Study shows 87000 jobs in recreation in Arizona

Posted: June 16, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Probably all of them are in Flagstaff and Prescott…

The Access Fund generated this study showing the economic impact of recreation in Arizona.
The study found:

38 percent of human-powered recreation outings result in an overnight stay.
Human-powered recreation produces $5.3 billion in annual retail sales in Arizona and generates nearly $371 million in state tax revenue.
Spending on human-powered recreation activities is responsible for 12 percent of Arizona’s total retail economy.
Human-powered recreation directly supports nearly 87,000 Arizona jobs, and indirectly supports another 100,000 jobs.

Do Something

Let your congressman know that the Land and Water Conversation Fund should be funded to provide jobs.
See Human -powered Recreation Generates 87,000 Jobs in Arizona

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Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue.

Posted: June 13, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Paz v. Life Time Fitness, Inc., et al., 2010 U.S. Dist. LEXIS 133058

Texas requires that a release be clear and conspicuous to anyone signing it. The release must inform the signor that they are giving up their legal rights.

The plaintiff, an injured child, was attending a summer day camp at a fitness center. She and her parents sued the fitness center for her injuries. The defendant filed a motion for summary judgment based on a participation agreement signed by the mother when she enrolled her daughter in the program. The participation agreement included a section entitled “Assumption of the Risk” and another section labeled “Release of Liability.”

The plaintiff’s sued for negligence, gross negligence and premises liability. Premises liability is a claim that the defendant failed to keep the premises (land or building or both) safe for the plaintiff. As the owner of land, each state sets for the requirements for what a landowner must do to keep his or her land safe for people coming upon their land. The amount of protection a person coming on the land deserves is also dependent upon their status when they enter the land and their relationship to the land owner.

The suit was brought in the Federal District Court. In the Federal Court System this is the trial court level. This level of courts, because it is in the Federal System publishes the opinions of the trial court. This is not done in most state court decisions. So in this case, we have an opinion by the trial court that is published.

The issue at the time was not one that had been decided by the Texas Supreme Court. The law of Texas applies to the parties in a Federal Court when the issue is a state issue between parties of two different states. (Confusing? I know.) The federal court system was set up to handle two major types of lawsuits; those against the federal government or concerning federal law and suits between parties of different states or countries. Here, there was no issue of federal law and neither of the parties were federal agencies so the case must be based on the parties being from different state. The case itself is silent on that issue.

Consequently the Federal Court was to decide a State Court legal issue. The court then looked at the Texas decisions and made its ruling on how the Federal Court thought the Texas Supreme Court would decide. This is really no different than how any legal decision is made; how will the court at the next level decide, it is just in this case the issue was discussed in the decision.

So? Summary of the case

The court discussed two major issues in making its decision. The first is Texas’ fair notice requirements for releases. The fair notice provision requires the person signing the release must know what they are signing. That means the release must be conspicuous. As the court stated, fair notice requires:

(1) a party seeking to enforce a release provision comply with the express negligence doctrine

(2) that the provision be conspicuous.

The first part requires part of the test requires the release must express the intent (to release or waive claims in advance of an injury) unambiguously. That means very clearly within the document the parties must be able to see that this is a release. The conspicuous part means that the release language must be so conspicuously written so that a reasonable person would notice it.

In short, you have to identify the document as a release and the release language must be pointed out and understandable. This requirement can be met if the person signing the document, the releaser knows they are signing a release.

The court then looked at whether Texas allowed a parent to sign away a minor’s right to sue and surmised that Texas would follow the majority and not allow a parent to sign away a minor’s right to sue.

So Now What?

This case is short and sweet and clearly outlines the requirements for a release under Texas law. The information contained here should be used by everyone writing a release because it is a very good format for making sure you prevent people from suing you if they are injured.

That means, you want to write a document that shows people when they sign it they can’t sue. That way, your release will not be tested in court. I always get a kick out of releases that when I read them I realize it is just waiting to be tested. The release language and the type of document are so hidden in the release or so obscure that there is no way that anyone would understand what they are signing.

Tell people in advance that they are signing a release. Make sure the release language in your document is clear and in the document in a way that any person reading the document can clearly and easily see they are signing a release.

Never give anyone a reason in your release to test it.

As far as minors in a program in Texas you are going to have to rely on the doctrine of assumption of the risk. You need to educate the parents and their children on the risks of the activity and do that in a way that you can prove to a jury that the child knew what they were doing was going to injure them. If they are too young to train and/or educate, then you must keep the children safe.

What do you think? Leave a comment.

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Paz v. Life Time Fitness, Inc., et al., 2010 U.S. Dist. LEXIS 133058

Posted: June 13, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Paz v. Life Time Fitness, Inc., et al., 2010 U.S. Dist. LEXIS 133058
Pablo Paz, et al., Plaintiffs, vs. Life Time Fitness, Inc., et al., Defendants.
CIVIL ACTION NO. H-09-2804
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION
2010 U.S. Dist. LEXIS 133058
December 16, 2010, Decided
December 16, 2010, Filed
COUNSEL: [*1] For Pablo Paz, Individually and A/N/F of Jane Doe, Ruth Paz, Plaintiffs: Casey Michael Brown, Michael Stephen Callahan, LEAD ATTORNEYS, The Callahan Law Firm, Houston, TX.
For LIFE TIME FITNESS, INC., LTF CMBS I, L.L.C., LTF CLUB MANAGEMENT COMPANY, L.L.C., LTF CLUB OPERATIONS COMPANY, INC., GENE SMITH, Defendants: Marc A Sheiness, LEAD ATTORNEY, Sheiness Scott et al, Houston, TX.
For LTF CLUB OPERATIONS COMPANY, INC., LTF CMBS I, L.L.C., LIFE TIME FITNESS, INC., GENE SMITH, LTF CLUB MANAGEMENT COMPANY, L.L.C., LIFE TIME FITNESS, INC., GENE SMITH, LTF CLUB MANAGEMENT COMPANY, L.L.C., LTF CMBS I, L.L.C., LTF CLUB OPERATIONS COMPANY, INC., ThirdParty Plaintiffs: Marc A Sheiness, LEAD ATTORNEY, Sheiness Scott et al, Houston, TX.
JUDGES: Lee H. Rosenthal, United States District Judge.
OPINION BY: Lee H. Rosenthal
OPINION
MEMORANDUM AND OPINION
This is a personal injury suit brought by parents individually and on behalf of their minor daughter. The child was injured in June 2008 while attending a summer day camp at a fitness center in Sugarland, Texas. The defendants have moved for summary judgment on the basis of their affirmative defense of release. (Docket Entry No. 22). The defense is based on a “participation agreement” [*2] the mother signed when she enrolled the child in the program. The agreement includes one section labeled “ASSUMPTION OF RISK” and another labeled “RELEASE OF LIABILITY.” The defendants assert that the agreement is an enforceable preinjury waiver and move to dismiss the plaintiffs’ claims for premises liability, negligence, and gross negligence. The plaintiffs respond that under Texas law, a parent’s signature on a preinjury release is not enforceable as a waiver of the minor’s rights. Based on the pleadings, the motion and response, the parties’ submissions, and the applicable law, this court denies the summary judgment motion. The reasons are explained below.
I. The Participation Agreement
The Participation Agreement contained two sections with titles in bolded all capital letters labeled, “ASSUMPTION OF RISK” and “RELEASE OF LIABILITY,” which read in pertinent part:
ASSUMPTION OF RISK
The undersigned understands that there is an inherent risk of injury, whether caused by Participant or someone else, in the use of or presence at a Life Time Fitness center, the use of equipment and services at Life Time Fitness center, and participation in Life Time Fitness’ programs. This includes but [*3] is not limited to, indoor and outdoor pool areas with water slides, a climbing wall area, ball and racquet courts, cardiovascular, and resistance training equipment, personal training and nutrition classes and services, member programs, a child center, and spa and café products and services. The risk includes, but is not limited to:
1) Injuries arising from the use of any of Life Time Fitness’ centers or equipment, including any accidental or “slip and fall” injuries;
2) Injuries arising from participation in supervised or unsupervised activities and programs within a Life Time Fitness center or outside a Life Time Fitness center, to the extent sponsored or endorsed by Life Time Fitness;
3) Injuries or medical disorders, including, but not limited, to heart attacks, strokes, heart stress, sprains, broken bones and torn muscles or ligaments, resulting from my use of or presence at a Life Time Fitness center, Participant’s use of equipment or services at a Life Time Fitness center, or my participation in Life Fitness’ programs; and
4) Injuries resulting from the actions taken or decisions made regarding medical survival procedures.
The undersigned understands and voluntarily accepts this [*4] risk on behalf of Participant. The undersigned agrees to specifically assume all risk of loss, theft or damage of personal property for Participant while he or she is using or present at any Life Time Fitness center, using any lockers, equipment or services at any Life Time Fitness center or participating in Life Time Fitness’ programs whether such programs take place inside of or outside of a Life Time Fitness center.
RELEASE OF LIABILITY
The undersigned waives any and all actions that may arise against Life Time Fitness as well as its owners, directors, or volunteers, as a result of any such injury, loss, theft, or damage to any such person, including and without limitation, personal bodily or internal injury, economic loss or any damage to Participant including but not limited to the injuries described above, resulting from the negligence of Life Time Fitness or anyone else using a Life Time Fitness Center. The undersigned agrees to defend, indemnify, and hold Life Time Fitness harmless against any claims arising out of the negligence or willful acts or omissions of me or Participant.
The agreement also contained a clause in bold typeface above the signature line stating in part:
I [*5] hereby certify that I have read and understand this entire Agreement and agree to and accept the terms and conditions of this entire application . . . .
II. The Applicable Legal Standards
A. Summary Judgment
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). “A fact is ‘material’ [*6] if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable [*7] to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
B. Texas Law on Preinjury Releases
Texas imposes fair notice requirements on preinjury releases. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508–09 (Tex. 1993). A release that fails to satisfy the state’s fair notice requirements is unenforceable as a matter of law. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). Fair notice requires that (1) a party seeking to enforce a release provision comply with the express negligence doctrine and (2) that the provision be conspicuous. Id. The express negligence doctrine provides a party seeking to release potential claims against another party for the other party’s negligence must express that intent in unambiguous terms within the four corners of the agreement. Reyes, 134 S.W.3d at 192. The conspicuousness requirement provides that the releasing language must be conspicuously written so that a reasonable person against whom it is to operate should notice it. Id. at 192; Dresser, 853 S.W.2d at 508. Texas courts have consistently held that whether an agreement provides fair notice of a release provision is immaterial if the releaser [*8] had actual knowledge of the existence of the release provision. Dresser, 853 S.W.2d at 508 n.2; Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990) (a party who, before entering into contract, has actual knowledge of its terms cannot escape enforcement of those terms on the ground that the terms are inconspicuous); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 20 S.W.3d 119, 126 (Tex.App.–Houston [14th Dist.] 2000, pet. denied) (holding an indemnity agreement read by indemnitor conspicuous and rejecting indemnitor’s argument that the indemnitee must show that the indemnitor actually noticed the indemnity language when reading the agreement).
The plaintiffs rely on an additional aspect of the law governing preinjury releases. Texas and other courts have held that when a parent signs a document that releases a defendant of any liability for injuries suffered by a minor, that release is unenforceable on the basis of public policy.
The leading case in Texas appears to be Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App. — Houston [14th Dist.] 1993, no writ). In that case, the parents sued an amusement park for damages resulting from personal injuries their daughter incurred on a ride. [*9] The trial court granted summary judgment based on a “Waiver of Liability” form (“waiver”) signed by the child’s older sister who accompanied her to the park. The appellate court reversed, holding that § 12.04(7) of the Texas Family Code, (the predecessor to § 151.001(a)(7)), which empowers a parent to make legal decisions concerning their child, does not give parents the power to waive a child’s cause of action for personal injuries. The court stated that it based its decision “on what our supreme court has described as a ‘strong, long-standing policy of this state to protect the interests of its children.'” Id. at 210 (quoting Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991) (holding that parents could not agree to reduce the amount of child support because it is a benefit of the child, not the custodial parent, based on a public policy to protect children)).
Other states and federal courts have also addressed the propriety of a parent or guardian’s execution of a preinjury release on behalf of a minor child. Most have held that preinjury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 629–32 (S.D. W.Va. 2004) [*10] (finding that a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); In re Complaint of Royal Caribbean Cruises Ltd., 459 F. Supp. 2d 1275, 1279–81 (S.D. Fla. 2006) (under Florida law, parent’s preinjury release of liability on behalf of minor child was unenforceable to exonerate the commercial lessor of personal watercraft from liability for injuries sustained by child in accident that occurred while the minor was a passenger on watercraft operated by the parent/lessee); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 146–47 199 Ill. Dec. 572, 634 N.E.2d 411 (1994) (finding a parental preinjury waiver unenforceable in a case involving a minor child injured after falling off a horse at a horseback riding school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich. App. 552, 550 N.W.2d 262, 263 (1996) (“It is well settled in Michigan that, as a general rule, a parent [*11] has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (2006) (finding in a case involving a child injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County, 777 S.W.2d 1, 6–7 (Tenn. Ct. App.1989) (extending the law that a parent could not execute a preinjury release on behalf of a minor child to a mentally handicapped 20-year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001) (concluding in a case involving a child injured by falling off a horse provided by a commercial business that “a parent does not have the authority to release a child’s claims before an injury”); Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 492–93, 834 P.2d 6 (1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a [*12] ski school is contrary to public policy).
There are cases enforcing preinjury releases executed by parents on behalf of minor children. Most of these cases involve a minor’s participation in school-run or community-sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564–65, 274 Cal. Rptr. 647 (Cal. Ct. App. 1990) (finding the preinjury release executed by a father on behalf of his minor child enforceable against any claims resulting from the child’s participation in a school-sponsored event); Sharon v. City of Newton, 437 Mass. 99, 112, 769 N.E.2d 738 (2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity from liability for negligence because the threat of liability would strongly deter “many individuals from volunteering for nonprofit organizations”). As the Ohio Supreme Court explained in Zivich, in community [*13] and volunteer-run activities, the providers cannot afford to carry liability insurance because “volunteers offer their services without receiving any financial return.” 696 N.E.2d at 205.
III. Analysis
The parties have not cited a Texas Supreme Court case addressing the enforceability of a parent’s preinjury release of liability against a minor child. The guidance provided by the Texas appellate court case law and the underlying statutes provides a reliable basis for making an Erie prediction about how the highest Texas state court would rule if confronted with the question. “When making an Erie-guess in the absence of explicit guidance from the state courts, [this court] must attempt to predict state law, not to create or modify it.” Assoc. Inter. Ins. Co. v. Blythe, 286 F.3d 780, 783 (5th Cir. 2002) (citation omitted).
Based on the case law in Texas and in other jurisdictions, this court holds that the preinjury release executed by the minor’s mother in this case is not enforceable to release the defendants from all liability for the minor’s injuries. The record does not suggest that the defendants were operating a nonprofit community or school program. Under the majority approach, [*14] the release of a commercial enterprise from liability for the child’s injuries is not enforceable.
The motion for summary judgment is denied.
SIGNED on December 16, 2010, at Houston, Texas.
/s/ Lee H. Rosenthal
Lee H. Rosenthal
United States District Judge

