure Travel Industry, March 3, 1997, Arlington, Virginia

American Association of Health, Physical Education and Recreation Directors, Recreation Programs: Are You What You Think You Are, March 21, 1997, St. Louis, Missouri.

International Boating and Water Safety Summit, Signs, Signs Everywhere a Sign, April 22, 1997, San Diego, California

International Boating and Water Safety Summit, Is Your Insurance Adjuster Prospecting You for a Lawsuit?  April 22, 1997, San Diego, California

International Conference on Outdoor Recreation and Education, How to Protect Your Mexican Assets from US Attorneys, November 7, 1997, Merida, Mexico.

Professional Paddlesports Association Conference, Signs, Signs, Everywhere a Sign, December 4, 1997, Clearwater, Florida.

Professional Paddlesports Association Conference, Update in Outdoor Recreation Law, December 4, 1997, Clearwater, Florida.

First World Conference on the Cold and 7th European Cold Conference, How to Protect Your Assets from US Lawsuits, January 15, 1998, Kiruna, Sweden

American Mountain Guides Annual Conference, Your Client Is Not Breathing, Not Bleeding and Maybe Dead, What Do You Do Next. October 17, 1997, Golden, Colorado.

International Conference on Outdoor Recreation & Education, The Association of Outdoor Recreation and Education in the Year 2000. October 22, 1998, Fort Walton Beach, Florida.

Wilderness Medicine Society, Liability Issues for Physicians and Wilderness Medicine, August 1999, Whistler, Canada

International Conference on Outdoor Recreation and Education, Update in Outdoor Recreation Law, Dealing with the Federal Land Managers and Access, November, 1999, Jackson, Wyoming

National Association of RV Parks & Campgrounds, Asset Protection Planning, Training Your Employees to Prevent Lawsuits, Employee/Employer Law, November 1999, San Antonio TX

Challenge Course Manager, Running your Program without attracting lawsuits, December 1999, Golden, CO

Maine Campground Owners Association 2000 Spring meeting and Trade Show, Asset Protection Planning and Risk Management, April 14, 2000, Portland, Maine.

International Conference on Outdoor Recreation and Education, Stump the Lawyer, November 11, 2000, Miami University, Oxford Ohio.

International Conference on Outdoor Recreation and Education, Update in OR Law, November 5-6, 2001, University of Idaho, Pocatello, ID

Inside Outside Magazine, Room for Rentals: Liability Concerns shouldn’t keep Retailers from renting equipment, March 2004

CLE International, Recreation and Adventure Program law and Liability Conference, April 10 & 11, 2003, Vail Colorado

International Conference on Outdoor Recreation and Education, How to Teach Risk Management, November 7, 2003, Utah Valley State College, Orem Utah

International Conference on Outdoor Recreation and Education, Pre-Trip Risk management Planning, November 9, 2003, Utah Valley State College, Orem Utah

American Mountain Guides Association Annual Conference, Insurance, October 23, 2004, Moab Utah

International Conference on Outdoor Recreation and Education, Product Liability, October 29, 2004, Nashville, TN

International Conference on Outdoor Recreation and Education, Legal Terminology, October 29, 2004, Nashville, TN

International Conference on Outdoor Recreation and Education, Legal Update, October 29, 2004, Nashville, TN

Lorman Education Services, CLE Program, Worker’s Compensation: How to Reduce Injuries on the job, October 17, 2004, Grand Junction, CO

CLE International, Recreation and Adventure Law CLE: Update in Outdoor Recreation Law, April 28 & 29, 2005, Denver, Colorado,

Wilderness Medical Society, Annual Conference, Legal issues for Physicians dealing with Outdoor Recreation Programs, July 23, 2005, Snowmass, Colorado

International Conference on Outdoor Recreation and Education, Risk Management Update, October 2006, Buffalo, NY

International Technical Rescue Symposium, Standards, November 3, 2007, Golden Colorado. Standards, (Was voted “Most Thought Provoking Presentation” by the attendees.)

