Worker’s comp ruling requires employers to walk a fine line when they require their employee to be in shape.
Posted: April 11, 2011 Filed under: Uncategorized Leave a commentCO off-duty police officer recovers WC benefits for bicycle accident because she was required to pass physical test.
City of Northglenn v. Eltrich, 1995 Colo. App. LEXIS 126; 19 BTR 663
This was the perfect set of facts at the right time to allow an off duty police officer to collect for injuries due to a bicycle accident. However, for anyone in the recreation community, this could easily occur.
The police officer, here the respondent, had just failed a physical test. Her supervisor had given her the impression that she needed to get into shape and pass the test, and she knew that she could be fired for not passing the test. She was out riding her bicycle, attempting to exercise when she had an accident.
Her employer, the police department did not provide exercise facilities and did not provide paid time to exercise. However physical fitness, in this case cardio fitness was part of the job.
The court looked at the appeal on whether the activity was required or part of her employment.
An activity “arises out of and in the course of” employment when it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs his or her job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a special benefit on the employer.
The court looked at the following factors to determine the bicycle accident was covered by worker’s compensation.
…whether the activity occurred during working hours; whether it occurred on or off the employer’s premises; whether participation was required; whether the employer took the initiative in sponsoring or organizing the team; whether the employer made contributions to the team; and whether the employer derived a benefit from the team.
Specifically, the court agreed with the Worker’s Compensation panel that “participation in the off-duty exercise program was required. The program was initiated by employer, and employer stood to benefit by the off-duty exercise program.”
The decision was a 2 to one decision. The dissenting judge filed a dissent stating because she was not at work during work hours or at her place of employment the accident should not be covered. The employer also had no supervision or control over the employee or her activities.
The dissent quoted a Supreme Court decision which created a six prong test which had to be met if a recreational activity was to be covered under worker’s comp. The six points of the test were:
1) whether the recreational activity occurred during working hours;
2) whether it was held on or off the employer’s premises;
3) whether employee participation was required or encouraged;
4) whether the activity was financially sponsored by the employer;
5) whether the activity was initiated by the employer; and
6) whether the employer received tangible benefits from the activity.
The dissent stated that since there was no sponsorship (support) for the activity, and not during business hours or at the employer’s premises the claim should be denied.
The court listed several other jurisdictions that had looked at the case and decided differently. Oregon had a similar claim and held the injury “was not compensable because it did not arise out of, and in the course, of employment.” Georgia, New Hampshire, Oklahoma, New York all were listed as having the same decision as Oregon.
However, the dissent did find that California ruled the same was as Colorado had.
So?
I believe the facts of this case where perfect for the court to find this way. I also think that other than California and a few other states this would be a difficult holding to support in other states.
However, I suggest if you are paying worker’s compensation insurance you work with a worker’s compensation attorney and your WC insurance company to understand your state laws. Worker’s compensation is strictly statutory and controlled by state laws. As such each state has a few particular differences, like this decision which you should know about.
So Now What?
If you have an outdoor program and require your guides to have a certain level of fitness, based on what your attorney says, figure out a way for your employees to exercise on their time without benefits or pay them to work out on your time and pay for their injuries.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Green Mountain Sports Grand Opening
Posted: April 9, 2011 Filed under: Uncategorized Leave a commentGreen Mountain Sports 12364 W. Alameda parkway Lakewood Co
Saturday, April 9 · 10:00am – 4:00pm
Demo Bikes/ food/ beer/music/product promos/ closeout prices
Hi everyone come on over and check out the new shop. Bring a bike and go for a ride. We will have some Demos available. Grab a brat and a beer on me Thanks for your support.
Ed Note: Great Bike & ski shop and GREAT people. Show up
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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UIAA signs MoU with Peace and Sport
Posted: April 8, 2011 Filed under: Uncategorized Leave a commentThe UIAA has signed a Memorandum of Understanding (MoU) with Peace and Sport, a Monaco-based organization that promotes peace through sport in poor areas of the world.
The MoU was signed on the sidelines of the SportAccord meeting in London on April 5 by UIAA Vice President, Jordi Colomer, and Peace and Sport (P&S) founder and president, Joel Bouzou.
“The UIAA has a firm belief that mountains are areas of peace and respect for nature. The practice of mountaineering starts from this belief and this message goes from the mountains to the rest of the world,” said Colomer.
“The values associated with climbing and mountaineering positively forge ethics, such as solidarity, trust in others, concern for the environment, reaching for excellence and going beyond one’s limits. These values can profoundly change the personality of young people who have grown up without guidelines in life. I am convinced that climbing has the power to open new horizons for them,” said Bouzou.
“Is there a more highly symbolic place than a mountain summit to launch a message of peace, friendship and brotherhood to the world? For all these reasons, I am delighted about this partnership with the UIAA and thank them for their commitment to promote peace alongside Peace and Sport,” he added.
P&S enters partnerships with international sports federations like the UIAA to develop sports activities with the goal of promoting dialogue, social reintegration of youth and sustainable peace.
The Monaco-based organization, founded in 2007, has entered partnerships with about 30 international sports federations besides the UIAA.
The goals of P&S are in line with those of the UIAA’s Global Youth Summit (GYS). The GYS is a series of youth camps held in different parts of the world each year that bring together young people from a variety of countries to promote peace and cooperation and protection of the environment.
Definitions
Posted: April 6, 2011 Filed under: Uncategorized Leave a commentAn ongoing project
I’m going to try and put legal definitions for the outdoor recreation and adventure travel industry online. I want to accomplish a couple of goals. The first will be to provide a place to quickly find an answer if you do not understand a term I’m using in an article. The second is to start to clarify some of the different terms that are used in our industry.
This is a work in progress and this is a very small start. Hopefully it can grow and expand to provide a benefit to all.
DEFINITIONS
A
ACCIDENT: That occurrence in a sequence of events which usually produces unintended injury, death or property damage.
ACCREDITATION: Accreditation is sought after by educational institutions to prove academic of ability to educate. Accrediting organizations are themselves subject to ranking criteria. Harvard is accredited by a different organization then a small community college. Accreditation reviews the qualifications of the instructors, physical plant, instructor/student ration, number of books in the library and numerous other criteria.
Title or paperwork given to a program or company, which states the program or company on the date of the accreditation, meets the levels of performance required by the organization, paid to supply the accreditation.
Accreditation is not a defense in and of itself. Accreditation is evidence the defendant knew and operated above the standard of care.
ACT OF GOD: Hail, Lighting, Wind, Tornadoes, Hurricanes, and in some cases floods are acts of God. If the plaintiff injury was due to an “Act of God”, the Defendant still pays, because most juries believe someone here on earth must be financially liable for the acts of God.
An act occasioned by an unanticipated grave natural disaster.
ADVENTURE TRAVEL: An activity that takes place in a distinctive, remote or exotic location, mostly outdoors, generally including a high degree of participation by those involved (Kim Swanton, Carlson Marketing Group, 1990).
ALLOCATION OF RISK: A written document that shifts the burden of damages and or insurance from one party to another party. Allocation of Risk documents includes Releases, Waivers, Covenant’s Not to Sue, etc.
APPELLATE COURTS: Courts above the trial court that only look at the record of the trial court to determine if the law was broken or that the jury’s decision was so out of line that it made absolutely no sense. (Note: New York uses a different terminology for its courts.)
ARBITRATION: The process for resolution of dispute by one or more private, unofficial (non-governmental) persons whose selection is agreed to by the parties to the dispute, or appointed by a neutral party, which is outside of the judiciary processes (the courts). As used in this book, and as typically used, the word implies the use of the rules and regulations of the American Arbitration Association (AAA).
Arbitration is similar to a court proceeding. However, the rules and requirements are not as strict and involve a shorter time. Arbitration clauses in contracts should be considered carefully. They can be an effective and inexpensive way to end litigation. Arbitration may also defer some lawsuits because the possibility of high damages is removed.
