AAC Hiring & Join Us for Adventure Film Fest
Posted: November 6, 2011 Filed under: Uncategorized Leave a comment
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Business Opportunity Announced for Bicycle and Food Services on the South Rim of Grand Canyon National Park
Posted: November 3, 2011 Filed under: Uncategorized Leave a comment ![clip_image001[4]](http://lh5.ggpht.com/-4tnGBtEr_wY/TrDC0f2DERI/AAAAAAAAAvg/BSJFifjcJlM/s1600-h/clip_image00142.gif "clip_image001[4]"){kind=small} |
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![clip_image003[4]](http://lh4.ggpht.com/-8d5ap_ds5YE/TrDC1aCygxI/AAAAAAAAAvw/VnMsW_YkmwA/s1600-h/clip_image00342.jpg "clip_image003[4]") |
Grand Canyon News Release
![clip_image004[4]](http://lh5.ggpht.com/-tOWbQ3CZhj4/TrDC2zQ5atI/AAAAAAAAAwA/4ZdenzKO2X0/s1600-h/clip_image00442.gif "clip_image004[4]"){kind=small}
Business Opportunity Announced for Bicycle and Food Services on the South Rim of Grand Canyon National Park
What do you think? Leave a comment.
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October E-News from The AAC
Posted: October 30, 2011 Filed under: Uncategorized Leave a comment
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FW: Winter Sports Technology International – New issue online NOW!
Posted: October 29, 2011 Filed under: Uncategorized Leave a comment|
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Application Deadline Changes for Lyman Spitzer Cutting Edge Award
Posted: October 28, 2011 Filed under: Uncategorized Leave a commentDeadline is now December 1, 2011
Today, The American Alpine Club announces that the application deadline for the prestigious Lyman Spitzer Cutting Edge Award has been moved up one month. The new deadline is December 1, 2011.
The Lyman Spitzer program promotes state-of-the-art, cutting-edge climbing through financial support of small, lightweight climbing teams attempting bold first ascents or difficult repeats of the most challenging routes in the world’s great mountain ranges. $12,000 is awarded annually to three to six endeavors that best meet the criteria for “cutting-edge” climbing.
Previous winners of the AAC Lyman Spitzer Cutting Edge Award have made some of the world’s finest first ascents, including Jobo Rinzang (6,907m) in Nepal and Peak 5,592 (a.k.a. Seerdengpu, a.k.a. The Barbarian) in southwestern China’s Shuangiqiaogou Valley; the award has also supported attempts on Latok I, K7, and Shingu Charpa, among many others.
Application documents and further details: americanalpineclub.org/grants.
Through the generous contribution of Lyman Spitzer, Jr., a longtime American Alpine Club Member and lover of the mountains, the AAC initiated the Lyman Spitzer Climbing Grants Program in 2000. Spitzer was an accomplished physicist, best known for his research on star formation, plasma physics, and his leadership and vision in articulating the notion of the space-based telescope. He is the namesake of NASA’s Spitzer Space Telescope. His mountaineering accomplishments include first ascents on Baffin Island and in the Canadian Rockies, as well as numerous repeats of difficult peaks like Mt. Waddington throughout the U.S. and Canada.
Additional Grant Information
Upcoming is the application deadline for the McNeill-Nott Award. Applicants need apply by January 1. The Award, with the help of Mountain Hardware, honors the memory of Karen McNeill and Sue Nott. It awards financial assistance to amateur climbers attempting new routes or unclimbed peaks with small and lightweight teams. Previous winners have, among other things, explored and climbed new routes in Greenland’s Fox Cirque, the Suches Valley of the remote Cordillera Apolobamba, on the border of Bolivia and Peru, and Southeast Alaska’s Wood River Range.
In addition to the Lyman Spitzer Cutting Edge Award and the McNeill-Nott Award, The American Alpine Club offers grants for everyday climbers attempting big-walls, new or notable free climbs,and alpine objectives. Of significant prominence is the Club’s “Gateway Grant”; this Mountain Fellowship Award offers funding to climbers under the age of 26 to aid them in making the transition to the Greater Ranges. For more details and specific application information for this and other AAC grants visit americanalpineclub.org/grants.
What do you think? Leave a comment.
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Sanity reins in Utah, sort of …… State no longer responsible for bears attacking people who leave kids unattended with food.
Posted: October 27, 2011 Filed under: Uncategorized Leave a commentHowever Federal suit against US government trial court awards $1.9 million
Remember The State of Utah is now responsible for what bears do and Lawsuit update: Utah Bear Attack. Those articles talked about a lawsuit where a bear had killed a young boy at a USFS campground in Utah. The boy was alone in a tent with a can of soda according to some reports.
The family sued the state and the USFS for their loss. In a federal trial a federal judge awarded $1.9 million to the family in May of 2011. The suit against the state in state court was dismissed by the judge.
The basis for the judge’s ruling was the state did not have a relationship with the family that would give rise to liability and the state is immune from suits of this type. See Judge tosses out bear attack lawsuit against state.
Probably the Federal government (hopefully) is appealing the $1.9 million judgment and the family is appealing the dismissal. This will not end for a while.
To be honest, I’m even confused on how you have the same lawsuit with the same facts going on in two different courts at the same time.
See Utah judge dismisses bear-attack wrongful death lawsuit
What do you think? Leave a comment.