Moss Quote 6/10/11

Posted: June 10, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Marketing makes promises that Risk Management has to pay for….

Application Deadline Reminder: Mountain and Wilderness Writing

Posted: June 3, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Literary Arts
Application Deadline Reminder:
Mountain and Wilderness Writing

Financial aid up to 100 per cent is available
Mountain and Wilderness Writing
Program dates: October 28, 2011 – November 18, 2011
Application deadline: June 15, 2011
In this unique residency program, six writers delve into their own writing projects (essay, memoir, biography, feature article, poetry, or work of fiction) on a topic in the area of mountain or wilderness culture. This includes writing with a focus on adventure, history, or the environment.
Within the spectacular environs of Banff National Park, this residency offers participants individual consultation with faculty editors Marni Jackson and Tony Whittome, regular workshop discussions, and work space in the Leighton Artists’ Colony studios.
To receive updates on all other Banff Centre writing programs, please join our contact list.
More information

A Place for Artists
The Banff Centre puts the needs of artists above all else, providing time and space for inspired creativity and intense productivity (plus bacon and dessert every day!)
Watch the Video

Leighton Artists’ Colony for Independent Residencies
Set in a quiet and secluded wooded setting with a spectacular backdrop of the Canadian Rockies,
the Leighton Artists’ Colony Studios offer professional artists the opportunity for concentrated work in an exceptional environment. See the Leighton Artists’ Colony
For more information please contact:
1-403-762-6180 or 1-800-565-9989
arts_info@banffcentre.ca
www.banffcentre.ca/writing/
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The Banff Centre, 107 Tunnel Mountain Drive, Box 1020, Banff, Alberta T1L 1H5, Canada

Michigan’s state parks have a camp green program encouraging campers to be eco and energy efficient while camping.

Posted: June 2, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

You’re in a motorhome (first problem) and leave with the windows open and the air conditioning on in a state park?

The “Go Green” plan has six steps.

1. Be smart about air conditioning
2. Turn off the lights
3. Conserve water
4. Properly dispose of gray water, sewage
5. Don’t burn trash
6. Recycle

It makes sense; we should not leave our eco consciousness at home just because we are outdoors. (We seem to leave our common sense at home…..)

See 5 things you should know about camping green

What do you think? Leave a comment.

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Ways to console someone who is grieving.

Posted: June 1, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Great Article points to 11 things you can do to help.

This article here is a combination of the article I’m referencing and my personal experience, which mirrors the ideas in the article.

This is a great article. It may not make sense to someone who has not dealt with the loss of a friend, but the ideas can work for anyone who is having a hard time.

1. Don’t be afraid to mention the deceased friend’s name. It may bring on an onslaught of tears, but you can’t think that by not saying the deceased name, they either no longer existed or will be forgotten any quicker.
2. Offer hope. The saying time heals all wounds is correct. You need to provide your friend with encouragement that things will get better.

3. Call on the phone. Picking up the phone and making phone calls not just the first day or week but for the next several weeks or months is important. Do not use phrases such as “its God’s will” or such, unless the grieving person mentions these ideologies first. Sympathy or empathy after everyone else has stopped calling is important.

4. Write a note. In these times of being green and saving paper holiday cards and letters are following the dinosaurs. However, a handwritten note to someone who is grieving can mean the world. It is something to re-read or hold on to when the phone calls have stopped.

5. Help out. Be specific, a general what do you need will receive a general nothing response. Specifically say, I’m going to clean up, or I’ll be back with groceries and then do it. Spending time and dealing with phone calls is immensely valuable. Having to repeat the bad news when you are grieving to everyone who calls is wearing.

6. Be sensitive to religious or cultural differences. We all grieve differently and many times religion comes back into a person’s life when they lose someone. Cultural, ethnic or family traditions may also play a role in how a person deals with grief. Be aware and never criticize these issues no matter your own opinion. They are valuable and provide an immense amount of support for someone who is grieving.

7. Schedule activities or make a date. Low impact low stress activities are great for moving forward. Set up specific times and goals and do them with your friend. Going for a walk or watching a movie forces someone out of their cocoon and back into the real world. Again be sensitive but being there and doing something has great value.

8. Listen don’t advise. Listen, talking is a great way to deal with the stress of a loved one who dies. Being a good friend who can listen and be comforting is invaluable. At the same time, do not offer advice. No matter what your personal situation, it is not identical to your friends. I always tell people who have lost a spouse not to make any major decisions for one year. Decisions made based on grief, immediate financial concerns or a feeling of isolation or loss are never the right ones. Give grief time.

9. Don’t be afraid to express your own feelings. There is nothing wrong in sharing your feelings about your loss also. Even saying “I don’t know what to say” is good. You need the release as much as your friend. Sharing your emotions will help. Just remember you are there to support your friend or acquaintance, not to become the one needing support.

10. Deal with the anger. Many times the loss of a loved one triggers anger or resentment. If you are the subject of that do not fight back or respond negatively. More often than not, it is an emotion, not truly an issue. Waiting for the anger to subside and dealing with it gently or later can be effective for both of you.

11. Keep your promises. Do not abandon the person. If you say you are going to do something, do it. If you say you are going to be there, be there early. Nothing is worse than feeling abandoned due to the death of a loved one and then feeling the same with your friends. Being there can mean the world to someone who is left floating in an emotional void with no idea where to go or how to get there. Make sure you do not add to the void.

The 11 ideas in the article are great. They focus on being there for the person. Listen, help and don’t just provide lip service. We will all need this from our friends at some time.

These tips can be used by anyone at any time. Effectively dealing with several of these ideas can allow a trip which has suffered a fatality to compose itself, deal with the situation and move on with the problems at hand.

See 11 ways to comfort someone who’s grieving

What do you think? Leave a comment.

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Washington University figured out what most of us know. Adventure tourism boosts the economy.