ASSUMPTION OF THE RISK: Assumption of Risk by a person shall be considered by the trier of fact in apportioning negligence pursuant to section Colorado Revised Statutes 13-21-111. A person assumes the risk of injury or damage if he voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved. In any trial to a jury in which the defense of assumption of risk is an issue for determination by the jury, the court shall instruct the jury on the elements as described in this section.
Assumption of Risk is a defense when the injured party has sufficient knowledge to understand and appreciate the risks he undertook. As such the injured party will be denied a recover for damages by the fact finder.
Defense to a charge of negligence, where the one injured is held to assume the risk of injury from a known and appreciated danger by proceeding anyway.
Assumption of Risk is the only defense that can be used against an action by a minor.
Assumptions of Risk documents are the only documents that can be used by concessionaires or permitees on National Park Service or Forest Service lands.
ATTRACTIVE NUISANCE DOCTRINE: Landowner liability to children if a child is attracted to the land, a structure or the land. Applies to lakes, playgrounds, and fun things. Liability may not attach until the landowner knows of the attractive nature of the thing, but once known the liability is there.
(1) The place where the condition is found must be on land which the owner knows or has reason to know that children are likely to trespass; (2) the condition must be one which the occupier, (landowner or tenant), should recognize as involving an unreasonable risk of harm to children; (3) the child, because of immaturity, either does not discover the condition or does not in fact appreciate the danger involved; and (4) the utility to the possessor of maintaining the condition must be slight as compared with the risk to the children involved.
Examples would be climbing walls, ropes courses or fitness courses. Because they look fun, and kids are attracted to them.
B
BREACH: An intentional or unintentional violation of an obligation, contract, or promise.
Failure to perform a duty, promises or warranty.
C
CASE LAW: Law based on decisions of the Appellate, Federal, and Supreme Courts. You often hear about cases that are frightening, however lawyers ignore them because they are not case law. A lower court or trial court made the decision and that does not hold any weight or affect by any other court. It is only after an Appellate Court or the case has been appealed once that the decision has any weight or bearing.
CERTIFICATION: Title or paperwork given to an individual, that states the individual has completed training or has skills to a level required by the organization providing the certification. “Certification” given by an organization or business without legal authority has no value in a defense of a lawsuit except as proof of education.
COMMON LAW: Law developed from customs, traditions, religion, and the king. Not laws created by legislature.
COMPARATIVE NEGLIGENCE: The negligence of all of the parties is apportioned to all parties. If the Plaintiff is 40% liable and the Defendant is 60% liable and the Plaintiff is awarded $100,000.00 in damages. The damages are reduced by 40% to $60,000.00.
If the Plaintiff is 75% liable and the Defendant is 25% liable, the Defendant wins the trial.
The risk assumed by the Plaintiff is a major factor in determining the Plaintiff’s degree of negligence and reward.
COMPARATIVE RISK: An expression of the risks associated with two (or more) actions leading to the same goal; may be expressed quantitatively (a ratio of 1.5) or qualitatively (one risk greater than another risk).
Any comparison among the risks of two or more hazards with respect to a common scale. [S. L. Brown]
CONSENT: Informed consent of an adult is required before any medical care can be performed. Informed consent means the patient is advised of the problem and the proposed treatment, possibly what to expect if no treatment is given. Implied consent is recognized in emergency situations where the patient if conscious and sensible would have given their consent. Informed consent is presumed from the parent if the patient is a minor and the parent is unavailable.
CONSIDERATION: Any benefit given to one by another as an inducement to enter into a contract. Consideration does not have to be money, but money is the consideration in most contracts.
CONTRACT: An agreement between two or more parties involving a promise or promises, which the law will enforce. Requires consideration and a meeting of the minds.
CORPORATION: An artificial entity created or recognized by a state, acknowledging an association of one or more people, which is separate and distinct from those people. Generally, individual shareholders enjoy the protection of limited liability in that each is liable and “at risk” only to the extent of his investment to purchase the stock of the corporation.
D
DAMAGE: Damage is the severity of injury or the physical, functional, or monetary loss that could result if control of a hazard is lost.
DAMAGES: Monetary compensation paid to a person who has suffered loss, detriment, or injury to his person, property, or rights through an act or omission of another.
A dollar amount assigned to the injury of the Plaintiff.
Compensation for loss or injury suffered.
The common denominator that has been deemed the solution to all problems.
DANGER: Expresses a relative exposure to a hazard. A hazard may be present, but there may be little danger because of the precautions taken.
DE MINIMIS RISK: From the legal maxim “de minimis non curat lex” or “the law is not concerned with trifles.”
DEATH FROM ACCIDENT: A death which occurs within one year of the accident.
DECEDENT: A dead person.
DEFENDANTS: You.
DEPONENT: A person who gives testimony under oath, which is then, typically, put in writing. (See also Affiant).
DEPOSITION: The laying down or precipitation of mineral matter that may eventually form rocks or that creates secondary land forms such as deltas and sand dunes.
The transfer of substances in air to surfaces, including soil, vegetation, surface water, or indoor surfaces, by dry or wet processes. [S. L. Brown]
DISABLING INJURY: An injury causing death, permanent disability, or any degree of temporary total disability beyond the day of the accident.
DONEE: A person who receives a gift from another.
DONOR: A person who makes a gift to another.
DUE CARE: Prudent course that should be taken by a reasonable individual or business to avoid the chance of injury to another.
DUTY OF CARE: A legal duty you owe to someone. In most states, you owe a duty to the public to clean your sidewalk of snow. You breach that duty if you do not clean your sidewalks of snow.
In most states, there is no duty of care to rescue another person unless you are the reason the person is in peril. Once you respond or start to give care you cannot stop.
Persons in your care or paying you a fee for care creates a Duty of Care in you.
DUTY: A Moral obligation, action or conduct that required by one’s profession or position to do or not do something or some act.
E
ECOTOURISM: Purposeful travel to natural areas to understand the cultural and natural history of the environment taking care not to alter the integrity of the ecosystem, while producing economic opportunities that make the conservation of natural resources beneficial to local peoples (The Ecotourism Society, 1990).
ENCUMBRANCE: A claim, charge, lien or interest in property, especially real estate.
The connected set of environmental media through which a potentially harmful substance travels from source to receptor. [S. L. Brown]
ESTOPPEL: A legal doctrine which holds that one should be stopped from denying, disavowing or repudiating one’s own statements or acts.
EXEMPLARY DAMAGES: Damages assessed to punish the defendant, to make an example of them so others will not follow his example. Same as Punitive Damages
EXPECTED LOSS: The quantity obtained by multiplying the magnitude of health or environmental effect loss by the probability (or risk) of that loss and adding the products. The expected loss is the average loss over a large number of trials; one must reflect on the appropriateness of its use in cases for which there will be only one, or a few, trials.
EXPOSURE: The time integral of the concentration of a toxicant which is in the immediate vicinity of various ports of entry (such as lung, GI tract and skin).
Qualitatively, contact between a potentially harmful agent and a receptor (e.g., a human or other organism) that could be affected. [S. L. Brown]
EXPRESS WARRANTY: Arises from written or oral statements asserting the quality of goods is for a particular purpose
F
FACT FINDER: In a jury trial, the jury is the fact finder. In a trial to the court, the judge is the fact finder. The fact finder determines who is telling the truth, who is lying, what evidence to believe and what to ignore, after it has been allowed in by law.
FORCE MAJEURE: A force, event or occurrence, which is beyond the control of the parties to a contract, such as a fire or strike.
FORESEEABILITY: If the actions of the Plaintiff should have been or were known as something that would or could happen, the acts of the Plaintiff were foreseeable to the Defendant. The defendant is held to have knowledge of the Plaintiff’s foreseeable acts.