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National Park Service is changing centuries of direction with new plan for the Black Canyon
Posted: October 26, 2011 Filed under: Uncategorized Leave a commentGuided Climbing to be prohibited in sections of the canyon.
Guided rock and mountain climbing started in the 1800’s in Europe. Canada had guided climbing in the late 1800’s. Guiding in the US soon followed. Hiring a guide to climb a mountain or rock allows someone with little experience about an area or the climb to experience it without the other issues facing first timers. A guide can also answer questions, tell you about the area and assist you in many areas and issues with your state besides just the climb. Guided climbing has a long and valued tradition in North America and Europe.
Guided climbing on federal land (NPS, BLM, USFS) provides income to the government and provides employment to guides.
However the National Park Service (NPS) is trying to change that in Black Canyon of the Gunnison National Park. A new Wilderness and Backcountry Management Plan has been proposed that prohibits guided climbing in some sections of the park. The basis for the prohibition of guided climbing in the Inner Canyon Primitive Wilderness Subzone area of the park is to:
[I]mprove opportunities for challenge, self-reliance and adventure that are integral to the wilderness experience….
Wow, a guide removes the opportunity for challenge, self-reliance and adventure?
Bull
I bet within a week I can find 1000 clients of guides who will swear that they were challenged, they were self-reliant and the guide did nothing to change the adventure on their trip.
There are other restrictions that I can live with. There will be a limit of 15 bolts per year, three new rappel stations, no bolt ladders, no gear caches, no new trails and not ropes hanging for more than fourteen days. You may not agree with the other issues, comment as you feel appropriate.
Do Something and Do it Today. The comment period closes on ‘ 10/27/2011 at 11:59 PM.’
Read the plan. It can be found here.
Then go comment. You can comment here.
Tell the Park Service their reasons for prohibiting commercial guiding in the park is not based on any rational argument or any study. Tell the NPS that the plan is crap.
Contact your Senators and Representatives and let them know that you oppose the plan and want them to oppose the new plan also. Tell them the new plan will affect jobs in the United States and this is not the time for the federal government to be reducing jobs. On top of that, commercial guides provide a percentage of their income from guiding to the NPS. The NPS will be losing income by prohibiting guiding.
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Winter Market 2012 Attendee Registration is Now Open
Posted: October 25, 2011 Filed under: Uncategorized Leave a comment
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No Child Left Inside Act needs your support
Posted: October 20, 2011 Filed under: Uncategorized Leave a commentAs the Senate HELP Committee prepares to mark up ESEA legislation beginning Wednesday, they need to hear from you TODAY.
Encourage the Senate Help Committee to include NCLI as they reauthorize ESEA.
This week, the Senate Committee on Health, Education, Labor and Pensions (HELP) will mark up a draft of the Elementary and Secondary Education Act (ESEA).
Please call your Senator if s/he is on the HELP Committee TODAY (or as late as Wednesday) to urge their support for the inclusion of the NCLI Act (S.1372) in the reauthorization of ESEA. A phone call will take you just 3 minutes, and we have provided a script below to make it easy!
This is a very big week for all of us, and together we can make a difference! Thank you for taking action today.
Phone Call Instructions for Senators on the HELP Committee
Find your Senator’s DC Office phone number on the attached list of phone numbers for HELP Committee members.
· Always leave a voice message if you don’t get the staffer, be sure to hit the key points and leave the contact # for Sen Reed’s Office
· If you have a question that you cannot answer, write it down, reach out to us with the question, and let them know you’ll get back to them – this happens all the time, you don’t have to know it all!
· If your Senator is already a co-sponsor (noted on the attached contact list), thank staff for their support, but continue with the script and remind them that we’d like their support at mark up.
Call Script – you can literally just read from this, or adjust as you see fit:
My name is [NAME] calling from [ORGANIZATION NAME IF APPLICABLE] in [LOCATION] to speak with the staffer who handles education issues for the Senator.
[Once transferred, reintroduce yourself to the education staffer (or on voicemail if necessary), mention that you are a constituent of the Senator and if applicable the name of your organization]
[SAY THE FOLLOWING] I’m calling to ask that member SENATOR NAME support including environmental education during the mark up of the Elementary and Secondary Education Act scheduled for October 18th. Specifically, we’d like to see the main provisions of the No Child Left Inside Act – bill # S. 1372 – be imbedded in ESEA. The main provisions include incentive funding tied to State Environmental Literacy Plans. [THIS IS THE KEY MESSAGE, SAY THIS FIRST]
[YOU THEN MAY WISH TO SHARE WHY EE IS SO IMPORTANT] The No Child Left Inside Act will provide critical tools for a 21st Century, innovative workforce by providing students with the skills to understand complex environmental issues so they may make informed decisions in their own lives and find solutions for real world challenges facing us as a nation.
[LET THEM KNOW WHO TO CONTACT FOR MORE INFORMATION] Feel free to contact Moira Lenehan Razzuri in Senator Jack Reed’s office for more information. Her phone number is 202-224-4642. [IF LEAVING A MESSAGE] I can be reached at [PHONE #].
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Local Author Book Signing
Posted: October 17, 2011 Filed under: Uncategorized 1 CommentYou’re invited to join climber and AAC member Jim Davidson and Denver Post staff writer Kevin Vaughan as they discuss and sign their new climbing survival book, The Ledge: An Adventure Story of Friendship and Survival on Mount Rainier. This compelling book details an accident on Mount Rainier that took the life of Mike Price and changed the life of Jim Davidson forever.