Posted: May 31, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Study shows that adventure tourism is a rapidly growing market and a way for countries to grow tourism.

From the article, it appears that the tourism market thought adventure tourism was a small niche market. From my perspective over-crowding is becoming a major issue. In 2009 adventure tourists spent 89 billion having a good time. Another 53 billion was spent on gear purchases.

The study also found no new infrastructure is needed for adventure tourism. (Duh! OK, let’s go plant a jungle there and build mountains there to get people to come see us.)

One new factor is adventure tourists want sustainable and ecologically responsible adventure.

See Adventure tourism key to boosting economies

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2011 James H. Moss
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NPS Teacher to Ranger to Teacher Program

Posted: May 27, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

What a fantastic opportunity!

The link below is for our summer teacher opportunities available through our Teacher to Ranger to Teacher positions available at the Intermountain Regional Office this summer. This program is for teachers looking to develop place based curricula using our parks (in the 8 states of WY, MT, CO, UT, NM, AZ, OK, TX) and will be Colorado standards-based. The positions have minimal pay for 8 weeks of service but we are somewhat flexible on this and flexible on their schedules as well. The teachers are encouraged to then implement the curricula into their classes throughout the year (or for other teachers if they don’t wish or can’t implement themselves). The teachers are hired as interpretive rangers with uniform for the National Park Service for the summer. We generally use this program to take teachers and get them into parks, serve as interpreters and then return to the classroom. However, for the 2 positions still open now they would alternatively be placed in our office in Denver (with possible travel to some parks) to develop curricula. They can contact me or my colleague Jason, listed below to get more information or to send resumes.

http://www.nps.gov/learn/trt/index.html

Alison Fullerton
Park Ranger – Interpretation,
Education & Youth Engagement
National Park Service
Intermountain Region
Tel: (303) 969 – 2322
Fax: (303) 969 – 2063

Get paid to work in one of our Parks! Apply Now!

What do you think? Leave a comment.

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Recall: SCORPIO Via Ferrata Lanyards

Posted: May 27, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Concerns all SCORPIO lanyards Manufactured before May 17th 2011 up to serial number 11137****.

The relevant product references are: L60, L60 CK, L60 2, L60 2CK, L60 H, L60 WL, K29VF 1, K29VF 2, K29VE 1, K29VE 2, K29V 1, K29V 2.

If you possess a SCORPIO via ferrata lanyard as detailed above we ask you to:

immediately stop using it!
contact Petzl America:
– by telephone: 801 926 1541,
– or by email: inspection.scorpio@petzl.com.

For more information on this Recall please see the Petzl website: http://rec-law.us/kAFkyZ
The via ferrata lanyards ZYPER and ZYPER VERTIGO are not concerned by this alert for inspection.

You may continue to use these products, whilst respecting the conditions of use, maintenance and inspection outlined in their respective technical notices.

What do you think? Leave a comment.

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Authors are responsible for accidents.

Posted: May 24, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

The intelligence behind this proposed law matches the intelligence behind several of the laws in Hawaii.

If you need money, go to Hawaii and get hurt. California we always thought made it easy to sue. However, Hawaii has far surpassed any attempt by CA to reign as king of litigation.

In Hawaii a bill was passed to stop litigation for recreation business that only took away the defenses the recreation businesses had and made suing them easier.

In Hawaii the state is liable for anything that happens on their parks, which usually means something stupid or inane by tourists.

In Hawaii the National Park Service is dragged into writing big checks because stay law requires it.
So in an effort to curb injuries, and probably pay outs, a law is being proposed in Hawaii that would make authors of guide books liable for injuries of people to who took the authors’ advice.

Can’t you see the next Hawaiian guidebook? The top ten padded rooms to see while visiting Hawaii.
See Guidebooks to Risky Attractions Stir Up Trouble in Paradise

Eventually, a lot of people will spend money, and lawyers will get rich proving that the First Amendment works in Hawaii. It did not get lost traveling over the Pacific Ocean. It will take time and legislators will pat themselves on the back and say they have done something to make Hawaii safer.

Do Something

1. Send a letter to the Governor of Hawaii and remind the governor that there is a first amendment, and it does work in Hawaii.
2. Tell the Governor if they want to quit writing checks they need to pass a law that says if you are stupid you can’t collect money.
3. Tell the Governor to pass a law that says a release is a valid contract that Hawaiian business should be allowed to use.
4. Tell the Governor to veto any bill holding authors liable for the acts of others.

What do you think? Leave a comment.

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Scott v. Altoona Bicycle Club, d/b/a the Tour de-Toona, 2010 Pa. Commw. Unpub. LEXIS 513