Foreseeability is foresight (not hindsight, which is proximate cause,)
Example: Little kids run to playgrounds. (To prove this call McDonald’s.)
A Defendant can be held liable for an injury of the thing that caused the injury was foreseeable, even thought the Defendant knew of the thing.
Insurance, third party or risk management consultants are beneficial in examining a business and identifying “foreseeable” risks.
G
GOOD SAMARITAN LAW: To encourage rescue, most states have laws that say if you stop and give assistance you can not be held liable for the assistance you provide. The protection extends to simple carelessness. There is no Good Samaritan protection for gross negligence. The care must be voluntary and performed at an emergency.
Example: Colorado Good Samaritan Law: Colorado Revised Statute 13-21-108. Persons rendering emergency assistance exempt from civil liability.
(1) Any person licensed as a physician and surgeon under the laws of the state of Colorado, or any other person, who in good faith renders emergency care or emergency assistance to a person not presently his patient without compensation at the place of an emergency or accident, including a health care institution as defined in section 13-64-202 (3), shall not be liable for any civil damages for acts or omissions made in good faith as a result of the rendering of such emergency care or emergency assistance during the emergency, unless the acts or omissions were grossly negligent or willful and wanton. This section shall not apply to any person who renders such emergency care or emergency assistance to a patient he is otherwise obligated to cover.
(2) Any person while acting as a volunteer member of a rescue unit, as defined in section 25-3.5-103 (11), Colorado Revised Statutes, notwithstanding the fact that such organization may recover actual costs incurred in the rendering of emergency care or assistance to a person, who in good faith renders emergency care or assistance without compensation at the place of an emergency or accident shall not be liable for any civil damages for acts or omissions in good faith.
(3) Any person, including a licensed physician, surgeon, or other medical personnel, while acting as a volunteer member of a ski patrol or ski area rescue unit, notwithstanding the fact that such person may receive free skiing privileges or other benefits as a result of his volunteer status, who in good faith renders emergency care or assistance without other compensation at the place of an emergency or accident shall not be liable for any civil damages for acts or omissions in good faith.
GROSS NEGLIGENCE: An act or omission purposely committed by a person knowing the conduct was dangerous and whose conduct was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights or safety of others. C.J.I. 3d, Civ. 9:32
H
HOLD HARMLESS: An agreement between two or more parties where one party agrees to cover all of the losses, damages and costs of the other party for any damages they may incur. Very similar to an insurance policy.
Example: The school district signs a hold harmless agreement with your operation so that any parent who sues you for injuries to their child will be covered by the School District. The school district covers the cost of defending the litigation and paying any damages.
See Indemnify.
I
IMPLIED WARRANTY OF FITNESS: The product will do what it was represented to do. If you create equipment, products or goods used or sold to the public you are creating this warranty.
in loco parentis: The individual stands in the shoes of the parents. The individual or agency is charged with the parent’s rights, duties, and responsibilities. The individual and or agency must act as the “reasonably prudent parent” would from dangers, self-injury, and irresponsibilities.
INCUMBRANCE: See Encumbrance.
INDEMNIFICATION: An agreement where one party agrees to pay you for any damages or losses you may incur based on the contract. Similar to insurance contracts.
INDEMNIFY: The act of holding another not responsible for loss or damage. Also, the agreement to reimburse another for loss or damage from a third person’s act or refusal to act.
INHERENTLY DANGEROUS: An activity is inherently dangerous if there is (a) an existence of a high degree of risk of some harm to the person; (2)likelihood that any harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of commons usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which value to the community is outweighed by its dangerous attributes. (Restatement, Torts 2d § 519(1))
INTENTIONAL TORT: Intentional conduct resulting injury. (Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979)
An act which proximately causes an injury, the intent to injure and an injury
IRREVOCABLE: That which cannot be withdrawn, repealed, canceled, annulled or changed.
J
JOINT AND SEVERAL LIABILITY: Each defendant, no matter what there contribution to the injury or the cause is liable for the full amount of the damages. A defendant that pays the damages may have a cause against his co-defendant for contribution. Plaintiff can recover 100% of his damages from the rich person or deep pocket.
JOINT VENTURE: A voluntary agreement between two or more people to conduct business for profit in a specific business situation and for a limited or fixed period of time. Typically, a Joint Venture is managed by a “Venture Manager” or “General Partner” who is liable for losses, and one or more other investing partners, referred to as “Limited Partners,” each of whom is liable for losses only to the extent of his respective capital contribution to the Joint Venture.
JUDGMENT: The final decision of a court, which determines the rights and claims of the parties to a lawsuit.
JURISDICTION: In the legal sense, the authority by which courts hear and decide cases and exercise their legal authority. The term also is used to refer to the sphere of territorial range of authority (usually divided along political boundaries such as towns, cities, or states).
K
L
LAST CLEAR CHANCE DOCTRINE: If the Plaintiff puts himself in danger from which he cannot extract himself and the defendant seeing the plaintiff’s problem, and having the opportunity to save the plaintiff, fails to exercise ordinary care and extract the plaintiff, the defendant is liable for failing to exercise the “Last Clear Chance” to save the Plaintiff.
LIABILITY: comprehensives term referring to any and every hazard or responsibility.
LIQUIDATED DAMAGES: An agreed upon amount of damages (money) an injured party will be entitled to receive upon default or breach of an agreement by the other party, so that the injured party does not have to establish the exact amount of his actual damages in any subsequent lawsuit.
LITIGANT: A party to a lawsuit.
LOSS: an unplanned decrease in a property or other value which can be measured in dollars.
LOST DAY CASE: Injury severe enough the participant lost a day of the activity.
M
MALFEASANCE: The commission of some act which is positively unlawful
MISFEASANCE: Duty to conduct an activity with due regard for the rights of others, failure to do so is misfeasance.
There is a distinction between “nonfeasance” and “misfeasance” or “malfeasance.” This distinction is often of great importance in determining an agent’s liability to third persons. “Nonfeasance” means the total omission or failure of an agent to enter upon the performance of some distinct duty or undertaking which he has agreed with his principal to do; “Misfeasance” means the improper doing of an act which the agent might lawfully do, or, in other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons. “Malfeasance” is doing of an act which he ought not to do at all. (Desmarais v. Wachusett Regional School Dist., 360 Mass 591, 276 N.E. 2d 691, 693)
N
NEAR MISS INCIDENTS: Less than a reportable injury but could have easily been one; a close call; potentially dangerous situation were safety was compromised but did not result in injury; unplanned or unforeseen event; situation which involves an expression or relief whenever.
NEGLIGENCE PER SE: Negligence that violates the statute. There is no defense and liability is absolute. Negligence per se can also be applied to activities by statute.
NEGLIGENCE: The omission or failure to do something or to perform some act which a “reasonable man,” guided by ordinary considerations, would do in the same or similar circumstances.
Failure to exercise the standard of care which a reasonable person in the same or similar circumstances would exercise, and which causes an injury and damages.
A legal duty, a breach of that duty, injuries that are proximately caused by the Breach of the duty.
The failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do under same or similar circumstances. (C.J.I. 3d Civ. 9:4, Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954))
NONFEASANCE: Neglect of a duty. Nonperformance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty.
O
OBLIGEE: The person in whose favor some act or obligation must be performed by an Obligor.
OBLIGOR: One who is required to perform some act or obligation.
P
PARTNER: One who has formed a partnership with one or more others.
PARTNERSHIP: A voluntary agreement between two or more people or companies to conduct business for profit on a continuing basis as co-owners do. Profits as well as losses are to be shared proportionally and each partner (and his assets) is liable and “at risk” for any losses incurred by the partnership.
PARTY: A person or entity in a transaction, matter or proceeding who is obligated, as in a party to a contract, or is directly influenced by its outcome, as in a party (plaintiff or defendant) to a law suit.
PERSONAL PROPERTY: That which can be moved, as distinguished from real property, which is land.