Price and Davidson chose to ascend Liberty Ridge, the mountain’s most difficult and dangerous path. After four days of climbing over hazardous terrain, they reached the summit. But on the way down – 30 minutes from solid ground – a snowbridge collapsed beneath Davidson’s feet. Tied together, they dropped deep into a hidden glacial crevasse, leaving Davidson to do the impossible: scale an 80-foot wall of steep ice in the wake of losing his best friend.
Presentation is next Wednesday, October 19th, 6:00 pm at the Denver Press Club (1330 Glenarm St., Denver). Jim and Kevin will discuss the adventure memoir, read selected passages, answer questions and sign books. Admission is FREE. Available in hardback, e-book and audiobook. For more information, visit:
http://www.denverpressclub.org/events/icalrepeat.detail/2011/10/19/1189/41/ZWYwMzUxNDdhMWRkZmZlZGQ2ZGIwNGM5ZDhjMTM3MWQ=
www.facebook.com/TheLedgeBook
www.speakingofadventure.com
www.kevinvaughan.net
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SAMPLE SALE, SAMPLE SALE, SAMPLE SALE SAMPLE SALE
Posted: October 13, 2011 Filed under: Uncategorized Leave a commentMassive sample sale on this Saturday October 15, 2011.
Salomon running
Salomon outdoor apparel
Salomon boots
Osprey packs
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Culture of Fear
Posted: October 12, 2011 Filed under: Uncategorized Leave a commentVideo about helmet use in cyclists raises more than helmet issues.
In a TED Video Mikael Colville-Andersen – Why We Shouldn’t Bike with a Helmet the speaker raises some very thoughtful, actually mind blowing ideas in discussing why we should not worry about wearing bicycle helmets.
If you are not familiar with TED which stands for Technology, Entertainment, Design, it is a conference where great minds give short presentations on their subject; past, present or future. To quote from the TED website:
TED is a nonprofit devoted to Ideas Worth Spreading. It started out (in 1984) as a conference bringing together people from three worlds: Technology, Entertainment, Design. Since then its scope has become ever broader. Along with two annual conferences — the TED Conference in Long Beach and Palm Springs each spring, and the TEDGlobal conference in Edinburgh UK each summer — TED includes the award-winning TEDTalks video site, the Open Translation Project and TED Conversations, the inspiring TED Fellows and TEDx programs, and the annual TED Prize.
After the conferences the videos taken at the conference are posted online. They are engaging, entertaining, inspirational, though provoking and well worth every minute you can spend watching them.
Mikael Colville-Andersen is “Copenhagen’s bicycle ambassador.” In this TED video Colville-Andersen “talks about how important the bicycle is for liveable cities.” He also talks about ”how bicycle helmets are threatening bicycle culture.”
His talk is full of great ideas about why cycling is an important part of the current society for our cities. He talks about how cycling saves energy, saves the environment and saves lives. He talks about why helmets have no real value to cyclists. I’ve transcribed his statements as best that I could, but I may not be perfect in my quotes of him.
There is only 50/50 proof that bicycle helmets work. Your risk of brain injury is higher wearing a helmet and you have a 14% greater chance of getting into an injury with a helmet on while cycling.
Pedestrians have a higher incidence of head injuries than cyclists do.
Instead of pushing helmets we should educate drivers so they don’t hit pedestrians and cyclists.
With Copenhagen’s big push on cycling helmets bicycling use fell 5%
When promoting bicycle helmets the idea scares away people from cycling. Because the idea of cycling helmets make it much more dangerous than it really is.
The health benefits of cycling are 20 times greater than any risk of cycling
By not cycling we are killing an additional 15000 people a year which is almost the same number scared away from the sport by the helmet campaign.
However his analysis of what is promoting this, not why it does not work is truly in depth and intelligent.
However
The Culture of Fear is a scary and a very ferocious idea. Colville-Andersen looks at the Culture of Fear several different ways.
The culture of fear does not worry about facts or science.
Fear has become that feeling that controls the public.
The most potent example of the culture of fear is this almost pornographic obsession with safety equipment. Never before have we lived lives so safe and so free of danger as we do right now in the western world.
The culture of fear has created a bubble wrap society.
If there is something that we can make people afraid of there is a long line of people willing to make money on it.
After 250,000 years is this where we really want to be going?
We should choose to go a little bit retro and [let] a little bit of common sense back in our societies. We should let rationality become the new black.
Please watch this video and see if it makes you think. Think about the following then:
- · If humans as safer now than they have ever been, why do need to create a bubble wrap society?
- · Are we creating fear as the marketing tool of the 21st century?
- · If we are, how is that going to affect litigation in the United States?
- · How do we change that?
What do you think? Leave a comment.
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Help The FredCast Fight Multiple Sclerosis: Friends of Mine
Posted: October 10, 2011 Filed under: Uncategorized Leave a comment
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Bossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992
Posted: October 8, 2011 Filed under: Uncategorized | Tags: Appeal, California, Caving, Defendant, Moaning Cavern, National Cave Associationm, Plaintiff, Sierra Nevada 4 CommentsBossi v. Sierra Nevada Recreation Corporation et al, 2004 Cal. App. Unpub. LEXIS 1992
Vittoria M. Bossi, Plaintiff and Appellant, v. Sierra Nevada Recreation Corporation et al., Defendants and Respondents.