Posted: May 23, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Scott v. Altoona Bicycle Club, d/b/a the Tour de-Toona, 2010 Pa. Commw. Unpub. LEXIS 513
Sarah Scott, an adult individual, Appellant v. Altoona Bicycle Club, d/b/a the Tour de-Toona, a Pennsylvania corporation, EADS Group, a Pennsylvania corporation, (dismissed) Lawrence J. Bilotto, an adult individual, USA Cycling, Inc., d/b/a United States Cycling Federation, a Colorado corporation, the Department of Transportation, Commonwealth of Pennsylvania, an executive agency of the Commonwealth of Pennsylvania, Huston Township, a Pennsylvania municipality
No. 1426 C.D. 2009
COMMONWEALTH COURT OF PENNSYLVANIA
2010 Pa. Commw. Unpub. LEXIS 513
June 21, 2010, Argued
July 16, 2010, Decided
July 16, 2010, Filed
NOTICE: OPINION NOT REPORTED
JUDGES: [*1] BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
OPINION BY: JOHNNY J. BUTLER
OPINION
MEMORANDUM OPINION BY JUDGE BUTLER
Sarah Scott (Scott) appeals from the June 24, 2009 order of the Court of Common Pleas of Blair County (trial court) granting summary judgment in favor of Altoona Bicycle Club, Inc. d/b/a the Tour de ‘Toona, ¹ a Pennsylvania corporation (ABC); Lawrence J. Bilotto, an adult individual (Bilotto); USA Cycling, Inc. d/b/a United States Cycling Federation, a Colorado corporation (USAC); the Commonwealth of Pennsylvania, Department of Transportation, an executive agency of the Commonwealth of Pennsylvania (DOT); and, Huston Township, a Pennsylvania municipality (Huston Township) (collectively, Appellees). The issues in this case are: (1) whether Appellees are entitled to judgment as a matter of law on the basis of the subject releases; (2) whether Appellees are entitled to judgment as a matter of law on the basis of express assumption of risk; and (3) whether the trial court erred in holding that Scott failed to adduce sufficient evidence of recklessness or gross negligence. For the reasons that follow, we affirm the trial [*2] court’s decision.
1 Although the caption refers to the event as Tour de- Toona, the actual title of the event is Tour de ‘Toona.
On July 29, 2005, after executing two releases, Scott participated in the 19.2 mile Martinsburg Circuit of the seven-day 2005 International Tour de ‘Toona bicycle race. The race was organized and promoted by the ABC, which received permits for the event from the USAC, the national governing body for competitive cycling that sanctioned the race, and DOT. Bilotto, DOT engineer and 2005 Tour de ‘Toona race director, applied for and evaluated ABC’s permit for the race. At some point during the race, the riders were required to descend Sportsman Road and make a 90 [degree] left turn where it intersects State Route 866 (SR 866) at a “T.” Huston Township owns and maintains Sportsman Road, and maintained State Route 866 through an agreement with DOT. During the race, Scott braked as she descended Sportsman Road and, as she entered the intersection, she rode wide toward the right edge of Sportsman Road, went into the grass off the berm and fell down a 30-inch drop-off on the right side of SR 866. As a result of this accident, she suffered multiple injuries which left [*3] her a paraplegic.
On September 12, 2006, Scott filed a complaint against Appellees seeking damages for her accident. She filed an amended complaint on March 15, 2007 asserting claims against ABC, USAC, and Bilotto for negligence, gross negligence and recklessness; against DOT and Huston Township for negligence and gross negligence; and against ABC and USAC for misrepresentation, failure to disclose and fraudulent inducement. Appellees denied liability and asserted in new matter, defenses of release, assumption of risk and immunity. Following extensive discovery, Appellees filed a motion for summary judgment on the basis of Scott’s waiver and assumption of risk, and immunity as to DOT and Huston Township The motion for summary judgment was granted by the trial court by order dated June 24, 2009, on the basis that Scott released the parties from liability, and that she voluntarily assumed the risk of her injuries. Scott appealed to this Court. ²
2 “The scope of this Court’s review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion.” Kaplan v. Southeastern Pennsylvania Transp. Auth., 688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997). [*4] “Summary judgment is appropriate only when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608, 613 (Pa. Cmwlth. 2006). The appellate standard of review is de novo when a reviewing court considers questions of law. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899 (2007). In reviewing questions of law, the scope of review is plenary, as the reviewing court may examine the entire contents of the record. Id.
Whether Appellees Are Entitled to Judgment On The Basis Of The Releases:
Scott argues that the trial court erred in holding that Scott’s claims are within the scope of the releases as a matter of law since they are exculpatory and invalid and unenforceable, and Appellees were in a better position to prevent her harm. She avers that immunity for Appellees cannot be granted based upon general language in a release, nor can liability for recklessness and gross negligence be released. Finally, she claims that there are genuine issues of material fact which prevent judgment as a matter [*5] of law. We disagree.
It is undisputed that, on March 3, 2005, in order to obtain a license from USAC to participate in USAC-sanctioned events in 2005, Scott completed an online application. As part of the application process, Scott was required to read and agree to an “Acknowledgement of Risk, Release of Liability, Indemnification Agreement and Covenant Not To Sue” (Membership Release). The Membership Release provided, in pertinent part:
I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY USA CYCLING, INC. (USAC), ITS ASSOCIATIONS . . . AND THEIR RESPECTIVE AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY “RELEASES”), AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS DOCUMENT IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING.
In consideration of the issuance of a license to me by one or more of Releasees and being allowed to participate in a cycling event permitted or sanctioned by USA Cycling, . . . I hereby freely agree to and make the following contractual [*6] representations and agreements. I acknowledge that cycling is an inherently dangerous sport and fully realized the dangers of participating in a bicycle race, whether as a rider, coach, mechanic or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the dangers of collision with . . . fixed or moving objects; the dangers arising from surface hazards, including pot holes . . . THE RELEASEES’ OWN NEGLIGENCE, the negligence of others . . . ; and the possibility of serious physical and/or mental trauma or injury, or death associated with cycling competition. . . . I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers, promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with a USA Cycling event, and their respective agents, officials, and employees through or by which the event will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, [*7] which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with a USA Cycling event, in which I may participate as a rider . . . . I agree it is my sole responsibility to be familiar with the course of a USA Cycling event, the Releasees’ rules, and any special regulations for a USA Cycling event and agree to comply with all such rules and regulations . . . . I understand and agree that situations may arise during a USA Cycling event which may be beyond the control of Releasees, and I must continually ride and otherwise participate so as to neither endanger myself nor others. I accept responsibility for . . . my conduct in connection with a USA Cycling event. . . .
I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my Successors assert a claim contrary to what I have agree to in this contract, the claiming party shall be liable for all expenses (including legal fees) incurred by Releasees in defending the claims
. . . .
Reproduced Record (R.R.) at 342a-343a [*8] (emphasis in original).
Thereafter, on July 28, 2005, specifically in order to participate in the Tour de ‘Toona, Scott skimmed then executed a “2005 USA Cycling, Inc. Standard Athlete’s Entry Blank and Release Form” (Event Release). R.R. 346a, 1369a. The Event Release provided, in pertinent part:
I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY USA CYCLING, INC. (USAC), ITS ASSOCIATIONS . . . AND THEIR RESPECTIVE AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY “RELEASEES”), AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS ENTRY BLANK AND RELEASE IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING.
In consideration of the issuance of a license to me by one or more of Releasees or the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractual representations and agreements. I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN A BICYCLE RACE, [*9] whether as a rider, coach, mechanic or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the dangers of collision with . . . fixed or moving objects; the dangers arising from surface hazards, including pot holes . . . THE RELEASEES’ OWN NEGLIGENCE, the negligence of others . . . ; and the possibility of serious physical and/or mental trauma or injury, or death associated with cycling competition. . . . I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers and promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with this event, and their respective agents, officials, and employees through or by which the events will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out [*10] of, my participation in or association with the event . . . I agree it is my sole responsibility to be familiar with the race course, the Releasees’ rules, and any special regulations for the event and agree to comply with all such rules and regulations. I understand and agree that situations may arise during the event which may be beyond the control of the Releasees, and I must continually ride and otherwise participate so as to neither endanger myself nor others. I accept responsibility for . . . my conduct in connection with a USA Cycling event. . . .
I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert a claim contrary to what I have agreed to in this contract, the claiming party shall be liable for the expenses (including legal fees) incurred by the releasees in defending the claims. . . .
R.R. at 346a (emphasis in original). Scott argues that these exculpatory releases are invalid and unenforceable as against public policy and, therefore, her claims should be allowed to proceed. ³
3 According to Black’s Law Dictionary 648 (9th ed. 2009), an exculpatory clause is a “provision [*11] relieving a party from liability resulting from a negligent or wrongful act.”
In order for an exculpatory clause in a release to be valid, “(1) the clause must not contravene public policy, (2) the contract must be between persons relating entirely to their own private affairs and (3) each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233, 1238 (Pa. Cmwlth. 2009). Scott does not dispute the trial court’s conclusion that the subject releases meet the third requirement, i.e., they are not contracts of adhesion. Thus this Court need only determine whether the subject releases are contracts between persons relating to their private affairs and/or whether they contravene public policy.
The Pennsylvania Superior Court has held, “[c]ontracts against liability, although not favored by courts, violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. 1990). [*12] Scott argues that the releases involved matters of interest to the public, since: ABC touted the Tour de ‘Toona as a “community-owned” event, in “partnership” with state and municipal governments; the race altered traffic patterns on public roads regulated by DOT and Huston Township, thereby affecting motorists; it invited members of the public to participate, to watch, and to volunteer; and, it was overseen by police and fire departments. Scott also argues that DOT’s permit “embodies” the state’s public policy to ensure that the roads were safe for the event, thus, the public had an interest in the event being conducted safely. However, there is no case law found by the trial court or this Court to support Scott’s contention that merely because the Tour de ‘Toona may have provided an ancillary benefit to the local community and used public resources, the exculpatory clauses in the releases were void as against public policy. Instead, courts in the Commonwealth have upheld releases similar to the one executed by Scott as not against public policy. See Vinikoor; Seaton; Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492 (Pa. Super. 1985). Specifically, in Vinikoor, this Court held that, [*13] “[t]here is a valid public policy to preclude recovery against self-inflicted injuries through known risks.” Vinikoor, 974 A.2d at 1240. Thus, the trial court did not err in finding that the subject releases do not contravene public policy.
In addition, the trial court properly held that the subject releases “are private agreements between an individual . . . and various entities,” and do not involve agreements between persons and their employers required as a condition of employment, or a public service, a public utility, a common carrier or a hospital or healthcare provider. Scott v. Altoona Bicycle Club, et al. (No. 2006 GN 4730, filed June 25, 2009), slip op. at 17. Scott was under no obligation to either apply for a license from the USAC or to register to compete in the Tour de ‘Toona. No case law was cited by Scott addressing whether releases like those at issue here are considered anything other than private agreements between private parties. Thus, the trial court did not err in finding that the subject releases involved private parties and their private affairs. Accordingly, because the subject releases do not contravene public policy, are between persons relating to their [*14] private affairs, and are not contracts of adhesion, they are valid.
Notwithstanding the above, “[e]ven if an exculpatory clause is determined to be valid, however, it will 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.” Vinikoor, 974 A.2d at 1238. In order to determine whether an exculpatory release is enforceable:
1) the contract 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 case 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.
Id. (citing Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 471, 626 A.2d 98, 99 (1993)). “Under Pennsylvania law, written releases are interpreted in accordance with the rules of contract construction. . . . In determining the parties’ intent, [*15] a court must first look to the language of the release.” A.G. Cullen Constr., Inc. v. State Sys. of Higher Educ., 898 A.2d 1145, 1167 (Pa. Cmwlth. 2006) (citations omitted).
In this case, the Membership Release, which Scott reviewed and agreed to online, in its very title, indicates the clear intention that she must release from liability, indemnify and agree not to sue the parties designated therein. In the bodies of both releases Scott acknowledged she was “giving up substantial legal rights,” and she expressly agreed to “release from liability” “from any and all rights and claims,” and “not to sue” for “damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with a USA Cycling event,” or the Tour de ‘Toona. R.R. at 342a, 346a, 1369a. It is also clear that Appellees are specifically covered by the releases — USAC by name; ABC as sponsor, organizer and/or promoting organization; Bilotto as agent, official or employee of ABC; and, DOT and Huston Township, as property owners, law enforcement agencies, public entities, or special districts and properties that are in any manner connected with the event.
The language [*16] in these releases clearly and unambiguously reflects Appellees’ intention to be released by Scott from all liability, even for Appellees’ negligence, for injuries she may suffer during a USAC event generally, and the Tour de ‘Toona specifically. “Where . . . the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). In addition, in the absence of fraud or a confidential relationship, the fact that Scott may have “skimmed” or “somewhat” read the subject releases, does not make them any less enforceable. Seaton; Standard Venetian Blind Co. Finally, in Vinikoor, this Court upheld as enforceable a substantially similar exculpatory release in favor of Pedal Pennsylvania, Inc. where Vinikoor read, understood and signed the agreement. ⁴