PLAINTIFF: The injured party, the party filing a lawsuit.
PREMATURE DEATH: A death that occurs before statistical expectation, usually attributable to a specific cause, and usually referring to deaths statistically estimated in a population rather than to individuals.
PRIVILEGE: A legal principal where one party talking to a specific other party cannot disclose the substance or any of the conversation. A client has privilege with his attorney. The attorney can only reveal the substance of the conversation after receiving the client’s permission. The privilege is waived if another party hears the conversation. Privilege also can exist between documents exchanged with the lawyer and his client.
Privilege in some form exists between a client and his attorney, clergy, and doctor. Some states have additional privileges that may or may not standup in other states or other courts.
PROBABILITY: A probability assignment is a numerical encoding of the relative state of knowledge.
PROXIMATE CAUSE: The injury was a proximal result of the actions of the defendant. Proximate cause is hindsight, (Foreseeability is foresight).
PUNITIVE DAMAGES: Damages awarded by the finder of fact to punish the defendant in a criminal way for their acts. Damages that are beyond the damages incurred by the Plaintiff. Punitive Damages are not covered by insurance. See Exemplary Damages
Q
R
REAL PROPERTY: Land, as distinguished from personal property.
REALTY: See Real Property.
REASONABLE AND PRUDENT PROFESSIONAL: Standard of care of the reasonable and prudent professional. If you hold yourself out to be of certain training, education, skill or the like you must uphold the standard of care of the reasonable and prudent person with the same training, education, knowledge, or skill.
Example: A river guide will be judged with other river guide skills, not the general public.
The level of action or inaction that a reasonable and prudent person would exercise in the same situation.
Conduct in violation of a safety rule, if either deliberate, willful, or with reckless disregard for another’s safety (malice) is a violation of the reasonable and prudent standard.
RECREATE: The act of refreshing oneself mentally or physically.
RECREATION LAW: A body of law which is defined by the type of activity rather than the nature of the legal issues presented.
The body of law which is defined by the type of activity rather than the nature of the legal issues presented.
RELATIVE RISK: The ratio of the rate of the disease (usually incidence or mortality) among those exposed to the rate among those not exposed.
RELEASE: The giving up of a right, claim, or privilege, such as the right to sue, which one has or may in the future have against another. A “General Release” is the giving up of any and all rights, claims or privileges against another.
RELEASEE: One who pays money or gives other consideration in order to be released.
RELEASOR: One who gives a Release in exchange for money or other consideration.
RESCUE, DUTY TO: Duty to Rescue means employing all reasonable means to save someone from injury which you had no hand or responsibility in causing. Once rescue is started, however, several professions have a duty to continue until relieved under state law. Emergency Medical Technicians, Paramedics, Nurses, Doctors and some outdoor Guides have this legal responsibility. Unless required by state law, there is no duty to rescue.
There is no duty to rescue unless:
You placed the victim in the situation that places the victim in peril or caused the injury.
You owed a duty to keep the victim from the situation, such as a professional guide, schoolteacher etc.
You are required to by statute
RESPONDEAT SUPERIOR: The negligence of the employee will be imputed to the employer if the employees were acting within the scope of responsibility and authority of their employment.
RISK ANALYSIS: A detailed examination including risk assessment, risk evaluation, and risk management alternatives, performed to understand the nature of unwanted, negative consequences to human life, health, property, or the environment; an analytical process to provide information regarding undesirable events; the process of quantification of the probabilities and expected consequences for identified risks.
RISK ASSESSMENT: The process of establishing information regarding acceptable levels of a risk and/or levels of risk for an individual, group, society, or the environment.
RISK ESTIMATION: The scientific determination of the characteristics of risks, usually in as quantitative a way as possible. These include the magnitude, spatial scale, duration and intensity of adverse consequences and their associated probabilities as well as a description of the cause and effect links.
RISK EVALUATION: A component of risk assessment in which judgments are made about the significance and acceptability of risk.
RISK IDENTIFICATION: Recognizing that a hazard exists and trying to define its characteristics. Often risks exist and are even measured for some time before their adverse consequences are recognized. In other cases, risk identification is a deliberate procedure to review, and it is hoped, anticipate possible hazards.
RISK: The potential for realization of unwanted, adverse consequences to human life, health, property, or the environment; estimation of risk is usually based on the expected value of the conditional probability of the event occurring times the consequence of the event given that it has occurred.
Thomas Cool provides an alternative definition of risk in the context of uncertainty.
S
SAFETY: Relative protection from adverse consequences.
SPORTS LAW: A combination of various legal disciplines including labor law issues, rules and regulations of amateur sports, constitutional issues, personal injury litigation, and even copyright law.( Robert E. Frale, University of California, Hastings College of Law, 1989)
STANDARD OF CARE: The level of action, non-action or care that the industry requires as defined by the general population, the law requires as applied to a breach of duty to an injured party.
Example: The standard of care is canoes if it capsizes and fills with water will not sink. The amount of training an employee should have to perform his job.
STANDARD: The minimum acceptable level of operation for a business.
STATUTORY LAW: Law created by a legislative body, congress.
STRICT LIABILITY: Activity which is classified as inherently dangerous which give rise to imposition of liability regardless of legal fault or moral blame. (Western Stock Center, Inc. v. Sevit, Inc., 195 Colo. 372, 578 P.2d 1045 (1978))
Examples: Wild or Dangerous Animals, Dams or man-made structures impounding water, Explosives
T
TEMPORARY TOTAL DISABILITY: An injury which does not result in death or permanent disability, but which renders the injured person unable to perform regular duties on one or more full calendar days after the day of the injury.
TERM: Length of time. When used in connection with a lease, term refers to the length or duration of permitted occupancy or possession, measured from the date of first permitted occupancy or possession (not the date of signing the lease).
TERMINATION: An end, severance or cessation of something, such as the termination of a contract.
TITLE: Ownership or a claim of right of ownership, especially of real estate; a document proving ownership.
TORT: Civil wrong
TOURISM: Travel away from home primarily for pleasure
TRAVEL AND TOURISM ADVOCACY: Relates to the legal considerations that arise from the operations of the travel industry, whether for business or pleasure.
TRIAL COURT: The court where the evidence is presented. Witnesses and Experts testify and the jury makes a decision.
U
UNIFORM COMMERCIAL CODE (U.C.C.): A body of uniform laws (with only slight variations) governing business, banking and commercial relationships, which have been adopted by all states (except Louisiana).
V
VIODLABLE: Where one person has the ability to make the contract void. Minors have the right to void a contract.
VOID: Having no legal force or validity; null. If a contract is void, it never was. Both parties are placed in the identical position there were before the contract.
W
WAIVE: The act of exercising a waiver (see Waiver).
WAIVER: The voluntary, intentional relinquishing or giving up of some known right.
WARRANTEE: One to whom a warranty is given.
WARRANTY OF MERCHANTIABILITY: Implicitly represents that a product is reasonably fit for a general purpose.
WARRANTY: A promise that a statement of fact is true.
WITNESS: One who signs his name to a document, not as a party to the agreement, but rather for the purpose of establishing the authenticity of the signature of a party to the agreement.
WORK INJURIES: Those which arise out of and in the course of gainful employment regardless of where the accident occurs. Excluded are work injuries to domestic servants and injuries occurring in connection with farm chores which are classified as home injuries.
WORKERS COMPENSATION: State and Federal law that insure the injuries of workers hurt on the job.
WORKERS: All persons gainfully employed, including owners, managers, other paid employees, the self-employed, and unpaid family workers, but excluding domestic servants.
X
Y
Z
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Betty van der Smissen Lecture: Risk Management And Legal Liability
Posted: April 4, 2011 Filed under: Uncategorized Leave a commentDescription
Date: April 22, 2011 Time:1:30pm EST
This webcast will focus on legal issues related to parks and public lands. Each presenter will focus on a legal issue for 35 minutes followed by 10 minutes of question and answer.