C042558
Court of Appeal of California, Third Appellate District
2004 Cal. App. Unpub. LEXIS 1992
March 4, 2004, Filed
Notice: [*1] not to be published in official reports California rules of court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for the purposes of rule 977.
Prior History: Calaveras. Super. Ct. No. CV25839.
Disposition: Affirmed.
Judges: Davis, J. We concur: BLEASE, Acting P.J., SIMS, J.
Opinion By: Davis
Opinion: Despite executing a comprehensive release and covenant not to sue before rappelling to the floor of Moaning Cavern, attorney Vittoria Bossi brought this action for the injuries she sustained during an uncontrolled descent. The jury returned a verdict in favor of the defendants Sierra Nevada Recreation Corporation and two of its employees (Eric Gutierrez and Bruce Brand). The jury also returned a verdict for over $ 100,000 in damages on Sierra Nevada Recreation Corporation’s cross-complaint for the plaintiff’s breach of her covenant not to sue. The plaintiff filed a timely appeal. n1
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1 We dismissed the defendants’ purported cross-appeal from certain non-appealable orders.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*2]
On appeal, the plaintiff challenges the exclusion of the deposition testimony of an unavailable witness, the admission of lay testimony interpreting the release and covenant, and the trial court’s refusal to instruct on assumption of the risk. In a conclusory one-paragraph argument, the plaintiff also contends we must reverse the judgment against her for the breach of the covenant not to sue because she has “clearly demonstrated” that the defendants breached their duty toward her. We shall affirm.
BACKGROUND
The plaintiff’s arguments on appeal do not require us to relate the entirety of the testimony in this matter. Center stage in this case is the release and covenant not to sue. It contains acknowledgments that rappelling is an activity with “inherent dangers that no amount of . . . caution . . . can eliminate”; that she “expressly and voluntarily assumes all risk of death[ and] personal injury . . . including the risk of passive or active negligence of the released parties; or . . . defects or hazards in the equipment”; that she “forever releases, waives, discharges and covenants not to sue Sierra Nevada Recreation . . . for any and all loss or damage, or from any [*3] and all liabilities . . . for injuries and damages arising out of participation . . . on the Rappel . . ., including . . . losses caused by the passive or active negligence of the released parties or . . . defects or hazards in the equipment”; that “this Release . . . extends to all acts of negligence by the Releasees . . . and is intended to be as broad . . . as is permitted by the laws of the State of California”; and that “I have read this Release . . ., fully understand its terms, understand that I have given up substantial rights . . ., and intend my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.”
The plaintiff, a lawyer since 1991, initialed all of the paragraphs except the last one (regarding reading the document and intending an unconditional relinquishment of any negligence claim), and signed it. She had previously rappelled into Moaning Cavern in 1991 and 1994.
On the date of the accident in July 1998, defendant Eric Gutierrez was acting as a belay person on the cavern floor (among other duties). His function was to slow the fall of rappelers. After he helped people who had just descended, Nicole Hamilton relieved [*4] him at the belay post. As Gutierrez walked toward the stairs, he heard the sound of rope sliding rapidly through the rappelling apparatus. He saw the plaintiff descending quickly, bouncing off the rock face. He grabbed the line, which had swung in his direction, and took up the slack. Although this slowed the fall, plaintiff still hit the floor.
In its special verdict, the jury found that the defendants did not intentionally or negligently misrepresent any facts to the plaintiff, that the plaintiff executed a written agreement releasing the defendants from all liability, that the plaintiff breached a contract with Sierra Nevada Recreation Corporation, and that this breach resulted in damages of over $100,000.
DISCUSSION
Before trial, the plaintiff filed a declaration in which she asserted that Nicole Hamilton was no longer available as a witness because she now was living in Oregon and had started a new job, the demands of which precluded her from appearing at trial. The plaintiff moved to admit her deposition testimony pursuant to Code of Civil Procedure section 2025, subdivision (u). In denying the motion, the trial court cited a criterion [*5] for admission pursuant to Evidence Code section 1291, which requires a defendant to have had an interest and motive at the time of the deposition similar to that at trial. It found that the defendants did not have any indication that their employee would be unavailable at the time of trial.
On appeal, the plaintiff focuses solely on whether the witness was unavailable, relying on Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal. App. 3d 115, 118, 201 Cal. Rptr. 887 (where the parties stipulated to unavailability) and Nizinski v. State Bar (1975) 14 Cal.3d 587, n2 590, 121 Cal. Rptr. 824 (deponent more than 150 miles from court). The defendants claim the trial court did not abuse its discretion (People v. Waidla (2000) 22 Cal.4th 690, 717) under Evidence Code section 1291 in excluding the deposition.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n2 We note both parties have incorrectly cited this case as appearing at “14 Cal. App. 3d 560.”
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*6]
Evidence Code section 1291, however, is inapplicable. It apples only to depositions taken in another action, not the same action, the use of which is covered “comprehensively” in the discovery statutes. (Recommendation Proposing an Evidence Code, 7 Cal. Law Revision Com. Rep. (1965) p. 250; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 262, p. 980.)