Lorman CLE Workers’ Compensation Update, November 27, 2007, Colorado Springs Colorado, “Keeping Your Worker’s Compensation Costs Low

Mountain Rescue Association Winter Meeting, January 12, 2008, Salt Lake City, UT, Standards

Sports and Recreation Law Association Annual Conference March 4, 2009, San Antonio, TX, Releases and Minors: An Update

Sports and Recreation Law Association Annual Conference March 4, 2009, San Antonio, TX, Releases and the Common Law

Rocky Mountain Lift Association Annual Conference, May 4, 2009, Grand Junction, CO, Risk Management: An Update

Rocky Mountain Lift Association Annual Conference, May 11, 2010, Grand Junction, CO, Customer Service from Lift Operations and Lift Maintenance

Rocky Mountain Lift Association Annual Conference, May 11, 2010, Grand Junction, CO, HR Paperwork

Association of Outdoor Recreation and Education, November 12, 2010, Keystone, CO, Major Legal Issues in Outdoor Recreation and Adventure Travel

Association of Outdoor Recreation and Education, November 12, 2010, Keystone, CO, First Aid Myths, Magic and Misconception from a Legal Standpoint

Association of Independent Camps Annual Conference, February 7, 2011, San Diego, CA, Kids Camps and Angry Parents who want to Sue.

Betty van der Smissen Memorial Lecture Risk Management and Legal Liability, Indiana University April 22, 2011, Bloomington, IN, Practical Procedures do not necessarily Prevent Punitive Proceedings or Sacred Cows in the Outdoor Recreation Industry

Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Creating a Workable, easy to write and use Risk Management Plan that won’t haunt you on the witness stand

Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Customer Service is Risk Management is Customer Service is Risk Management is Customer Service

Rocky Mountain Lift Association Annual Conference, May 11, 2011, Grand Junction, CO, Employee Discipline, Crap I have More Paperwork to Do.

Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Ask the Attorney I.

Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Ask the Attorney II.

Professional Paddlesports Association, November 8, 2011, Sandusky, Ohio, Wake Up and Smell the Liability.

Association of Independent Camps Annual Conference, February 20, 2012, Atlanta, GA, Update in the law

National Cave Association, September, 25, 2012, Deadwood, SD, Cave Risk Management and Liability

Outdoor Retailer, January 23, 2013, Salt Lake City, UT, How to Bring Scouts into Your Store: There’s Even an App for That!

Outdoor Retailer, January 23, 2013, Salt Lake City, UT, Outdoor Recreation Retail Store: Liability Issues

NHEIC Risk Management Conference, April 3, 2013, Nashville, TN Things You Don’t Know and Should.

National Bicycle Dealer Association, Interbike, September 17, 2013, Las Vegas, NV, Risk Management and Legal Issues for the NBDA

Sport and Recreation Law Association Conference, 2014, Orlando, FL, Update on Release Law

Loveland Ski Area, September 24, 2013, Georgetown, CO Update on Risk Management Issues and Customer Service for Ski Areas.

Sport and Recreation Law Association Conference 2016, New Orleans, LA, Standard of Care in Skier v. Skier Collisions.

Sport and Recreation Law Association Conference 2016, New Orleans, LA, Releases for Gross, Intentional or Reckless Acts.

Colorado Alliance of Environmental Educators, March 19, 2016, 21st Century issues drug forward from the past: Claims and Lawsuits, but 21st Century ways to deal with them

Outdoor Recreation Managers Training, IMCOM G9, San Antonio, TX, Risk Management Update

Sport and Recreation Law Association Conference 2017, Las Vegas, NV, The Evolution of the Public Policy Doctrine in Voiding Releases.

U.S. Army MWR Attorneys Association, June 13, 2017, Orlando, FL, Update on Recreation Legal Issues.

Sport and Recreation Law Association Conference 2018, San Antonio, TX, Electronic Releases

Sport and Recreation Law Association Conference 2018, San Antonio, TX. What Drives People: Extreme Sports.

Adaptive Outdoor Recreation Summit April 30 – May 2, 2018 (Skype) in Park City, UT, Update in the Legal issues facing Disabled Programs

Sport and Recreation Law Association Conference 2019, Philadelphia, PA, Managing the Risk of Events Through Insurance – Exclusions Do Apply!

Sport and Recreation Law Association Conference 2019, Philadelphia, PA, Legal Issues of Misrepresentation & Fraud in Outdoor Recreation.