4 While the release in Vinikoor specifically stated that it was a “complete waiver,” the fact that that phrase does not appear in the releases executed by Scott does not render this Court’s reasoning in Vinikoor inapplicable here.
Scott argues that the Supreme Court, in Employers Liability Assurance Corporation v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966), [*17] prohibits the grant of immunity based upon general language in a release, and the trial court herein violated that rule by holding that the general language, “from any and all rights and claims including claims arising from the releases’ own negligence,” included a waiver of gross negligence and recklessness despite the fact that neither word appears anywhere in the form. Scott Br. at 57. Scott argues that such language can “reasonably be interpreted to release only claims that arise from negligence and no more,” since “[t]here is no comma after ‘claims’ nor is there any ‘without limitation’ language as appears earlier.” Scott Br. at 57. Scott attempts to go beyond the plain meaning of the subject releases to support her position.
As properly noted by Appellees, the Pennsylvania courts have upheld as enforceable agreements containing the “any and all” language. See Rep. Ins. Co. v. Paul Davis Sys. of Pittsburgh S., Inc., 543 Pa. 186, 670 A.2d 614 (1995) (general release applicable to “all other persons” from “any and all other actions” of “whatsoever kind or nature” barred subsequent action by an insurer against a contractor); Buttermore v. Aliquippa Hosp., 522 Pa. 325, 561 A.2d 733 (1989) [*18] (“any and all other persons, associations and/or corporations, whether known or unknown” language in a general settlement release barred a subsequent claim against the hospital, despite the fact that it was not named in the release, nor contributed consideration toward settlement). In Vinikoor, where the release stated that Pedal Pennsylvania, Inc. was released “from all liability as a result of my participation in Pedal Pennsylvania, whether caused by negligence or otherwise,” was sufficient for this Court to find that Vinikoor, without qualification, waived his right to sue Pedal Pennsylvania, Inc. for injuries suffered as a result of his participation in a bicycle tour. Vinikoor, 974 A.2d at 1237.
In order to glean the parties’ intent, “[t]he language [of a release] must be viewed in the context of the entire document. Each part of a release must be given effect. . . . [T]erms in one section should not be interpreted to nullify or conflict with other terms.” A.G. Cullen Constr., Inc., 898 A.2d at 1167-68 (citations omitted). The subject releases read in their entirety cannot, as Scott argues, “reasonably be interpreted to release only claims that arise from negligence and no more.” [*19] Scott Br. at 57. In Zimmer v. Mitchell & Ness, 253 Pa. Super. 474, 385 A.2d 437 (Pa. Super. 1978), the Superior Court held that, “[a]lthough we must construe the contract strictly, we must also use common sense in interpreting this agreement. The mere fact that the word ‘negligence’ does not appear in the agreement is not fatal to appellee’s position.” Id., 385 A.2d at 439.
Supporting the aforementioned argument as to gross negligence is the Pennsylvania Supreme Court’s declaration that “there are no degrees of negligence in Pennsylvania” common law, only differing standards of care in certain circumstances. Ferrick Excavating & Grading Co. v. Senger Trucking Co., 506 Pa. 181, 191, 484 A.2d 744, 749 (1984) (describing differing standards of care applicable in bailment cases). Thus, since the releases specifically mention “negligence,” gross negligence is, by implication, included. This position is supported by the Pennsylvania Superior Court’s decision in Valeo, in which it affirmed the trial court’s grant of summary judgment in favor of a race car track where a race car driver executed a release “from all liability . . . whether caused by negligence of Releasees or otherwise,” on the basis that:
where [*20] the intention of the parties is spelled out with particularity and their agreement shows an unequivocally expressed purpose to release from liability, the law will give effect to that agreement. . . . The effect of the release was not avoided by an averred conclusion in the complaint that the negligent maintenance of the track amounted to gross negligence. The language of the exculpatory clause was broad enough to exclude liability for all degrees of negligence.
Valeo, 500 A.2d at 493 (emphasis added). We recognize that, in Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695 (Pa. Super. 2000), the Pennsylvania Superior Court held:
Since gross negligence is clearly more egregious than ordinary negligence, the rule of strict construction is even more appropriate in the case of indemnity for accidents caused by one’s gross negligence. In other words, this Court will not read the term ‘gross negligence’ into an indemnity provision in which it is not specifically manifested. If it had been the intention of the parties to cover liability for gross negligence, it requires no extraordinary skill in draftsmanship to so bind a contractor in words and phrases of absolute certainty as to require [*21] him to indemnify the owner for its gross negligence.
Id., 758 A.2d at 705. However, Ratti is distinguishable from this case in that Ratti concerned an indemnification agreement rather than an exculpatory release. Thus, based upon Zimmer and Valeo, this Court holds that gross negligence need not have been specifically mentioned in the subject releases in order for Appellees to be protected from Scott’s claims. ⁵ To support her claim that the subject releases do not waive Scott’s claims for recklessness against ABC, Bilotto and USAC, ⁶ Scott cites the Pennsylvania Superior Court’s decision in Tayar v. Camelback Ski Corp., Inc., 2008 PA Super 204, 957 A.2d 281 (Pa. Super. 2008), for the proposition that recklessness cannot be waived in an exculpatory contract by words of general import such as “any and all liability.” In Tayar, a snowtubing patron brought an action against Camelback Ski Corporation (Camelback) for injuries sustained in a collision when a Camelback employee permitted the patron to descend the slope before her path was clear. The trial court granted summary judgment in favor of Camelback and its employee on the basis of a release of liability executed by the patron. The Superior Court reversed. [*22] Scott claims that, in doing so, the Superior Court expressly rejected the notion that recklessness is waived in an exculpatory contract by words of general import. However, that case is clearly distinguishable from the present case. In Tayar, the focus was on the fact that Camelback “consciously marketed a service that purported to eliminate a known and typical risk of a recreational activity,” and the issue of whether Camelback’s employee’s actions were waived by the release. Id., 957 A.2d at 293. Ultimately, the Superior Court remanded the case, since there was insufficient evidence of record to determine if the defendants’ conduct was reckless or intentional and whether that was the cause of the patron’s injuries. Thus, Tayar has no bearing on the outcome of this case.
5 Scott’s amended complaint asserts claims against DOT and Huston Twp. for negligence and gross negligence since they own, operate, maintain and control the intersection at which Scott was injured. The issue of sovereign or governmental immunity afforded DOT and Huston Twp. was raised in Appellees’ motion for summary judgment, but was not addressed in the trial court’s opinion. Since it is clear that the subject releases [*23] relieve all Appellees, including DOT and Huston Twp., of liability for negligence and gross negligence, we do not address the issue of any sovereign or governmental immunity to which they may be entitled.
6 Scott has not asserted a claim for recklessness against either DOT or Huston Twp.
Based upon the foregoing, we hold that claims for gross negligence and recklessness need not have been specifically mentioned in the subject releases in order for Appellees to have been protected in this case. Since, in strictly construing the subject releases as against Appellees, this Court finds that the intention of the parties is stated with particularity therein, Appellees have met their burden of establishing that they are released from Scott’s claims. Moreover, since the exculpatory clauses in the releases have met the necessary requirements, they are valid and enforceable. ⁷
7 Our holding on this issue is in accordance with the Pennsylvania Supreme Court’s decision in Chepkevich v. Hidden Valley Resort, L.P., Pa. , A.2d , 2 A.3d 1174, 2010 Pa. LEXIS 1311 (No. 22 WAP 2007, filed June 21, 2010), which was decided after the instant case was briefed, and on the same day that it was argued before this Court. The Supreme [*24] Court declared, inter alia, that exculpatory releases for voluntary participation in non-essential recreational activities are not contracts of adhesion and, that the fact that such releases may not specifically define or illustrate the specific actions from which the released parties are immune does not render them invalid or unenforceable.
Finally, examining the record in the light most favorable to Scott, there are no genuine issues as to the material facts upon which this Court relies to hold that Appellees are entitled to judgment in their favor as a matter of law on the basis of the subject releases. The facts cited herein for the Court’s holding are undisputed.
Whether Appellees Are Entitled To Judgment On The Basis Of Scott’s Assumption of Risk:
Next, Scott argues that her claims are not barred by her assumption of risk because the assumption of risk doctrine is disfavored in the law, because she did not knowingly proceed in the face of an obvious danger or an inherent risk of competitive cycling, and because the trial court ignored evidence that Scott did not assume the risk that ABC would not correct a course that was inherently dangerous. Moreover, Scott argues that there are [*25] genuine issues of material fact with respect to her alleged assumption of risk.
Scott avers that the assumption of risk doctrine is “disfavored in the law,” since it has been “supplanted by comparative negligence.” Scott Br. at 40. However, in Wallis v. Southeastern Pennsylvania Transportation Authority, 723 A.2d 267 (Pa. Cmwlth. 1999), this Court addressed the place of assumption of risk as a defense in Pennsylvania law as follows:
In Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993) (plurality opinion), the Pennsylvania Supreme Court abolished assumption of the risk as an affirmative defense to be decided by a jury; rather, to the extent that an assumption of the risk analysis applies in a given case, the court must apply it as part of its duty analysis. The doctrine is to be applied only in cases involving an express assumption of risk, in cases brought under a strict liability theory, and in cases in which the doctrine is preserved by statute. Id. In Duquesne Light v. Woodland Hills School District, 700 A.2d 1038 (Pa. Cmwlth. 1997). . . this Court adopted the rationale of Howell as controlling precedent.
Id., 723 A.2d at 269-70 (footnote omitted). This Court, in Vinikoor, restated [*26] its position that assumption of risk is still viable for courts to consider in the three limited circumstances noted in Wallis.
“Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff from harm if the plaintiff voluntarily faces a known and obvious risk and is therefore considered to have assumed liability for his own injuries.” Kevan v. Manesiotis, 728 A.2d 1006, 1009 (Pa. Cmwlth. 1999). This case does not involve a claim of strict liability or a statutory exception, but does involve what is presented as an express assumption of risk.
An express assumption of the risk is where the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for the plaintiff’s protection. Ordinarily such an agreement takes the form of a contract, which provides that the defendant is under no obligation to protect the plaintiff, and shall not be liable to him for the consequences of conduct which would otherwise be tortious.
Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1054 (Pa. Cmwlth. 1997) (citations and quotation marks omitted).
Both of the subject releases read and signed by Scott expressly state, [*27] “I AM ASSUMING RISKS,” and Scott expressly acknowledged:
I acknowledge that cycling is an inherently dangerous sport and fully realize the dangers of participating in a bicycle race . . . as a rider . . . and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the dangers of collision with . . . fixed or moving objects; the dangers arising from surface hazards . . . . THE RELEASEES’ OWN NEGLIGENCE, the negligence of others . . . and the possibility of serious physical . . . injury . . . associated with cycling competition.
R.R. at 342a, 346a. There is no doubt that, by signing the releases, Scott intended to assume any risks inherent in bicycle racing.
It is clear that Scott had experience with bicycle racing before the day of her accident. She testified that she had previously seen cyclists leave the road course. Prior to the Tour de ‘Toona, she understood that there are potential hazards on and off the racecourse. She has seen conditions off the road course that were not flat or even. She also acknowledged that it is easier to control a road bike on the paved road surface than off the paved road surface. She inspected the race [*28] course, including the intersection in question, before the day of the race. Finally, during the race, Scott deliberately steered her bicycle off the paved road and into the grass area where her accident occurred.
When a trial judge applies assumption of the risk as part of the duty analysis, the ‘court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with the awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury.’
Wallis, 723 A.2d at 270. In this case, as in Vinikoor, it is clear that Scott knew of the general risk of riding bicycles, she was aware of specific risks like the one she encountered in the Tour de ‘Toona (i.e., uneven surface off the road course), and she voluntarily signed the releases acknowledging her awareness that riding could result in serious physical injury and she, nevertheless, chose to participate in the event.
Scott argues that she could not assume the risk that ABC knew that the intersection was dangerous and did nothing about it, and/or misled her by promoting the Tour de ‘Toona as the best race in the country, and the “safest possible.” [*29] Scott Br. at 45. Whether that is true, in Vinikoor, this Court held that even if the race coordinator took specific action to make the course safe and provided warnings of hazards, such “activities do not preclude application of the voluntary assumption of the risk/no duty rule with respect to the risk of falling from a bicycle or encountering an irregular surface.” Id., 974 A.2d at 1241. We hold, therefore, that reasonable minds could not disagree that Scott deliberately and with awareness assumed the risk of injuries for which she now seeks damages from Appellees.
Finally, examining the record in the light most favorable to Scott, there are no genuine issues as to the material facts upon which this Court relies to hold that Appellees are entitled to judgment in their favor as a matter of law on the basis of express assumption of risk. The facts cited herein for the Court’s holding are undisputed.
Because Appellees are entitled to judgment in their favor on the basis of the exculpatory releases and Scott’s express assumption of risk, the decision of the trial court is affirmed. ⁸
8 Since this Court held that by executing the subject releases and/or assuming the risk of her injuries, [*30] Scott waived all claims against Appellees, including those for recklessness and gross negligence, there is no reason for this Court to address the final issue of whether Scott presented sufficient evidence of recklessness or gross negligence.
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 16th day of July, 2010, the June 24, 2009 order of the Court of Common Pleas of Blair County is affirmed.
JOHNNY J. BUTLER, Judge