We need not belabor the question of whether the trial court might have properly exercised its discretion in resolving the criteria of unavailability and diligence (e.g., Code Civ. Proc., § 2025, subds. (u)(3)(B)(iv), (u)(3)(B)(v)); plainly, this was not the basis of its ruling, so we have no way of discerning the result of a properly informed exercise of its discretion. Nor need we determine whether the deposition was admissible as a matter of law under some other provision (e.g., id., subd. (u)(3)(A) [witness more than 150 miles from court]). The short answer is the utter harmlessness of excluding the deposition at trial.
The plaintiff does not at any point suggest the deposition included any evidence relevant [*7] to the validity of the release that she had executed before rappelling. Instead, the plaintiff adverts only to the relevance of the deposition to the issue of whether the defendants had increased the risk of the activity. As we explain subsequently, this issue is relevant only in cases involving an implied assumption of the risk. An effective release that manifests an express assumption of the risk is a complete defense to a negligence action. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 (Allan).)
II
In her brief, the plaintiff asserts the trial court erred in permitting “several” witnesses “over objection” to testify regarding their opinion of the effect of an unspecified release that they signed before rappelling into Moaning Cavern. Her citation to the record, however, is to the testimony of two witnesses, n3 and the plaintiff does not in either instance voice an objection to the topic.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n3 According to Webster’s Collegiate Dictionary, “several” refers to “an indefinite number more than two and fewer than many.” (Webster’s 10th Collegiate Dict. (2001) p. 1070.)
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*8]
If an appellant does not provide a citation to the record in support of an argument, we are not obliged to independently search through the transcripts to find the facts on which the argument rests. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Here, defendants have represented in their brief that plaintiff never objected. Plaintiff did not file a reply contesting that assertion. Absent any proof that plaintiff registered an objection to this testimony, the issue is waived on appeal. (Evid. Code, § 353, subd. (a).)
III
The plaintiff initially offered an instruction stating the abstractly correct proposition that the defendants had a duty (under the doctrine of “assumption of the risk”) not to increase the risks inherent in a sport. Without providing any citation to the record, the plaintiff contends that the trial court refused to instruct on assumption of the risk (also without providing the basis for the court’s ruling), for which reason she withdrew the proposed instruction. The defendants do not dispute this account. [*9]
The plaintiff’s argument grows out of a misreading of Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, where, in an appeal from summary judgment for the defendant, we first found that the release was ambiguous as to whether it applied on the day that the plaintiff was skiing (id. at pp. 363-364), and then held that there was conflicting evidence about whether the defendant had increased the risk of recreational skiing through a failure to warn recreational skiers that it had modified the ski run with jumps for a racing event later that day (id. at pp. 365-367). Solis does not provide any support for the plaintiff’s proposition that she was entitled to a special instruction on the “increased risk” limit on assumption of the risk where there was a threshold issue of a valid release.
Rather, the plaintiff’s posture is akin to the appellant’s in Allan, supra: “All Allan’s discussion of . . . assumption of the risk . . . is essentially beside the point for one very fundamental reason: Knight v. Jewett[ (1992)] 3 Cal.4th 296 [Knight], and its discussion of . . . assumption of [*10] the risk, referred to implied assumption of the risk. Here, it is beyond dispute that Allan signed an express assumption of the risk, which warned him in no uncertain terms that he could . . . suffer serious injury. Knight itself recognized that express assumption of the risk remains a complete defense in negligence actions.” (51 Cal.App.4th at p. 1372; see also Knight, supra, 3 Cal.4th at p. 308, fn. 4; Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1217-1218; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1729-1730.) Since the jury in the present case upheld the validity of the execution of the release, plaintiff’s complaint about the alleged instructional error is moot.
IV
The entirety of the plaintiff’s attack on the judgment on the cross-complaint against her for breach of the covenant not to sue rests on the viability of her claim of negligence. Having failed to demonstrate any basis for invalidating the judgment enforcing the release, she has failed to provide a basis for reversing the judgment on the cross-complaint.
DISPOSITION
The judgment is affirmed.
DAVIS, J.
We [*11] concur:
BLEASE, Acting P.J.
SIMS, J.
Jim Moss\r\nJHMoss@Earthlink.net\r\n
G-YQ06K3L262
http://www.recreation-law.com
Avalanches and Airbags = Survival
Posted: September 29, 2011 Filed under: Uncategorized Leave a commentIf you want a reminder of how scary Avalanches are, watch these videos from survivors.
Both of these videos were taken by people wearing helmet cams who got caught in an Avalanche. Both are alive because they were wearing airbags.
http://www.youtube.com/watch?v=0pSBUXFJXiY
http://vimeo.com/22250873
Don’t go out of bounds unless you know what you are doing and have the proper training and equipment. Just owning the stuff is not good enough.
Do Something
If you are going to go out of bounds, go as a group, wear a beacon and KNOW HOW TO USE IT, take a shovel and a probe and make sure everyone else has one also and Buy and USE and Avalanche Airbag System.
My Favorites:
ABS Airbags
Mammut Avalanche Beacons
Either G3 Probes and Shovels
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Great editorial questioning why we need laws to “protect” us from ourselves.
Posted: September 28, 2011 Filed under: Uncategorized Leave a commentBesides, as many of you know, the effectiveness of most safety gear is less successful than the laws requiring the gear.