Sport and Recreation Law Association Conference 2020, Louisville, are waivers being replaced by statutes

Sport and Recreation Law Association Conference 2020, Louisville, Recreation Case Law

Sport and Recreation Law Association Conference 2020, Online Conference, Covid-19 and Cruises

Sport and Recreation Law Association Conference 2020, Online Conference, Criminal Liability for Backcountry Skiing

Sport and Recreation Law Association Conference 2020, Online Conference, is a Fiduciary Duty Owed in Sport Recreation Settings

TEACHING EXPERIENCE

Prescott College, Prescott, Arizona, Risk Management for Recreation Programs. Case Studies of Outdoor Recreation Accidents and Responses, April 1992,

Community College of Aurora, Business Law, April — May 1992, Substitute Instructor

Oregon State University, Outdoor Recreation Liability, 1993

Cornell University, Outdoor Recreation Liability, 1994

University of Utah, Outdoor Recreation Liability, 1996

Colorado State University, Adjunct Professor, Human Resources, Ph.D. program 1993-97

Pikes Peak Community College, Adjunct Professor, Risk Management and Insurance Law, 1998, 1999

University of Idaho, Outdoor Recreation Liability, 2001

Continuing Legal Education in Colorado, Sports Law, Product Liability of Outdoor Recreation Equipment, May 5, 1995.

Colorado Mountain College, Leadville, CO Risk Management, Ski Area Operations. Live Class (Fall 2002 to 2017) and Online Class (2004 to 2017)

University of Utah, Salt Lake City, UT, Outdoor Recreation, Risk Management, Insurance and Law, Spring 2006 (online)

University of Arkansas, Update in Recreation Law, February 9, 2018

University of Arkansas, Update in Recreation Law, Sport and Recreation Risk Management, August 2, 2018

PODCASTS

The Spokesmen Cycling Roundtable Podcast, http://www.the-spokesmen.com/wordpress/

VOLUNTEER ACTIVITIES

Board of Directors, Denver Area Council 2014 – Present, Boy Scouts of America

Activities Committee Chairman, April 2021 – Present, Denver Area Council, Scouting USA

District Chairman, Timberline District 2014 – 2019, Denver Area Council, Boy Scouts America

Chairman, Youth Protection Program, 2018 – Present, Denver Area Council, Boy Scouts of America

Risk Management & Insurance Committee, 2018 – Present, Denver Area Council, Boy Scouts of America

Cycling Committee Chairman, 2020 – Present, Denver Area Council, Boy Scouts of America

Board of Directors, Colorado Alliance of Environmental Education 2008 – 2014, http://www.caee.org/

Board of Directors and Secretary, Galapagos Preservation Society 2006 – Present, http://gpsociety.org/

Board of Directors, Trade Association of Paddlesports 2004 – 2010, https://www.facebook.com/Paddlesports

Member and/or Chairman, American Alpine Club Library Committee, 2004 – 2019 http://americanalpineclub.org/p/library

Founder and Board of Directors, National Outdoor Book Awards 1997 – Present, http://www.noba-web.org/

LICENSES & CERTIFICATIONS:

Licensed to practice law in:

Ohio (inactive)

Colorado

Federal District Court, Colorado

Tenth Circuit Court of Appeals

Certified alpine ski binding technician

 

MEMBERSHIPS & PROFESSIONAL AFFILIATIONS:

Academy of Legal Studies in Business

Adventure Sports Lawyer’s Group

American Alpine Club

American Avalanche Association

American Society of Testing & Materials (http://www.astm.org/)

Bicycle Colorado

Colorado Alliance of Environmental Education

Colorado Bar Association

Denver Area Council, Boy Scouts of America

Galapagos Conservation Action

International Climbing and Mountaineering Federation – (UIAA) (Union Internationale des Association d’Alpinisme) Safety Committee

First Judicial District Bar Association

National Ski Area Association (Past)

National Ski Patrol (Past)

Society of Park and Recreation Educators

Sports & Recreation Law Association

Trade Association of Paddlesports (Past)

HONORS:

Sport and Recreation Law Association President’s Award

East Muskingum School District Distinguished Alumni Hall of Fame

Boy Scouts of America, Denver Area Council, Silver Beaver Award

Boy Scouts of America, Denver Area Council, Exploring Division, District Award of Merit

Boy Scouts of America, Denver Area Council, Timberline District, District Award of Merit