Outdoor Retailer Annual Rugby Match is on.

Posted: May 20, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Its fun to watch little M running around yelling!

The annual Outdoor Retailer ruby match is getting set up. This will be year three of the annual event where you can take out your SLC or OR frustration on fellow frustrated attendees! J

The Hookers & Grubbers are already starting the trash talking which is incomprehensible to most of you, unless rugby was a staple in your college diet.

If you want to play, “admission” is easy and cheap: As a visit Scrumbot.com, and purchase a kit (jersey, shorts, socks), and show up dressed to the 8’s (not quite the 9’s).

Personal observation, bring beer also! You’ll play more…..or less…..

The game is scheduled for 7 p.m. on Aug. 5, the second day of Outdoor Retailer Summer Market 2011.
Note to spectators, if you have a week stomach, bring a blindfold or a big book, these gals and guys play hard and then run to the spectators to blow chunks. From watching two of these games, I’ve decided it is part of the game. I’m not sure how you get points for it, but as much of it that occurs it has to be worth something.
For more information watch SNEWS. To learn about past games (antics) see Hookers & Grubbers mix it up again at ORSM…come tired, leave sexy

What do you think? Leave a comment.

Comments are moderated Michael!

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Athlete Contracts; as a manufacture do you need one?

Posted: May 18, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

You have a great product, and you want to get it out into the hands of some athletes. The athletes have been friends for years, and you’re not worried about them. Do you really need to have them sign a contract just to get free gear? Yes.

Real athletes, those people who are at the top of their game, that make their living showing your product to the world? Definitely Yes.

If you are just giving gear to an athlete and are not expecting anything in return except maybe some feedback, hand out the gear. You will probably ask them to post their experiences on social media so make sure you tell them about the FTC rules on the proper hashtags. See Are you complying with the current FTC rules when you ask someone to tag you on a social network?

If you expect your gear to be on a podium or in photographs with wining athletes you need agreements with those athletes. If you are requiring feedback or exposure you need to make sure everyone understands the terms of the agreement. Everyone means the Internal Revenue Service, the athlete’s health and disability insurance company and any worker’s compensation insurance company, as well as the athlete.

Normally, these contracts specify how the athlete gets the gear and/or money for their work. The agreement may also cover when they will be paid more for wining or exposure This means your logo must be visible, not just on a blur in the background.

There are also several situations that you need in an agreement to protect yourself.

First you need to make sure the athlete knows they are responsible for any state, local or federal taxes due on the money or product you provide. Yes product. If the athlete is accepting product in excess of what is needed to do the job, there may be taxes due. If the taxes are not paid, the tax authority will go to the entity that did not withhold the appropriate taxes from the person who did not pay. That means you. Unless you can prove that the person was an independent contractor and was liable for their own taxes you may write a check. An agreement that sets forth those requirements is a good defense to any tax person knocking on your door.

Second is the athlete’s insurance company. I’ve commented several times that many of the current lawsuits are probably subrogation claims by insurance companies. See Canadian government suing Blackcomb Mountain for the health care costs of an injured snowboarder. A subrogation clause is found in every insurance contract. The subrogation clause allows the insurance company to sue, in the name of the insured, the person or persons that caused the injuries to the insurance company’s client. Meaning the lawsuit will be Your Athlete against You. Even though the athlete may not want to sue you.

If the insurance company paid for a claim for you, that gives them the right, contractually to make you sue your best friend.

In this case, the insurance company may claim one of two things: (1) the athlete was working for you and therefore, is it is a worker’s compensation claim which they are not liable for; or (2) because you gave the injured athlete the equipment that “failed” you are liable. Again your agreement needs to make sure that everyone (meaning the athlete, his or her family and their insurance companies) knows the athlete was not an employee, and your agreement should contain a release.

You don’t have to inform everyone immediately, just when the lawsuit arises that you can’t be sued.

The biggest threat is any worker’s compensation insurance carrier. If someone reports on any insurance form that the athlete was working at the time of his injury or if the injured athlete is attempting to get more money by claiming a worker’s compensation injury, the worker’s compensation insurer will look for someone to reimburse them.

One clause that I put in all athlete contracts is a release. I want the athlete and their insurance carriers to know that the athlete can’t sue the manufacture. A release signed by the athlete is effective as a defense against the insurance company with a subrogation claim.

Here again three reasons why having proper paperwork will eliminate problems. However, there are other reasons to have a contract. It will make it easy for you and the athlete to know how much money is being paid for different photo placements or copy in magazines. It lets everyone know what the athlete can and cannot do. It allows you to dodge the issues if the athlete shows up on the cover of high times rather than the podium.

Get a contract, it will make everyone know where they are going and why, as well as keep you and your company out of a litigation nightmare.

For additional articles on this subject see: Do you have contracts with all of your athletes? Manufactures who provide more than swag to athletes maybe sued without a written agreement and Athlete Contracts; as a manufacture do you need one?

What do you think? Leave a comment.

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NEW American Alpine Club Benefit Package

Posted: May 17, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

New and Expanded Member Benefits from the American Alpine Club
When the Club asked members and climbers what they wanted most from the AAC, tangible membership benefits topped the list, so we have been hard at work negotiating new and better benefits for you. Check out the list below for all the benefits your membership dollars provide as of May 2011.

Saturday is International Migratory Bird Day

Posted: May 13, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

We are losing birds too fast.

When I was young I remember thinking that the birds made a lot of racket. Now days, I stop to listen when I hear a bird because their sounds are so few.
Tell everyone to celebrate International Migratory Bird Day

What do you think? Leave a comment.

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Galloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109

Posted: May 10, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

To Read an Analysis of this decision see

Iowa does not allow a parent to sign away a minor’s right to sue.

Galloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109

Taneia Galloway, Appellant, vs. State of Iowa, Appellee.

No. 08-0776

SUPREME COURT OF IOWA

790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109

November 5, 2010, Filed

PRIOR HISTORY: [**1]

Appeal from the Iowa District Court for Black Hawk County, George Stigler, Judge. The plaintiff appeals from a summary judgment ruling enforcing a parent’s preinjury releases of her minor child’s personal injury claim.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant Attorney General, for appellee.

JUDGES: HECHT, Justice. All justices concur except, Cady, J., and Ternus, C.J., who dissent.

OPINION BY: HECHT

OPINION

[*253] HECHT, Justice.

A parent signed release forms waiving her minor child’s personal injury claims as a condition of the child’s participation in an educational field trip. This action was filed against the State after the child was injured during the trip. The district court granted the State’s motion for summary judgment, concluding the releases signed by the parent resulted in an enforceable waiver of the child’s personal injury claim. On appeal from the summary judgment ruling, we conclude the releases violate public policy and are therefore unenforceable.

I. Background Facts and Proceedings.

In July of 2005, fourteen-year-old Taneia Galloway attended a field trip to Milwaukee, Wisconsin, with Upward [**2] Bound, a youth outreach program organized by the University of Northern Iowa and the State of Iowa. On the field trip, Galloway was injured when she was struck by a car as she attempted to cross the street.

Before Galloway went on the field trip, her mother signed two documents entitled “Field Trip Permission Form” and “Release and Medical Authorization.” The first document read:

Classic Upward Bound Summer Residential Program Field Trip Permission Form

Dear Parent(s)/Guardian(s):

Each summer the participants of the Classic Upward Bound Program attend field trips locally and out-of-town. This form must be completed in order for your son/daughter to participate in said events.

As the parent/guardian of Taneia Galloway, I hereby give my permission for him/her to participate in ALL field trips sponsored by the University of Northern Iowa Classic Upward Bound Program during the Summer Residential and the Academic Year Program. Taneia Galloway understands he/she is to follow all rules of the Classic Upward Bound Program while participating in these field trips.

Furthermore, I will not hold the University of Northern Iowa or any of its employees or agents responsible for any accidents, losses, [**3] damages or injuries resulting from the son/daughter’s participation in any or all the field trips. I also release the Classic Upward Bound Program, the University of Northern Iowa, and its employees and agents from all liabilities.

If the student is living with both parents/guardians, both parents/ guardians must sign this form.

Galloway’s mother signed and dated the form on June 13, 2005. She also signed another form which read as follows.

RELEASE AND MEDICAL AUTHORIZATION

University of Northern Iowa Classic Upward Bound — Dates: June 1, 2005 — May 30, 2006

Read Carefully —

This document is a release and authorizes medical treatment.

Please return all copies of this form to the program staff. Registration is not considered complete until this completed form is filed with the University of Northern Iowa Classic Upward Bound Program.

The student will not be allowed to participate in the Classic Upward Bound Program if this information if not provided. This information is not routinely [*254] provided to individuals or organizations outside the University, except as provided by law.

In consideration of the University of Northern Iowa granting the student permission to participate in the Classic Upward [**4] Bound Program, I hereby assume all risks of her/his injury (including death) that may result from any program activity. As parent/guardian I do hereby release and agree to indemnify, defend and hold harmless the University of Northern Iowa, State Board of Regents, State of Iowa, Classic Upward Bound and its officers, employees, agents and all participants in the program from and against all liability including claims and suits of law or in equity for injury (fatal or otherwise) which may result from any negligence and/or the student taking part in program activities.

I certify that within the past year the student has had a physical examination and that she/he is physically able to participate in all Upward Bound activities.

In the event of injury or illness, I hereby give my consent for medical treatment, and permission to program staff for supervising and performing, as deemed necessary by staff, on-site first aid for minor injuries, and for a licensed physician to hospitalize and secure proper treatment (including injections, anesthesia, surgery, or other reasonable and necessary procedures) for the student. I agree to assume all cost related to any such treatment. I also authorize [**5] the disclosure of medical information to my insurance company for the purpose of this claim. I understand each student must provide her/his own medical insurance.

I understand that I am responsible for any medical or other charges related to the student’s attendance at the University of Northern Iowa Classic Upward Bound Program.

Galloway, through her mother as next friend, ¹ filed suit against various parties, including the State of Iowa. The State moved for summary judgment, contending the releases signed by Galloway’s mother waived any claims against it for negligence. The district court concluded the releases constituted a valid waiver of Galloway’s claims and granted summary judgment. Galloway appeals. ²

1 Taneia Galloway has since reached the age of majority and has been substituted as plaintiff.

2 The district court denied the summary judgment motions of the other defendants, but Galloway has since dismissed her claims against the remaining defendants.

II. Scope of Review.

[HN1] Our review is for correction of errors at law. Iowa R. App. P. 6.907. [HN2] When reviewing a grant of summary judgment we must determine if “the moving party has demonstrated the absence of any genuine issue of material [**6] fact and is entitled to judgment as a matter of law.” Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993). [HN3] “Summary judgment is proper if the only issue is the legal consequences flowing from undisputed facts.” Id. [HN4] Determining the legal effects of a contract is a matter of law to be resolved by the court. Id. at 55-56.

III. Discussion.

Galloway makes three arguments on appeal that we should conclude the releases signed by her mother are void and unenforceable. First, she asserts we should follow a majority of other state courts that have concluded it is against public policy [*255] for a parent to waive liability for a child’s injury before the injury occurs. In the alternative, she argues an application of the factors enunciated in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (Cal. 1963), demonstrates it is against public policy to enforce releases signed by a parent as a condition of the child’s participation in an educational activity. Her final contention is that these particular releases are insufficient to waive the State’s liability because the intent to waive liability is not clearly expressed.