An editorial in the Sacramento Bee titled Editorial Notebook: Do we need laws to end every kind of risk?, upports California Governor Jerry Brown’s vetoing a law that would have fined parents for allowing their children to ski without a helmet. (See California bill to require helmets on skiers and boarders under age 18 dies lacking governor’s signature.) The Governor vetoed the bill with this statement: “Not every human problem deserves a law.”
The editorial looks at the entire issue from several different perspectives. The writer first looks at the proliferation of laws applying to Californians.
In California, bicyclists under the age of 18 are required to wear helmets. But it doesn’t stop at bicycles. Skateboarders, in-line skaters and scooter riders are required by law to wear helmets, too, if they are under 18.
Even bike passengers under the age of 5 have to wear helmets.
In New Mexico, tricycle riders are required to wear helmets – really, tricycle riders!
The author then states that the laws are just creating a nation of wimps.
Have we become a nation of wimps, so risk-averse we have created protective gear for every potential mishap, no matter how remote? Worse, we’ve written laws that force us into this perpetual defensive crouch.
The author blames many different groups of people for the unnecessary laws.
I can’t tell if it’s the insurance industry that’s pushing it or the trial lawyers trawling for someone to sue or just nervous parents with their single precious progeny. I suspect a bit of all three.
Nor does he let the media escape the blame.
There’s another culprit in all this: the media. We provide blanket coverage of every tragedy. Every crime, every accident, particularly when a child is involved, is endlessly reported on, blown out of proportion. In ways subtle and not so subtle, we tell parents – and by extension our children – be afraid, be very afraid.
I agree with the media statement. Growing up I had access to one newspaper. It printed what occurred in the Nation, the world, Ohio, the local county and sports. There was no room, nor need for an article on a skiing accident in California or a kayaking death in Maine. It did not matter; those were local issues for those local newspapers. Now we get news thrown at us from around the world with the same importance as the hometown city council meeting, and we are expected to show the same concern.
I am as guilty of that as any other media outlet. I find tragedies and lawsuits and post them on my Facebook page regularly. The article has me thinking. Is my audience narrow enough, industry people, that I’m not creating problems?
The author’s final issue is do we need all the protective gear?
When I was a kid, not every accident was grounds for a lawsuit. When I was a kid, playgrounds, toys and athletic equipment were not cluttered with warning signs written by insurance companies to protect against liability.
Combine all these issues and the author makes valid points. Add to that the effectiveness of current helmets used in recreational sports, and the entire argument falters. Add to that the issue that mandatory helmet laws reduce participation. See A father of a deceased skier pushing for a helmet law in New Jersey.
Do Something
Go to the website, read the article and support comments like this. You can also like the article on Facebook.
See Do we need laws to end every kind of risk?
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
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Nick & Betsy Clinch at the AAC Tonight
Posted: September 26, 2011 Filed under: Uncategorized Leave a comment
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Sierra Magazines ranking of the Greenest Schools
Posted: September 23, 2011 Filed under: Uncategorized Leave a commentCongratulations you schools!
1. University of Washington (Seattle, WA)
2. Green Mountain College (Poultney, VT)
3. University of California, San Diego (San Diego, CA)
4. Warren Wilson College (Asheville, NC)
5. Stanford University (Stanford, CA)
6. University of California, Irvine (Irvine, CA)
7. University of California, Santa Cruz (Santa Cruz, CA)
8. University of California, Davis (Davis, CA)
9. Evergreen State College (Olympia, WA)
10. Middlebury College (Middlebury, VT)
11. University of New Hampshire (Durham, NH)
12. Appalachian State University (Boone, NC)
13. Colby College (Waterville, ME)
14. Western Washington University (Bellingham, WA)
15. University of California, Los Angeles (Los Angeles, CA)
16. University of Connecticut (Storrs, CT)
17. Clark University (Worcester, MA)
18. Cornell University (Ithaca, NY)
19. Bowdoin College (Brunswick, ME)
20. University of Maryland (College Park, MD)
See Sierra Magazine Announces the Nation’s Coolest Schools
I would send you to the seeing magazine website by the article there goes page by page and takes 20 minutes to figure out what is going on. Skip it.
What do you think? Leave a comment
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Great Ted Talks for all Businesses
Posted: September 15, 2011 Filed under: Uncategorized Leave a commentHowever listen to these with a legal mind and learn even more
Julian Treasure: 5 Ways To Listen Better
Laura Trice Suggests We All Say Thank You
Patrick Awuah On Educating Leaders
Diana Laufenberg: How to Learn? From Mistakes
Richard St. John’s 8 Secrets of Success
Matt Cutts: Try Something New For 30 Days
Jonathan Drori On What We Think We Know
JK Rowling: The Fringe Benefits Of Failure
Rabbi Jackie Tabick: The Balancing Act Of Compassion
Caroline Casey: Looking Past Limits
Michael Sandel: What’s the Right Thing to Do?
If you do not know about TED, you are missing a big boat on improving your business, your life and opening up your mind to new ideas!
What do you think? Leave a comment.
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Dealing with an accident, injury or problem is a conflict, when you allow yourself to create one.
Posted: September 7, 2011 Filed under: Uncategorized Leave a commentThis article has some great ideas on dealing with conflicts and avoiding them.
We have adopted an attitude in the US that anytime someone is injured there is a conflict. If you disagree with this statement why do customers get sent to customer service and injured or upset customers get sent to risk management?