Colorado Mountain College Advisory Board, Ski Area Operations

Copper Mountain Peak Heroic Moment Award February 2002

Denver Area Council, BSA Certificates of Appreciation

Globe Pequot Press, Falcon Publishing Editorial Review Board

ICS Books, Editorial Review Board

Moab Confluence Writing Festival, Judge

National Outdoor Book Awards Co-Founder and Judge, (http://www.noba-web.org/)

National Summit on Outdoor Recreation, Ambassador, 1994

Pike’s Peak Community College Advisory Board, Recreation and Guide Program

Speaker, Betty van der Smissen Risk Management Lecture, University of Indiana 2011

Eagle Scout, Boy Scouts of America

Vigil Honor Member, Lifetime, Order of the Arrow, Boy Scouts of America

 


Dr. Charged with 3 Felonies for faking need for rescue on Denali

https://rec-law.us/3kvMiVD

State: Alaska

Dr. on Denali claimed he needed rescued due to lack of equipment after his partner was rescued. When that did not work he claimed he was hypothermic. However, people climbing with him stated he has no injuries or problems descending when he was told rescue was impossible.

When questioned the next day the Dr. was found to be evasive and obstructive and believed to have been deleting messages from his satellite device (?).

Lance is facing a charge of interference with a government employee and violating lawful order for refusing to hand over the device at the ranger’s request and for deleting messages, the charges state. Lance is facing a third charge of false reporting for claiming another climber was experiencing shock and hypothermia in order to prompt rescue.

Why Is This Interesting?

I’ve never heard of anyone being charged like this. I have heard and seen people fake injuries to get rescued before.

#ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #BoycottNH #NoChargeforRescue #NoChargeforSAR #RecLaw #RecreationLaw @RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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




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: Jim@Rec-Law.US

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

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


Montana Recover & receives $2.2 Billion to its economy due to the outdoor industry

https://https://buff.ly/30gWZ7ubuff.ly/30gWZ7u

State: Montana

$2.2 Billion was added to the Montana economy in 2020 due to outdoor recreation 5.4% of the state’s employment is in the outdoor recreation industry which translates to 26,000 jobs. Montana tied for second with Alaska and after Hawaii, for the highest percentage of jobs attributed to the outdoor industry.

Why Is This Interesting?

That is a huge chunk of money for a state that historically relied upon extraction for its economy.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

What do you think? Leave a comment below.

Copyright 2020 Recreation Law (720) 334 8529

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

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: Jim@Rec-Law.US

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

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


Washington DC consumer law set to suck money from retailers AND manufacturers who sell to Washington DC Residents

My advice. STOP ALL SALES TO WASHINGTON DC RESIDENTS OR WASHINGTON DC ADDRESSES!

The letter below was received from a Georgia cycling store. The letter demands thousands of dollars for violating Washington DC Chapter 39. Consumer Protection Procedures. Allegedly the prices on the website prior to the sale price were higher than the Manufacturers Suggested Retail Price (MSRP). In Most states you can sell something for any price unless you have an agreement with the manufacturer to sell within a price range. (Sherman Anti-Trust Act and the Manufacturers Suggested Retail Price regulations.)

The letter is posted here with permission from Joe Elam of Habersham Bicycles. THANKS JOE!






The law firm is real, but the website for the firm is not finished. https://www.dcclg.com/

The organization the law firm is representing is also a one-person operation and is listed by different firms that monitor non-profits as questionable. http://www.i4tm.org/#page-top.

https://www.causeiq.com/organizations/institute-for-truth-in-marketing,473475721/

https://nonprofitlight.com/dc/washington/institute-for-truth-in-marketing-inc.

The products were purchased in three different sales and shipped to:

Jared Zecco

1629 K St.

Suite 300

Washington DC 20006

The letter is demanding $1500 for each violation of the Washington DC law, however the only penalty I can find in the statute says not exceeding $1000 per violation.

§ 28–3905. Complaint procedures.

(3)(A) Any person found to have executed a trade practice in violation of a law of the District within the jurisdiction of the Department may be liable for a civil penalty not exceeding $1,000 for each failure to adhere to a provision of an order described in subsection (f), (g), or (j) of this section, or a consent decree described in subsection (h) of this section.

However, if the seller is taken to court, then $1500 can be recovered.

(A)(i) Treble damages, or $1,500 per violation, whichever is greater, payable to the consumer;

Here is the problem. You will be sued in a DC court.