About the Presenters
Reb Gregg, from Houston, Texas, is a leading attorney, lecturer and writer in legal liability issues for adventure, education and recreation based outdoor programs.
Jim Moss, from Denver, Colorado, is an attorney, professor, speaker, writer and expert witness specializing in outdoor recreation law.
Background
Beginning in 1955, Dr. van der Smissen’s career in higher education defined her professional life by integrating teaching, research, service, and mentoring of both faculty and students until the final days of her life. Her expertise in risk management and legal liability made her one of the foremost authorities in the country, and she cherished working with her law colleagues and loved debating the issues of the day. In that spirit, Reb Gregg and Jim Moss, two of Betty’s esteemed colleagues, will present and debate selected legal issues in outdoor recreation in a lively, entertaining, and educational format.
Dr. van der Smissen impacted the lives of many students, faculty, and professionals in recreation and made significant contributions to the recreation profession over her lifetime. Please consider tuning in to this webcast to honor her legacy.
Registration is Free if you do not need any CEU’s.
Cost is $15.00 if you need CEU’s.
Go here to register.
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WHISTLER BLACKCOMB INTRODUCES GUEST HEIGHT RESTRICTION
Posted: April 2, 2011 Filed under: Uncategorized Leave a commentPolicy Implemented To Accommodate High Snow Levels
WHISTLER, BC, April 1, 2011 – Whistler Blackcomb announced today a new height restriction for all skiers and riders after record breaking snow this season.
From today onwards, guests shorter than 350cm/11.5 feet, the current snow base, will be prohibited from accessing Whistler Blackcomb without the required equipment: snorkel, a shovel and point of view camera.
The policy has come into effect after 315cm (124inches) of snow fell this past month, the second snowiest March on record. To date, mountain safety teams have been able to identify individuals immersed in the snow after using specialized audio equipment to detect their cries of “woohoo” and “yeehaw.”
“Having too much powder is a big problem here at Whistler Blackcomb,” said John McGroomer, senior vice president of Lame. “When we get a big dump of snow, not only do we encounter a lot of powder frenzy, many powder hounds adopt a ‘no friends on a powder day’ attitude, skiing or riding with only a select few, only reuniting with miffed boyfriends/girlfriends at après.”
Including the record-setting March, Whistler Blackcomb has seen nearly 14 metres (46 feet) of snow so far this season, well above the average annual snowfall of 10.25 metres (33.66 feet). With over 50 days of skiing/riding remaining this season, it’s shaping up to be an amazing spring. In order to take advantage of the great conditions at the best rate, 2011-2012 season pass or EDGE Card are available online. With a purchase guests can upgrade to unlimited spring skiing this season for as little as $49. And that ain’t no April Fool’s joke.
Events happening this spring include the TELUS World Ski & Snowboard Festival April 15 – 24th, 2011. Guests can take advantage of discounts with ski and stay with packages starting from $81 per person, per night. For more information about pass and card products, current weather and snow information, events and activities at Whistler Blackcomb please visit www.whistlerblackcomb.com.
What do you think? Leave a comment.
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Stephenson v. Food Bank for New York City, 2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82
Posted: March 28, 2011 Filed under: Uncategorized Leave a commentStephenson v. Food Bank for New York City, 2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82
Devone Stephenson, Plaintiff, against Food Bank for New York City, FOOD FOR Submission Date SURVIVAL and LAWYERS ATHLETIC LEAGUE, INC., Defendants.
112870/2006
CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY
2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82
October 16, 2008, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: league, team, player, basketball, guy, referees, foul, roster, inactions, online, waiver form, assumption of risk, basketball games, big man, undersigned, own action, assault, fouled, times, summary judgment, cross claims, personal responsibility, participating, covenant, signer, law firm, affiliated organizations, trash-talking, supervision, disability
HEADNOTES
[**1132A] Release–Scope of Release.
COUNSEL: [***1] For Plaintiff: Leonard Silverman, Esq., New York NY.
For Lawyers Athletic League, Defendant: Lora H. Gleicher, Esq., Wade Clark Mulcahy, New York NY.
For Food Bank for New York City and Food for Survival, Defendants: Did not appear on the motion.
JUDGES: Paul G. Feinman, J.
OPINION BY: Paul G. Feinman
OPINION
Paul G. Feinman, J.
Defendant Lawyers Athletic League, Inc. (the League), moves pursuant to CPLR 3212 for summary judgment in its favor. For the reasons which follow, the motion is granted and the complaint is dismissed as are any cross claims asserted against it.
Factual and Procedural Background
The League organizes and schedules basketball games for its member teams. One such team is organized by the law firm of Milberg Weiss Bershad Specthrie & Lerach 1 (the Milberg [*2] Weiss team).
1 The law firm is now known as Milberg LLP.
Plaintiff Devone Stephenson alleges that on March 1, 2006 there was a basketball game between the Milberg Weiss team, of which he was a member, and a team organized by the Food Bank For New York City (the Food Bank team), that is part of the New York Corporate Athletic League (Corporate League). Stephenson had previously played Division I basketball on full scholarship in college, was 6’8″ tall [***2] and weighed 215 pounds. At Stephenson’s deposition he described the events that led up to the incident that resulted in this lawsuit as follows:
Really this whole [Food Bank] team was talking trash, and most of it was directed toward[] me because, one, I was the biggest guy on my team and, two, I was the best player, basically, on the court. But[,] I was trash-talking a little bit back and forth to, you know, some of the guys, maybe the guy the guy [who] was guarding me.
(Not. of Mot. Ex I, Stephenson EBT at p. 18, ll. 19 – 25). Stephenson contends that during the first half of the game, both he and his team captain, David Cohen, asked the referees to stop the other team from trash-talking and to “clean up the game,” however, the referees failed to do so.
The second half of the game, according to Stephenson, “was more [of] the same, a lot of trash-talk, a lot of taunting.” (Id. at p. 25, ll. 22 -24.) Stephenson explained,
The play was still very physical, but in the second half I remember, you know, I made a conscious effort to say to myself, “Listen, D, you are a much better play than these guys.” I am going to let my game do the talking. I said that to myself. I wasn’t going to engage [***3] in any more verbal communication with these guys, I said. Boom, I got the ball, drove to the basket, I got fouled, and I made my mind up I was going to the basket every time, get fouled and get these guys in foul trouble, and foul them up. It was working. I got fouled, I believe, four times consecutively. And in basketball, you know, they won’t allow you to shoot free-throws until you have been you are over a certain foul, almost.
They reached the last foul on the fourth foul, I believe, and so I went to the line actually, I walked to it’s called the top of the key. You gather yourself after you foul, then you take your time and walk.
So, as I’m walking to the foul line, I hear, “Yo, big man. Yo, big man.” I ignored for the first couple of times, but I heard it like he kept saying it, “Yo, big man. Yo, big man,” like at least seven times. So finally, I turn around, and I see one of the Food Bank players, one of the guys that was playing in the game, I don’t know his name, and I turned around and he said, “You better watch those elbows,” and I just dismissed it, turned to talk away. Next thing I knew, I was getting up from the floor.
(Id. at p. 25, l. 24 – p. 27, l. 9). A player for the [***4] Food Bank team who had signed in as “T” had punched Stephenson in the face, fracturing his jaw. Plaintiff’s injuries required treatment by oral surgeons and the wiring of his jaw. Apparently “T” was not an authorized player as he was not a Corporate League member. As a result of this incident, Steve Frenchman, the Commissioner of both leagues at issue, permanently suspended the Food Bank team and its captain Chris Dawson. (Not. of Mot., Ex. H, Frenchman EBT, p. 52).
[*3] Stephenson alleges that the League was negligent in its supervision, operation and control of the basketball game, its league, the referees, and the Food Bank team, and in failing to have a representative at the game to properly monitor the actions of the players.