That whole approach is wrong, but for many people that course is set in stone. If you can’t deal with every customer, mad, injured, happy, healthy, or with a broken part of bike equally, at least learn how not to create greater problems.
In the article, No Batteries Required: 8 Conflict Resolution Tips the author refers to a book Beyond Reason: Using Emotions as You Negotiate, Roger Fisher and Daniel Shapiro. The book looks at dealing with the emotions involved in conflicts.
1. Appreciation: Do you feel heard, understood and valued for your point of view?
2. Affiliation: Are you treated as an adversary and kept at a distance, or are you treated as a colleague?
3. Autonomy: Do you have the freedom to make a decision without feeling that someone else is telling you what to do?
4. Status: Do you feel treated with respect, or do you feel diminished?
5. Role: Do you have a fulfilling or meaningful role in your conflict situations or negotiations?
Why are these issues important? Because 80 to 90% of the time, the person on the other side of the conflict is dealing with emotion, not with dollars and sense. We’ve been trained to see any conflict as dollars. However, that is a very rare situation until after we have escalated the conflict to that level or refused to deal with the problems and given the grieved person no other choice.
The article then points out 8 things to do in a conflict situation.
1. Become aware of your role in escalating or de-escalating the conflict
2. Know your conflict resolution style
3. Help people see the logic behind your argument
4. Don’t withhold a necessary apology
5. Let go of your need to always be right
6. Don’t lose sight of the higher purpose
7. Don’t lecture
8. Leave some things unsaid
So what does this mean to you?
It means you can use these ideas to help you stop complaints and maybe stop lawsuits.
I’ve been “talking” and writing about number 4 for decades. Don’t be afraid to apologize. It is a difficult thing to do, but that is what we were trained to do, and consequently, that is what we are trained to expect. Remember the person on the other side of the conflict has emotional issues usually. If you deal with the emotions, you can eliminate many of the monetary issues or at least get them down to a reasonable number.
And saying your sorry does not mean you are liable.
Learn these tips and maybe your corporate life will be better as the article and book suggest, more importantly when dealing with your customers you may resolve more problems and create less lawsuits.
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I’m tired of people trying to tell us what we can and cannot do to recreate.
Posted: August 31, 2011 Filed under: Uncategorized Leave a commentOn top of that, when we do get hurt we then are supposedly a bigger liability.
See Skydiving Quadriplegic’s Death Raises Questions of Safety for Disabled Thrill Seekers
A Quadriplegic skydiver died when he could not deploy his parachute and it failed to automatically deploy. The article about his death raises the question about whether or not he should be allowed to skydive after his death.
According to video footage and statements from other skydivers, Fogle [deceased] was on his back for much of the 1,200-foot free fall, leading investigators to conclude that his disability prevented him from righting his position and manually deploying his chute.
Prior to his death, the skydiver had completed 125 successful skydives.
In the five years since his certification, Fogle had jumped 125 times without incident. But his death raised questions of whether he should have been allowed to skydive in the first place.
Yet the skydiver knew what he was doing and wanted to live life to the fullest. 125 skydives and someone who does not skydive “knows more” to say to the skydiver, you can’t do that anymore because it is not safe.
“Live to the point of tears,” is listed as one of Fogle’s favorite quotes on Facebook. The other: “Remember, Zack, if you can’t be safe, be spectacular.”
Do not sit back and expert the problem to go away. The problem is getting worse.
A man is restricted to a life very different from what we learn to expect and then people, who have no business sticking their nose in, decided to tell someone what they can and cannot do.
The article also pointed out that disabled athletes are turned away from many activities because the managers/owners/businesses consider them a greater liability.
If I am confined to a wheelchair, why can’t I decide how I am going to live? For that matter, how I’m going to die.
Stand up for everyone’s right to recreation. Don’t let anyone make rules that restrict your right or anyone’s right to recreate the way we want. There is always a balance between the land and the ability to recreate without destroying the land, but hockey rinks, airplanes and soccer fields do not need restrictions.
When you see articles like this, leave comments and write letters to the editor saying you have the right to recreate and so should everyone. Copy your state and federal representatives to let them know how you feel. It is a sad state of affairs, but to go out and have fun, you also have to become politically involved and voice your concerns.
Recreate and stand up for everyone to recreate.
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I think a Boy Scout fell of a ropes course and is suing because of it.
Posted: August 30, 2011 Filed under: Uncategorized Leave a commentBut it is really hard to tell from the article.
See Boy Scouts Sued Over 30-Foot Fall At Skymont Reservation
Here are the facts from the article.
Tyler and two other Scouts were participating in a vertical climb activity. While competing against one another, they would “strap on appropriate gear and climb a rope that is affixed to an adjoining cable approximately 30 feet in the air which runs over and through a cable and pulley system.”
The suit says Tyler had climbed to the top of the rope near the junction of the pulley and the cable when a staff member assisting with the competition “began to run out of rope.”
The complaint says, “The rope was not secured in any fashion, therefore, the staff member belayer was unable to safely negotiate Tyler from the top of the rope and instead Tyler fell thereby sustaining injury.”
I’m guessing that the scouts were on a ropes course, other than that I’m not sure what happened. It could be the lawyer did not understand and wrote the complaint this way or it could be the reporter did not understand. I suspect the lawyer did not understand.