Galloway’s primary argument is that public policy considerations should lead this [**7] court to conclude preinjury releases executed by parents as a condition of their children’s participation in educational activities are incompatible with public policy and therefore unenforceable. In particular, she contends public policy should preclude enforcement of releases executed by parents because parents are ill-equipped to assess in advance the nature of risks of injury faced by children while they are participating in activities at remote locations under the supervision of others and because parents are uninformed of the nature and extent of the gravity of the injuries to which their children may be exposed when the releases are executed.

The State, however, argues that public policy weighs in favor of enforcing preinjury releases signed by parents. The State contends that all of the arguments supporting the enforcement of preinjury releases executed by adults waiving liability for their own injuries apply with equal force to releases given by parents on behalf of their minor children. The State further contends the public policy of this state requires courts to give deference to parents’ child-rearing choices, including the choice to release third parties in advance for [**8] negligent injury to children.

We begin with an acknowledgment of the challenging nature of identifying which societal values are properly included within the purview of “public policy.” In our efforts to characterize the imprecise boundaries of the concept, we have made reference to the broad concepts of “public good,” In re Estate of Barnes, 256 Iowa 1043, 1051, 128 N.W.2d 188, 192 (1964), and “‘established interest[s] of society.'” Walker v. Am. Family Mut. Ins. Co., 340 N.W.2d 599, 601 (Iowa 1983) (quoting Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980)). However, despite the difficulty of characterizing the exact elements of the public interest, we have considered and weighed public policy concerns when deciding important legal issues. For example, such considerations were a critical aspect of our analysis when we abolished the doctrine of immunity for charitable institutions. Haynes v. Presbyterian Hosp. Ass’n, 241 Iowa 1269, 1274, 45 N.W.2d 151, 154 (1950) (weighing and ultimately rejecting public policy justifications for the immunity doctrine).

We have also confronted public policy considerations in the context of litigation between family members. Our understanding [**9] of the public interest prompted this court to exercise its authority to abrogate the doctrine of interspousal immunity. Shook v. Crabb, 281 N.W.2d 616, 620 (Iowa 1979) (relying on the fundamental public policy that courts should afford redress for civil wrongs and rejecting the proposition that the doctrine of interspousal immunity involved determinations of public policy most appropriately made by the legislature). We again carefully considered public policy factors in the family context when we abolished the doctrine of absolute parental immunity and recognized a remedy for children injured by the negligent acts of a parent. Turner v. Turner, 304 N.W.2d 786, 787-88 [*256] (Iowa 1981) (rejecting the argument that “domestic government” and “parental discipline and control” are matters of public policy justifying retention of parental immunity). In this case, we are called upon to decide whether public policy considerations should lead us to invalidate preinjury releases given by a parent purporting to waive her minor child’s claim for personal injuries.

[HN5] As the freedom to contract weighs in the balance when public policy grounds are asserted against the enforcement of a contract, courts must [**10] be attentive to prudential considerations and exercise caution. Tschirgi v. Merchs. Nat’l Bank of Cedar Rapids, 253 Iowa 682, 690, 113 N.W.2d 226, 231 (1962). These considerations have led this court to repeatedly hold that “contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy.” Huber, 501 N.W.2d at 55. Notwithstanding this well-established general rule, Galloway urges us to join the majority of state courts who have examined the issue and have concluded public policy precludes enforcement of a parent’s preinjury waiver of her child’s cause of action for injuries caused by negligence. See Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F. Supp. 20, 24 (E.D. Penn. 1985); Fedor v. Mauwehu Council, 21 Conn. Supp. 38, 143 A.2d 466, 468 (Conn. Super. Ct. 1958); Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. Ct. 1994); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (N.J. 2006); Fitzgerald v. Newark Morning Ledger Co., 111 N.J. Super. 104, 267 A.2d 557, 558 (N.J. Super. Ct. Law Div. 1970); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn. Ct. App. 1990); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex. App. 1993); [**11] Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001); Scott ex rel. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 10-11 (Wash. 1992).

The State responds that parents’ preinjury releases of their children’s personal injury claims are entirely consistent with legal traditions and public policy giving deference to parents’ decisions affecting the control of their children and their children’s affairs. To be sure, we have noted that [HN6] “a parent’s ‘interest in the care, custody, and control of [his] children’ is ‘”perhaps the oldest of the fundamental liberty interests recognized by”‘ the United States Supreme Court.” Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003) (alteration in original) (quoting Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001)). Yet, the deference and respect for parents’ decisions affecting their children’s property interests is restricted to some extent by the public’s interest in the best interests of children. For example, this court has determined that the law will not permit a parent to compromise her child’s financial security by waiving child support payments from the other parent in exchange for relinquishment of visitation rights. Anthony v. Anthony, 204 N.W.2d 829, 833 (Iowa 1973). [**12] We concluded in Anthony that an agreement to waive child support under such circumstances “makes the child’s best interest subservient to parental self interest.” Id. at 834. Consistent with the policy considerations noted by this court in Anthony, a modification of a child support order “is void unless approved by the court . . . and entered as an order of the court.” Iowa Code § 598.21C(3) (2009).

Parents’ authority to make decisions affecting their children’s affairs is limited in other contexts as well. If a conservator for a minor child has not been appointed, a parent’s authority to receive money or other property for his or her [*257] child under the Iowa Uniform Transfers to Minors Act is limited to an aggregate value of $ 25,000. Iowa Code § 633.574; see also Iowa Code § 565B.7(3) (stating if a custodian has not been nominated, or all persons nominated to serve as custodians are unable, unwilling or ineligible to serve, a transfer may be made to an adult member of the minor’s family unless the property exceeds $ 25,000 in value). Generally, [HN7] a parent has no right, in the absence of authorization from a court, to release or compromise causes of action belonging to a minor. 59 Am. Jur. 2d, Parent and Child § 44, [**13] at 212 (2002). This general rule is followed in this jurisdiction, where a parent serving as her child’s conservator adjusts, arbitrates, or compromises claims in favor of or against the ward with approval of the court. Iowa Code § 633.647(5).

These limitations on parents’ authority to make legally enforceable transactions affecting the property and financial interests of their minor children are derived from [HN8] a well-established public policy that children must be accorded a measure of protection against improvident decisions of their parents. We conclude [HN9] the same public policy demands minor children be protected from forfeiture of their personal injury claims by parents’ execution of preinjury releases. By signing a preinjury waiver, a parent purports to agree in advance to bear the financial burden of providing for her child in the event the child is injured by a tortfeasor’s negligence. Sometimes parents are not willing or able to perform such commitments after an injury occurs. If parents fail to provide for the needs of their injured children, and the preinjury waiver in favor of the tortfeasor is enforced, financial demands may be made on the public fisc to cover the cost of care.

Beyond [**14] the public’s pure economic interest in protecting children against parents’ improvident decisions waiving their children’s causes of action before injuries occur, another compelling practical reason weighs in favor of protecting children from the harsh consequences of preinjury releases. An adult’s preinjury release of his claim for his own personal injuries will be enforced even if the releasing party did not read the document before signing. “It is well settled that failure to read a contract before signing it will not invalidate the contract. Absent fraud or mistake, ignorance of a written contract’s contents will not negate its effect.” Huber, 501 N.W.2d at 55 (citation omitted) (holding that an adult’s preinjury release was valid even though he did not read the document). While this court has found valid policy reasons supporting the rule allowing the enforcement of releases against adults who voluntarily, and in some cases foolishly, waive their own personal injury claims in advance of injury, we believe the strong public policy favoring the protection of vulnerable minor children demands a different rule here.

As the Washington Supreme Court has noted, if a parent lacks authority [**15] without court approval to compromise and settle her minor child’s personal injury claim after an injury has occurred, “it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.” Scott, 834 P.2d at 11-12; accord Hojnowski, 901 A.2d at 387 (noting “children deserve as much protection from the improvident compromise of their rights before an injury occurs as [a rule requiring court approval of settlements of minor children’s claims] affords them after the injury”); Hawkins, 37 P.3d at 1066.

We also find it significant that in the instance of an adult releasing another party’s liability for negligence, the person reading the contract, and presumably comprehending and agreeing with its terms, is [*258] the person who will engage in the activity presenting the risk of injury for which the release is contemplated. Thus, if an adult waives another’s liability by executing a preinjury waiver of her own personal injury claims, she is aware that she has done so and is on notice to be vigilant for negligence in the course of her participation. While participating in the activity, if she perceives an unreasonable risk of injury, the adult [**16] is free to withdraw from it. Children tend to be vulnerable in such situations, however, in ways adults are not. The parent who reads, understands, and executes a waiver of liability for her child is not the person who will participate in the activity. Accordingly, the child may or may not understand what has been forfeited as a condition of her participation in an activity. She may or may not have the knowledge and experience required to assess and avoid risks of injury created by the activity. Even if a parent exercises reasonable care in investigating the potential risks of injury before signing a waiver and in advance of her child’s participation, often (as in this case) the parent is not present with the child during the subsequent activity. The parent hopes and perhaps believes her child will be safe and properly supervised during the activity, but if she does not participate in the activity with her child, she has no ability to protect her child once the activity begins. And, even if the child is uncomfortable with some aspect of the activity or senses a risk of injury while participating in the activity, the child may or may not have the ability to remove herself from it. The [**17] child’s ability to avoid the risk of injury will vary greatly, depending on the age and maturity of the child, the type of activity, her access to a phone, the personality and competence of the people supervising the activity, and other factors.

We conclude for all of these reasons that [HN10] the public policy protecting children from improvident actions of parents in other contexts precludes the enforcement of preinjury releases executed by parents for their minor children. Like a clear majority of other courts deciding such releases are unenforceable, we believe the strong policy in favor of protecting children must trump any competing interest of parents and tortfeasors in their freedom to contractually nullify a minor child’s personal injury claim before an injury occurs.

The State urges the court to follow the decisions of a minority of jurisdictions upholding preinjury releases executed by parents waiving the personal injury claims of their minor children. The decisions following the minority rule arise in litigation filed against schools, municipalities, or clubs providing activities for children. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647, 649 (Ct. App. 1990) [**18] (upholding a preinjury release executed by a father on behalf of his minor child waiving any claims resulting from the child’s participation in a school-sponsored event); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 747 (Mass. 2002) (holding a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998) (concluding a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity). The State contends the California, Massachusetts, and Ohio courts wisely determined public policy considerations justify the enforcement of parents’ preinjury waivers of their children’s claims. If such parental waivers are rendered unenforceable, the State posits recreational, cultural, and educational opportunities for youths [*259] will cease because organizations sponsoring them will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability. Our court of appeals expressed this generalized fear when it concluded the “[p]ublic interest is served by allowing the parties [**19] the freedom to enter into such agreements.” Korsmo v. Waverly Ski Club, 435 N.W.2d 746, 749 (Iowa Ct. App. 1988) (concluding “exculpatory provisions [in releases executed by adults waiving their own claims for personal injuries] actually promote [the] public interest because without such releases, it is doubtful these events would occur”).