Do Something

Don’t Sell to DC online until you understand this law.

MORE COMING

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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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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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,

 


Lost and Confused

Seems like I’m just repeating myself

I haven’t been posting lately, couple of reasons. Working on chapters for two different books Management of Park and Recreation Agencies and Mountain Medicine and Technical Rescue.

But that is not the main reason, not burn out, just writing the same thing over and over again. Almost 3000 articles that say Use a Release or Make Sure your Guest Knows about Assumption of the Risk.

Website managers keep telling me to go back and update what I’ve written, which I should in a few cases, but that seems like a rip off honestly. (Even though no one is paying me to do this.)

I also get zero feedback from anyone 98% of the time. So, I don’t know if you like or dislike what I’m writing.

Right now, the so purpose of this site is to keep me #1 in Google Searches. I can continue to do that by just posting random key words every once in a while.

Recreation Law Assumption of the Risk Release
Waiver Negligence Outdoor Recreation
Outdoor Recreation Law Gross Negligence Negligence Per Se

You get the picture.

What do you want me to write about?

There are tons of lawsuits. Probably 3-5 more lawsuits in the outdoor recreation industry then when I started writing ten years ago. The plaintiff’s bar has found the industry. And found there is money in the industry, which is why you can expect your insurance rates to start climbing, if they have not already. More importantly you are going to see more activities that are not going to be covered by a policy.

Do Something

So, look if you want something specific here let me know! Jim@rec-law.us

If you want something new here, let me know. Jim@rec-law.us

If you want the same thing, let me know. Jim@rec-law.us

Or leave a comment

    Jim

If not, you’ll get key words in the future.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

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:
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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,



Overturned: Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.

Association resource guide is used against the defendants to prove the plaintiff’s case.

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

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois

Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation

Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium

Defendant Defenses: failure to state a claim and release

Holding: For the defendant

Year: 2018

Summary

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Facts

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.

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

The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence

The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

The court first looked at the definition of recklessness and gross negligence.

The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The key point is the failure must be an intentional failure. The plaintiff must establish that the defendant consciously acted or failed to act. “Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.

To prove gross negligence Pennsylvania laws requires a deviation from the standard of care.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary standard of care.”

Normally the trier of fact, the jury must make this decision. However, Pennsylvania courts are allowed to decide this issue if the facts are “entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”

Normally, to prove the defendant’s duty, expert testimony is required to establish the standard of care that the defendant failed to meet and how the expert deviated from that standard of care.

The plaintiff hired to experts that provided opinions as to the actions of the defendant. The first expert opined that the actions of the defendant were beyond the standard of care, but never provided an opinion about what the standard of care was.

DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

The second expert did not set forth any standards of care.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

The simple negligence claims were barred by a release. The plaintiff argued on appeal that the release was void because it did not specifically name in the release one of the defendants. However, the court found that the language in the release, “and their owners” was sufficient to cover the defendant when not specifically named in the release.

There was a dissent in this case. The dissent argued the plaintiff should win because the warning on the mats used to decelerate the tubes stated that vinyl tubes were not to be decelerated by mats or other devices. The dissent also argued the opinions of the experts did provide enough information for a decision about the recklessness and gross negligence of the defendants.

In my view, Appellants have put forth enough evidence at this stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

So Now What?

The plaintiff was rendered a quadriplegic by the accident so a lot of money was at stake. The plaintiff did not hire experts correctly or did not explain what was needed from the experts. This first rule of pleading is proving your case legally on the paperwork and then prove it in the record. The plaintiff failed to do that.

The biggest hurdle was the association resource guide. The National Ski Area Association created a resource guide for tubing hills. The dissenting judge called it the standard of care. The resource guide did not contain any information on using devices to slow tubes. The resource guide said you should have a sufficient run out.

The court did not see the issue as using a mat to slow participants as a violation of the standard to use a run out.

That was the close one in this case.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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To Purchase Go Here:

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Email: Jim@Rec-Law.US

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

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


Hand Wash Stations

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

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


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

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

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

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Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

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



Starting Your Outdoor Recreation Business: Entities and Taxation

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.

———


Overturned by the PA Supreme Court: 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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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

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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Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: jim@rec-law.us

Twitter: RecreationLaw

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www.recreation-law.com

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

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



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

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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.

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,