Either way, $3.5 million is a lot of money for injuries that someone lived through who is not in a will chair.
What do you think? Leave a comment.
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Lawsuit over low head dam drowning against city of Topeka Kansas
Posted: August 25, 2011 Filed under: Uncategorized Leave a commentMen who drowned were canoeing on the river at 11:00 PM at night. Complaint says the sign was not lit.
Low head dams are killing machines, almost perfect killing machines. If you go over a low head dam you are going to die. If you are out canoeing at night in the dark, you are going to die because you won’t see the low head dam, you won’t see any signage about the dam and you won’t see anything that might kill you.
Sure the city did not comply with an agreement with the Army Corp of Engineers, but what has that got to do with the low head dam…at NIGHT. Could the canoeists see the take out, they could not see the sign.
No one lights signs. In the ocean buoys may have lights on them but none of the signs are lit.
It’s sad when someone dies like this, that sadness will not be erased by a lawsuit based on stupid facts.
See Drowning lawsuit proceeding set
What do you think? Leave a comment.
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Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Posted: August 22, 2011 Filed under: Uncategorized | Tags: Adventure travel, Colorado, Negligence per se, Outdoor recreation Leave a commentLombard v. Colorado Outdoor Education Center, Inc., 2011 Colo. App. LEXIS 1401
Court also insinuates that the case was brought to recover worker’s compensation benefits.
This suit was brought by a school teacher who was injured when she attended a training session. She had climbed into a loft to read and was injured when she climbed down. Because she was “working” at the time she received worker’s compensation benefits for her injuries.
The teacher was classified as a “business invitee” acting within the scope of her employment. She was there at the request or to do business with the land owner.
The suit was brought by the injured teacher and her school district. The school district would not have suffered any actionable loss, unless it was self-insured and/or acting under a subrogation clause in a worker’s compensation policy.
Summary of the case
The court started its discussion of the case comparing negligence per se and premises liability. Premise’s liability is defined as the duty owed by a land owner, or a person responsible for the land, such as a tenant, to someone coming upon their land. There are three types of invitees to land: trespasser, licensee and invitee. A trespasser is there without the consent and/or knowledge of the land owner. A License has permission to be on the land, but is not on the land for the benefit of the land owner. The duty of care is minimal with the trespasser and grows with the licensee and is the greatest with an invitee.
The court first started with the negligence side of the discussion. The court defined negligence under Colorado law as:
Negligence is the failure to do an act a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury.
A person bringing a negligence claim must establish a duty, a breach of that duty, causation, and damages.
The court then defined Negligence Per Se under Colorado law:
Negligence per se is a common law doctrine which provides that legislative enactments, such as statutes and ordinances, can prescribe the standard of conduct of a reasonable person, or duty, such that a violation of the statute or ordinance constitutes a breach of duty of care. Lombard, 187 P.3d at 573. A plaintiff may recover under a negligence per se theory if he or she can establish that the defendant violated the statutory standard of care, that the statutory standard of care was intended to protect against the injuries sustained, and that the violation was the proximate cause of the injuries sustained. Id. Negligence per se, therefore, serves to conclusively establish the defendant’s breach of a legally cognizable duty owed to the plaintiff. Id.
Negligence per se used to be used to prove premise’s liability actions. However, that is no longer possible under Colorado law. Now a premise’s liability action must be proven according to the Colorado statute.
The plaintiff attempted to prove that the land owner/camp should have known that the ladder was dangerous, and therefore, they owed a duty to the plaintiff to either inform her of the danger or fix the ladder so it was not dangerous.
The jury found that although the plaintiff had been injured, there was no proof, the ladder was a dangerous situation that should have been fixed prior to the plaintiff entering upon the land. The plaintiff and the school district lost its case.
So Now What?
No one brought up the issue of assumption of the risk. By climbing up the ladder to read, she obviously assumed the risk of climbing down? However, assumption of the risk may not be a defense to a premise’s liability claim?
When you own or operate on land (and if you don’t I want to know what you do because water, rivers and lakes from a liability standpoint are land….) you owe the highest duty to people you invite to come on the land for your benefit. An easier way to define that is you owe the highest degree of care t your customers, guests and clients.
The issue then becomes when the law or code surrounding a building or structure has changed, and the building has not. An example would be fire code. Building’s built in the 60’s did not need smoke alarms, fire alarms, etc. Now days you must. It is difficult to determine what you must do, should do and don’t need to do.
However, there are a couple of things to do to keep you knowledgeably with issues.
· Every couple of years, invite a contractor or architect out to look at your structure. Do not ask for a written report, just take notes on what you should or must fix.
· Always fix any item that is a safety issue. Any law that was passed to keep people safe should be dealt with to keep your guests safe.
· Always make sure your buildings meet OSHA requirements. You may not need to have a railing that meets OSHA requirements for your guests but if your employees are on the deck, then you must. See OSHA issues $12,000 in fines for Ski Patrollers death to ski area.
· If you are dealing with minors/children, fix everything all the time.
What do you think? Leave a comment.
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Friday: Great articles with great ideas for businesses
Posted: August 19, 2011 Filed under: Uncategorized Leave a commentI read a lot of stuff every day. I thought I would share some today.
5 Things To Know About The ADA
How To Recover From A Social Media PR Disaster
7 Tips For Beating Fear And Becoming A Stellar Public Speaker
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