We believe the fear of dire consequences from our adoption of the majority rule is speculative and overstated. We find no reason to believe opportunities for recreational, cultural, and educational activities for youths have been significantly compromised in the many jurisdictions following the majority rule. In the final analysis, we conclude the strong public policy favoring the protection of children’s legal rights must prevail over speculative fears about their continuing access to activities. We are mindful that if we have misapprehended the public policy considerations at work on this issue, the political branches of our government will adopt a different rule.

Accordingly we conclude the district court erred in enforcing the releases in this case. Having decided the releases that are the subject of this case are not enforceable, we do not address [**20] other arguments advanced by Galloway for reversal.

IV. Conclusion.

We conclude preinjury releases executed by parents purporting to waive the personal injury claims of their minor children violate public policy and are therefore unenforceable. Accordingly, we reverse the district court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except, Cady, J., and Ternus, C.J., who dissent.

DISSENT BY: CADY

DISSENT

CADY, Justice (dissenting).

I respectfully dissent.

Courts are, at times, capable of deciding legal issues based on public policy. These times, however, occur when the public policy is clear and apparent. See Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 283 (Iowa 2000) (“The need for clarity in public policy is . . . recognized in our reluctance to search too far beyond our legislative pronouncements and constitution to find public policy to support an action.”). Otherwise, public policy is best left to our legislative branch of government to decide as representatives of the people. The question whether it is imprudent as a matter of law for a parent to waive legal liability on behalf of a child as a condition for the child’s participation in [**21] an educational field trip is a matter for the legislature, not judges. If the subject of parental field trip waivers has surfaced in this state as a matter of public concern, the legislature can properly examine the issue and take any appropriate action.

I would affirm the decision of the district court.

Ternus, C.J., joins this dissent.

G-YQ06K3L262

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Grand Canyon Association Job Opening

Posted: May 6, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

GCA has three employment opportunities in Flagstaff and Grand Canyon. The development and publishing coordinator positions are based in the Flagstaff office, the Membership assistant will be based at the Canyon. See the complete job descriptions on our website at: http://www.grandcanyon.org/aboutus_employment.asp

Founded in 1932, the Grand Canyon Association (GCA) is the National Park Service’s official nonprofit partner raising private funds to benefit Grand Canyon National Park, operating retail shops and visitor centers within the park, and providing premier educational opportunities about the natural and cultural history of the region. GCA works to help preserve and protect Grand Canyon National Park by cultivating support, education and understanding of the park.

Please share this with anyone who might be interested in working with GCA, thank you!
Helen

Helen Ranney
Director of Outreach and Public Relations
Grand Canyon Association
1824 S. Thompson Street, Suite 205
Flagstaff, AZ 86001
(928) 863-3877 Direct line
(928) 255-8965 Mobile
hranney@grandcanyon.org
www.grandcanyon.org

The official nonprofit partner of Grand Canyon National Park

When in doubt Run around Scream and Shout

Posted: May 5, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Great lines, why aren’t park rangers running for their lives. More people are killed by deer every year than sharks.

See Might as well panic

“Apparently, panicking is an acceptable substitute for forethought, contingency planning or actually taking productive action.”

Seriously, this industry should be the best at thinking its way through problems and the industry thinks way to hard!

What do you think? Leave a comment.

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Sierra Designs, Kelty, Ultimate Directions, Slumberjack & Wenzel Sample Sale

Posted: April 29, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

NSGA is reporting that NPS Recreation visits are Up!

Posted: April 28, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

National Sporting Goods Association says 3.9% increase in visits.

The April 21, 2011 Newsletter reported Tent and RV camping are down and backcountry camping is up 1% this year and 3.7% last year in our National Parks.

The NSGA has always got great information and research on what is going on with our world.

What do you think? Leave a comment.

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Banff Mountain Book Competition Call for Entries

Posted: April 22, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

The 2011 Banff Mountain Film and Book Festival’s international book competition is underway. Writers and publishers of new books with mountain and/or adventure-travel themes are invited to enter the 18th annual competition — and we hope you have a book (or books!) to enter this year. View 2011 Competition entry details.

Entry deadlines are:

June 30, 2011: Completed entry form submitted online, or via mail or fax to the festival office

June 30, 2011: Finished copies of titles published before June 30 to the festival office.
(Or deadline of August 1, for titles published after June 30.) See the competition regulations for details.

Early submission of books is encouraged and appreciated.

Please contact us if you have any difficulties downloading the entry form.

Best Wishes,
Christine Thél
Competition Coordinator
ENTER NOW
view details
To see the website go: http://rec-law.us/hx0gbF

Remember the National Outdoor Book Awards is coming later this summer.

USFS in Wyoming is issuing permits

Posted: April 21, 2011 | Author: Recreation Law | Filed under: Uncategorized | Tags: Adventure travel, Outdoor recreation, Permits Forest Service Permit, Rock climbing, Ropes course, Special Use Permit, US Forest Service, USFS | Leave a comment

Really.

Permits have been issued recently for guided mountain bikingand fly fishing and there are plans to issue permits for guided ice climbing.

Image via Wikipedia

See In Wyoming, New Forest Rules and New Business Opportunities?

What do you think? Leave a comment.

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America’s 22 Million Injured Runners Can Get Back on Their Feet with Running Doc’s Guide to Healthy Running

Posted: April 15, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

New Fitness Medical Book from VeloPress

Boulder, CO, USA – April 12, 2011 – Running Doc’s Guide to Healthy Running: How to Fix Injuries, Stay Active, and Run Pain-Free is the first comprehensive guide to avoiding and overcoming running injuries. The American Medical Athletic Association has estimated that every year 37-50% of America’s 44 million runners suffer a running-related injury severe enough to bring them to a halt. For these runners, injury is a frustrating fate that delays their fitness, performance, and weight-loss goals. With Running Doc’s Guide to Healthy Running, runners can beat injuries and enjoy running pain-free. The book is now available in bookstores, running shops, and online. Runners can download a preview of the more than 100 injuries and conditions covered at www.velopress.com/runningdoc.

Lewis G. Maharam, MD, better known as Running Doc(tm), is the most trusted doctor in running. From head to toenails, his book explains healthy running practices and guides runners to the right diagnosis and treatment for over 100 running injuries and related health problems.

The book begins with healthy training and gear practices that will help runners avoid injury. Maharam covers non-injury health issues like colds and flu, aches and pains, and healthy running for women. The book’s illustrated Injury Manual includes diagnosis and treatment information for injuries to the feet and ankles, legs and knees, groin and hip, back, neck, and head.

Maharam offers simple, effective treatments for every common running injury. Using clear illustrations of injured areas and therapeutic strength and mobility exercises, he describes medically proven ways to fix injuries like runner’s knee, shin splints, Achilles’ tendinitis, IT Band Syndrome, plantar fasciitis, and dozens of other maladies. For more difficult injuries, Maharam explains when runners should seek professional medical care.

Runners should enjoy their sport free of pain, yet more than 1 in 3 runners will get hurt this year. With Running Doc’s Guide to Healthy Running, runners can fix injuries, stay healthy, and run pain-free.

Running Doc’s Guide to Healthy Running: How to Fix Injuries, Stay Active, and Run Pain-Free Lewis G. Maharam, MD with foreword by Frank Shorter Paperback with 2-color tables and figures throughout
248 pp., $24.95, 978-1-934030-68-4

Lewis G. Maharam, MD, is one of the world’s most extensively credentialed and well-known running health experts. Better known as Running Doc(tm), Maharam is the medical director of the Rock ‘N’ Roll Marathon series and former medical director of the New York Road Runners Club and the New York City Marathon. He has appeared on World News Tonight, Today, Good Morning America, Inside Edition, CNN, and Fox News. His work has appeared in Runner’s World and Competitor magazines, and he is the author of four books.

VeloPress is an endurance sports and fitness publisher with books on cycling, triathlon, running, and nutrition.
Dave Trendler, Marketing and Publicity Manager, (303) 245-2138, dtrendler@competitorgroup.com
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You can’t walk on a nature trail so you sue because you now can’t have sex?

Posted: April 12, 2011 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

I mean it seems to make sense to me…..NOT!

A city employee, who has a city building named after him, was walking with his wife on one of the city nature trails with a small child. The child slipped and his wife grabbed the child breaking her ankle.

The lawsuit claims the nature trail was “inappropriately designed, built and maintained, according to the notice of claim.”

The attorney for the plaintiff’s stated “This is serious, serious litigation….” I’ve never seen any litigation that was not serious, but maybe he was trying to reinforce the idea with someone?

See Insettas’ claim cites Oneonta

I thought with injuries you were supposed to elevate them?

What do you think? Leave a comment.

Twitter: RecreationLaw
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It's not what I write, It's what you Learn

Probably all of them are in Flagstaff and Prescott…

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Texas requires that a release be clear and conspicuous to anyone signing it. The release must inform the signor that they are giving up their legal rights.

So? Summary of the case

So Now What?

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Marketing makes promises that Risk Management has to pay for….

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You’re in a motorhome (first problem) and leave with the windows open and the air conditioning on in a state park?

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Great Article points to 11 things you can do to help.

This article here is a combination of the article I’m referencing and my personal experience, which mirrors the ideas in the article.

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Study shows that adventure tourism is a rapidly growing market and a way for countries to grow tourism.

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What a fantastic opportunity!

Get paid to work in one of our Parks! Apply Now!

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Concerns all SCORPIO lanyards Manufactured before May 17th 2011 up to serial number 11137****.

The relevant product references are: L60, L60 CK, L60 2, L60 2CK, L60 H, L60 WL, K29VF 1, K29VF 2, K29VE 1, K29VE 2, K29V 1, K29V 2.

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The intelligence behind this proposed law matches the intelligence behind several of the laws in Hawaii.

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Its fun to watch little M running around yelling!

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Comments are moderated Michael!

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We are losing birds too fast.

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To Read an Analysis of this decision see

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Great lines, why aren’t park rangers running for their lives. More people are killed by deer every year than sharks.

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National Sporting Goods Association says 3.9% increase in visits.

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