According to the League, it merely arranges and schedules the basketball games between member teams and provides two referees who are certified by the International Association of Basketball Board of Officials (IABB).
The League asserts that in order to play on a team the team member must fill out a form online, including a waiver provision, which states that the undersigned:
1. Acknowledge and duly understand that each participant will be engaging in activities [***5] that involve risk of serious injury, including permanent disability and death, and severe social and economic losses which might result not only from their own action, inactions or negligence but the actions, inactions or negligence of others, the rules of play, or the condition of the premises or of any equipment used. Further, that there may be other risks not known to us or not reasonably foreseeable at this time.
***
3. Assume all the foregoing risks and accept personal responsibility for the damages following such injury, permanent disability or death.
4. Release, waive, discharge and covenant not to sue the Lawyers Athletic League, Inc., Lawyers Athletic Association, Inc., the Lawyers Basketball League, the New York City Corporate Basketball League, Lawyer Volleyball League and its related Leagues and affiliated organizations, their directors, commissioners, referees, employees, agents, facilities and sponsors from any and all liability to the undersigned, his or her heirs and next of kin for any and all claims, demands, losses or damages on account of injury, including death or damage to property, caused or alleged to be caused in whole or in part by the negligence of Lawyers Athletic [***6] League, Inc. or its related “releasees” enumerated above.
By checking this box the participants have read the above waiver & release, understand that they are giving up substantial rights by checking it and check it voluntarily.
(Lawyers Basketball League – Waiver Form, Affirmation in Support of Lora H. Gleicher, Exhibit H).
In addition, according to the League, in order to play, players must sign a roster before the game begins which states, in pertinent part:
The undersigned understands the risks inherent in playing Basketball and Volleyball and hereby assumes all risks incident to such activities and agrees to indemnify and save harmless The Lawyers Basketball and Volleyball Leagues, The New York Corporate Basketball League, The Lawyers Athletic League, The Lawyers Athletic Association, Inc. and affiliated organizations, their directors, commissioners, agents and facilities against all losses, claims actions, suits, expenses, liabilities, damages or legal fees on account of any loss or injury to persons or property incurred or caused by the acts of the undersigned.
[*4] (Roster, Gleicher Affirmation, Exh. K).
Although Stephenson states that he does not remember submitting the online form, [***7] he does not deny having submitted it, and the League submits copies of both the online waiver and the game roster signed by Stephenson. According to the League, Stephenson thereby waived any claim against the League for his injury.
Discussion
Waivers, such as that submitted to the League by Stephenson, have been found to be valid by the courts. In Bufano v National Inline Roller Hockey Ass’n. (272 A.D.2d 359, 359-360, 707 N.Y.S.2d 223 [2d Dept 2000]) where the plaintiff was injured in a fight with another player during a game, the release signed by the player was upheld as enforceable because it “expressed in clear and unequivocal language the intent to relieve the defendants of all liability for personal injuries … caused by the defendants’ negligence.” The Court also noted that by voluntarily participating in the game, the plaintiff assumed the risk of the injuries that he sustained. See also Castellanos v Nassau/Suffolk Dek Hockey, Inc., 232 AD2d 354, 648 N.Y.S.2d 143 (2d Dept 1996) (by voluntarily participating in a game, an experienced player who signed a waiver form, assumed the risk of the injury that he sustained). Here too, the online release submitted by Stephenson expressly releases the League from injury caused [***8] by any negligence by the League and also indicates that the signer assumes the risk and accepts personal responsibility for not only his own “action, inactions or negligence but the actions, inactions or negligence of others” (Affirmation in Support of Lora H. Gleicher, Exhibit H). Moreover, electronic signatures are valid under New York law (State Technology Law § 304 [2]).
Citing Long v State of New York (158 AD2d 778, 551 N.Y.S.2d 369 [3d Dept 1990]), Stephenson argues that releases for negligence will be closely scrutinized and will not be interpreted to bar claims outside the contemplation of the parties. Stephenson further contends that being hit by another player could not have been contemplated as a risk of the game. In Long, however, the defendant State of New York was not named in the Waiver and Release form. Furthermore, while the document in question stated generally that the plaintiff understood “that there may be risks of injury in connection with the event” and acknowledged that “I am voluntarily assuming any and all risk” (id. at 779), it did not expressly release from negligence even the entity that was named in the release, the Albany Medical Center. Here, in contrast, the release expressly [***9] releases and covenants not to sue the League for its negligence, and the signer also expressly assumes the risk not only of his own actions, but the actions, inactions or negligence of others. The fact that the waiver and release does not expressly mention the possibility of injury resulting from an assault by another player, even a player not properly admitted, does not render it invalid.
Citing Barnum v Millbrook Care Ltd. Partnership (850 F Supp 1227 [SD NY 1994], affd 43 F.3d 1458 [2d Cir 1994]) and Jacob Gold Realty Inc. v Sckoczylas (186 Misc 2d 612, 720 N.Y.S.2d 324 [App Term, 2d Dept 2000]), Stephenson further argues that, in any case, the roster signed by plaintiff at the time of the game, containing the assumption of risk paragraph, does not create an express assumption of risk covering the assault, but rather limits the assumption of risk to those risks that are known and apparent to the player. Plaintiff contends that because the roster was signed after the online waiver form, it supersedes the waiver form. Although it is true that where there is a conflict between the new and old terms, the new language will control (see Jacob Gold Realty Inc. v Sckoczylas, supra), here, there is no conflict [***10] between the on-line waiver and the [*5] assumption of risk and indemnification provision contained in the roster document signed by Stephenson at the time of the game. Thus, the original waiver is not superseded.
Stephenson argues that the League was negligent in its supervision of the referees, who failed to prevent the assault by the Food Bank player. Because the court finds the waiver and release to be valid, it is not necessary to reach the League’s argument that the referees were independent contractors and thus the League was not responsible for the manner in which they refereed the game.
Accordingly, it is hereby
ORDERED that the motion for summary judgment of defendant Lawyers Athletic League, Inc. is granted and the complaint and any and all cross claims are dismissed as to it with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the remainder of the action is severed shall continue under this index number.
Dated: October 16, 2008
New York, New York J.S.C.
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Posted: March 21, 2011 Filed under: Uncategorized Leave a commentRecreational Equipment Incorporated, REI, the big nationwide outdoor co-op held liable for injuries of a bicycle branded as its own.
Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351
Disclaimer. I’m a member of REI for more than 40 years. (I signed up when I was 4!).
This case received a lot of press because the plaintiff died in an avalanche less than a week before the Washington Appellate Court handed down this decision. S As usual, the reports left me confused so I went searching for the decision.
I think this decision is the first product liability case where the plaintiff won on a motion for summary judgment I’ve ever read. Summary judgment is a motion granted by the court based on written motions or in some cases limited oral argument. Normally, the issues in a product liability case are too complex for this type of resolution. REI, lost before it had a chance to argue its case, to some extent.
The case stems from a front fork on a Novara bike allegedly failing. Novara is the trade name for bikes sold by REI. In this case, the bike was manufactured by Aprebic Industry Company, Ltd. Aprebic was not brought into the case. Under Washington Product Liability ACT (WPLA), the retailer is liable for product liability claims if the product is sold under the retailer’s name. Because Novara was the trademark name of REI, then REI was liable for the defects.
The WPLA differentiates between the liability of a manufacturer and that of a retailer.
The WPLA distinguishes between and imposes different standards of liability on manufacturers and product sellers for harm caused by defective products. See RCW 7.72.030, .040. As a general rule, manufacturers of defective products are held to a higher standard of liability, including strict liability where an injury is caused by a manufacturing defect or a breach of warranty. RCW 7.72.030(2). 2 In contrast, product sellers are ordinarily liable only for negligence, breach of express warranty, or intentional misrepresentation.
This difference is major. If REI was not the retailer the plaintiff would have had to prove that REI was negligent. A manufacturer can be held liable for a strict liability claim which limits the defenses available to the defendant. This difference made it easier to win the lawsuit against REI.
REI also argued that the actual manufacturer, Aprebic, should be held equally or vicariously liable for the defects and the damages. However, the court held that for this aspect of the case, whether or not Aprebic was liable did not matter. REI was liable and that was all that mattered to the court and subsequently to the plaintiff. REI and Aprebic could sue each other later to determine who owes who money.
The motion for summary judgment was based the strict liability claim. Remember in this case, although REI is only a retailer, by branding the product with its name, it is now held to the liability of a manufacturer.
Washington by statute defines the liability of a manufacturer if found liable for strict liability as:
A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s [*9] express warranty or to the implied warranties under Title 62A RCW.
(a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
The standard of manufacturing in this case was simple proof that the product was not reasonably safe. That is a very low standard to be proved by the plaintiff.
The plaintiff and defendant hired expert witnesses. The plaintiff’s expert witness opined that the front fork was not manufactured correctly. The plaintiff’s expert stated several specific issues with the fork that he found were the cause of the failure that caused the accident.
REI’s expert was not as specific in his findings from the way the Washington Appellate Court quoted him. The court quoted him using the following terms and phrases: “…there is presently insufficient information to rule,” “the nature of the fracture was not determined” and “that additional laboratory testing should be conducted.” This hesitancy or non-specific language in the defendant’s expert witness report was grasped by the court as proof the expert witness of the plaintiff was correct.
So?
If you are a retailer you should understand the strict liability laws of your state to see how you are defined for products you brand with your name. In any case, you need to make sure that all products that come into your store are manufactured correctly and are not defective. In many cases, you may not be able to do that, such as the case a carbon fiber front fork.
If you are using third parties to manufacture products for your store you may want to have an agreement outlining the liability of the parties. You should also receive indemnification for product liability claims when you have no part of the manufacturing process. This means receiving more than a certificate of insurance. Most certificates of insurance simply prove the person providing the certificate has insurance. Not that the insurance policy is going to be available to use to pay claims.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Outdoor Recreation Insurance, Risk Management, and Law
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Indiana University Department of Recreation, Park, and Tourism Studies presents the inaugural lecture series honoring the legacy of Dr. Betty van der Smissen
Posted: March 18, 2011 Filed under: Uncategorized Leave a commentFriday, April 22, 2011 at the Indiana Memorial Union on the Bloomington campus.
Press Release/Marketing Statement
March 10, 2011
Indiana University Department of Recreation, Park, and Tourism Studies presents the inaugural lecture series honoring the legacy of Dr. Betty van der Smissen (M. S. 1954, Re. D. 1955) on Friday, April 22, 2011 at the Indiana Memorial Union on the Bloomington campus.
Beginning in 1955, Dr. van der Smissen’s career in higher education defined her professional life by integrating teaching, research, service, and mentoring of both faculty and students until the final days of her life. Her expertise in risk management and legal liability made her one of the foremost authorities in the country, and she cherished working with her law colleagues and loved debating the issues of the day. In that spirit, Reb Gregg and Jim Moss, two of Betty’s esteemed colleagues, will present and debate selected legal issues in outdoor recreation in a lively, entertaining, and educational format.
Reb Gregg, from Houston, Texas, is a leading attorney, lecturer and writer in legal liability issues for adventure, education and recreation based outdoor programs. Jim Moss, from Denver, Colorado, is an attorney, professor, speaker, writer and expert witness specializing in outdoor recreation law.
Attendance at the presentations and debate are free.
Both presentations are being simultaneously web cast beginning at 1:30 p.m. (EDT) on April 22, 2011 as part of the Department’s professional learning system powered by the Eppley Institute for Parks and Public Lands. The web cast will be available to anyone interested in continuing professional training, and .1 CEUs are available for attendees with payment of a nominal fee. Interested individuals can register for this webcast at www.eppley.org in the Course Catalog under the Safety (Facility Management) category.
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$500 MINI-GRANT APPLICATION for K-12 CLASSROOM TEACHERS
Posted: March 12, 2011 Filed under: Uncategorized Leave a commentStrengthening Colorado’s Water & Forest Education Connections.
$500 MINI-GRANT APPLICATION for K-12 CLASSROOM TEACHERS
Do your students understand the connection between healthy forests and healthy water?
Funding is available from the Colorado State Forest Service and the US Forest Service to support education that makes the connection between forest conditions and water quality/quantity by getting kids out in nature for hands-on, inquiry-based environmental learning!
Ten $500 mini-grants will be awarded to Colorado K-12 classroom teachers to enhance forest and watershed education experiences for their students.
Eligible teachers must have attended a forest or watershed workshop, class, or training in the past three years, such as those listed on page 2 of this application.*
Please submit your completed online application by 5:00pm on MONDAY, APRIL 4, 2011 at http://www.surveymonkey.com/s/S7PW6TS
Selected applicants will be notified via email by MONDAY, APRIL 18, 2011.
Checks will be made out to and mailed to your school.
You must spend the awarded grant funds by SEPTEMBER 30, 2011.
What do you think? Leave a comment.
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Colorado Division of Wildlife and Colorado State Parks to combine July 1, 2011
Posted: March 11, 2011 Filed under: Uncategorized Leave a commentDENVER — The Colorado Division of Wildlife and Colorado State Parks would merge into a new agency under one board and one administration on July 1 under legislation that will soon be submitted to the General Assembly, Gov. John Hickenlooper told a joint meeting of the Colorado Wildlife Commission and the State Parks Board today.
Addressing the joint meeting in the Hunter Education building on the Division of Wildlife campus, the Governor said the merger is part of his overall effort to make state government more effective and efficient. He recalled that in the 1960s and early 1970s, Colorado’s state parks and wildlife programs were once managed by a single agency.
“This will be a challenge for all of us,” Hickenlooper told the Commission and Board. “What will make this successful is peoples’ willingness to work together as we strive for effectiveness and ways to be more efficient. We will need to find common paths, to bring questions and concerns to surface and to deal with them ways that provide assurances to employees while helping us avoid making cuts that would be very painful.”
The Governor said he envisions a single agency that would support the gamut of wildlife and outdoor recreation opportunities while also managing a suite of properties that offer everything from active recreation near population centers to hunting and fishing in less-developed areas.
“Our parks system provides an entry-level opportunity for our citizens to experience the outdoors,” Hickenlooper said. “If we don’t have that, we’re putting long-term support for wildlife at risk.”
Department of Natural Resources Executive Director Mike King said the bill the administration will soon introduce would combine the Wildlife Commission and Parks Board and create the new agency by July 1. Sen. Gail Schwartz, D-Snowmass Village, Sen. Mary Hodge, D-Brighton, Rep. Jerry Sonnenberg, R-Sterling and Rep. Cheri Gerou, R-Evergreen will sponsor legislation to authorize the consolidation.
A second bill that would make the necessary modifications to state statutes is anticipated to be introduced in January 2012. Teams of employees from the two agencies would be asked to help develop the new organizational structure, he said.
“We’ve seen efforts before where outside consultants came in to tell us what the structure should look like,” King said. “We’ve already got the talent we need to do this in these two agencies. They know what values need to be preserved. We’re going to bring them together and ask them to chart the future.”
Several other Western states operate combined parks and wildlife agencies, including Montana, South Dakota, Nebraska, Kansas and Texas. Washington and Oregon are also currently in the process of combining their wildlife and parks programs. King said that 39 state parks offer fishing while 32 offer hunting opportunities and that wildlife revenues can be directed to parks for expenditures that primarily benefit wildlife habitat, wildlife viewing or other wildlife-related pursuits.
Both the Wildlife Commission and the Parks Board said they applauded the Governor’s decision to address the situation facing State Parks and pledged to work to build the new agency.
“During the recovery of economy nationwide, no issue is more challenging than the problems facing state local government,” said Parks Board member Bill Kane. “We stand ready and willing to do what can to make a successful endeavor.”
Earlier in the meeting, Division of Wildlife Director Tom Remington briefed the Wildlife Commissioners on the 2010 harvest statistics. Hunters harvested a total of 48,018 elk, up slightly from 2009. Last year, cow elk represented 54 percent of the harvest. About half of the bulls harvested were taken by hunters who bought over-the-counter licenses, rather than applying through the limited license draw.
“We continue to harvest more elk in Colorado every year than most other states have,” Remington said. In 2010, hunters harvested 12,301, topping the 12,000 mark for the first time. Remington said the harvest showed the Division’s efforts to work with private landowners to increase hunting opportunity is paying off.
Deer harvest in 2010 was also up slightly. Hunters took a total of 34,768 deer in 2010. About half of the hunters during rifle seasons filled their tag, showing that Colorado continues to offer a tremendous opportunity for hunting quality mule deer, Remington said. He added that the deer population appears to be rebounding well from the harsh winter of 2007 and 2008.
In other action, Wildlife Commissioners reviewed draft language for a new regulation prohibiting the hunting, harassment or take of black bears in their dens and a regulation eliminating the $5 permit for hunting Greater Prairie chicken, though a small game license would still be required. Both regulations could be finalized at the May Commission meeting in Salida.
Commissioners also approved a surface use agreement for natural gas development at the James Mark Jones State Wildlife Area in South Park and denied a citizen rulemaking petition requesting that the Commission revise regulations pertaining to sponsorship requirements for wildlife rehabilitators.
During the afternoon session, Commissioners received a presentation on the hydrology of the Colorado River and the Wildlife Commission’s role in reviewing water development plans proposed by Denver Water and the Northern Colorado Water Conservancy District.
Wildlife Commissioners also unanimously reelected Chairman Tim Glenn, Vice Chairman Robert Streeter and Secretary Mark Smith to serve for the next year.
On Friday, the Wildlife Commission meets with the boards of the Colorado Cattlemen’s Association and the Colorado Farm Bureau in the Bighorn Room at the Colorado Division of Wildlife’s headquarters. The joint meeting, held annually, is scheduled to run from 9 a.m. to 12 p.m.
The Wildlife Commission meets monthly and travels to communities around the state to facilitate public participation in its processes. In 2011, the Commission will meet in Meeker, Salida, Grand Junction, Montrose, Alamosa, Steamboat Springs, Pueblo, Yuma, and Fort Collins. The first three meetings of 2011 have been held in Denver.
The Colorado Wildlife Commission is an 11-member board appointed by the governor. The Wildlife Commission sets Division of Wildlife regulations and policies for hunting, fishing, watchable wildlife, nongame, threatened and endangered species. The Commission also oversees Division of Wildlife land purchases and property regulations.
Information about the Wildlife Commission, including meeting agendas, can be found at http://wildlife.state.co.us/WildlifeCommission/ .
For more information about Division of Wildlife go to: http://wildlife.state.co.us.
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A long memory of past accomplishments only seems to reduce the chances of future ones.
Posted: March 11, 2011 Filed under: Uncategorized Leave a commentA long memory of past accomplishments only seems to reduce the chances of future ones.
What do you think? Leave a comment.
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Assistant Scoutmaster Suing for tree falling on his tent.
Posted: March 8, 2011 Filed under: Uncategorized Leave a commentIf you are tall standing in the woods and eventually die, you fall down. Don’t you think that is expected?
A man is suing the Boy Scouts of America for the loss of a leg after a tree fell on him while he was sleeping. That is terrible, no doubt.
However, I am amazed at the number of suits about trees falling now days. Trees and branches have been falling forever. Jack London wrote about trees falling in 1903, and I’m sure other authors have done so earlier.
This is the third suit I’ve found recently about trees falling in the woods, and it is up there with lawsuits about bears and moose. At what point do people realize they are leaving the city and going into the country? The country is different than the city. The city was built by man, and the wilderness was not. Sue the builder!
The article says the rescue of the man was difficult. What do you expect he’s at a camp in a tent in the woods? It’s not called camping if you can drive up to the spot in a car….. Well maybe some people call that camping.
At what point are we going to take kids camping in a park and then eventually in buildings because it is too dangerous outside. Trees may fall down!
See Man who lost leg sues Boy Scouts
For other suits about trees falling see:
If a tree falls in the woods, is there someone around to start a lawsuit?
As soon as someone appoints me God, then and only then, will I be responsible for the trees around the lake.
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Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp
Posted: March 7, 2011 Filed under: Uncategorized Leave a comment
EPA accepting grant applications for Environmental Education Projects
Posted: March 4, 2011 Filed under: Uncategorized Leave a commentWASHINGTON – The U.S. Environmental Protection Agency (EPA) is accepting grant applications for $1.9 million in funding for environmental education projects and programs. The purpose of the grants is to promote environmental stewardship and help develop knowledgeable and responsible students, teachers and citizens. EPA expects to award at least 20 grants nationwide ranging from a minimum of $15,000 to a maximum of $100,000 and will accept applications until May 2, 2011.
The grants provide financial support for innovative projects that design, demonstrate, and/or disseminate environmental education practices, methods, or techniques. Projects should involve environmental education activities that go beyond disseminating information.
EPA will be hosting two conference calls for potential applicants interested in additional information about the application process. The conference calls will take place on March 21, 2011 at 11 a.m. Eastern Daylight Time (EDT) and April 6 at 2 p.m. (EDT). To participate in the conference calls, dial: 1-866-379-5082, and use conference ID number: 48699133 for the call on March 21. Use conference ID number: 48696117 for the call on April 6.
The Environmental Education Grant Program provides funding to local education agencies, state education or environmental agencies, colleges or universities, not-for-profit organizations, or noncommercial educational broadcasting entities. Tribal education agencies, which are controlled by an Indian tribe, band or nation, may also apply, including a school or community college.
Since the program began, EPA has provided more than $50 million in funding to more than 3,000 agencies and organizations.
More information on eligibility and application materials:
http://www.epa.gov/enviroed/grants.html
What do you think? Leave a comment.
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Hiking & sightseeing guides needed for Grand Canyon.
Posted: March 4, 2011 Filed under: Uncategorized Leave a commentAngel’s Gate Tours is hiring
Angel’s Gate Tours is looking for experienced Grand Canyon guides to lead sightseeing tours, day hikes and the occasional backpacking trip in Grand Canyon. We are specifically recruiting experienced Grand Canyon boatman and other Grand Canyon backcountry professionals. Please contact us if you meet the following requirements:
• Minimum WFR certified, with CPR. (More advanced med certs are also acceptable).
• Good driving record. (1 minor ticket is usually OK)
• Must be able to pass Arizona DOT physical (this is pretty simple, basically it verifies that you can see, hear and move well enough to drive a vehicle).
• Outstanding Grand Canyon knowledge. (You know your schist from Shi-nola, and can present complex material in an entertaining manner).
• Hiking experience on all South Rim trails.
This is an excellent opportunity for Grand Canyon backcountry professionals that need to spend more time in town due to family, children, dog issues or other constraints. The majority of our tours and hikes depart from and return to Flagstaff daily. Please visit our website at http://www.SeeGrandCanyon.com and call (928) 814-2277 to schedule an interview. Angel’s Gate Tours is an EOE.
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I like the Chilean President!
Posted: March 1, 2011 Filed under: Uncategorized Leave a commentAsked if he was going to change his life now that he was president and give up “risky sports,” he said no.
Sebastian Pinera, President of Chile loves skydiving, scuba diving, mountain climbing and river rafting. You have to like a politician like this all ready.
President Pinera said he is not going to change his ways just because some people think he should play it safe. He said “”one can’t change his way of being.”
See Chile’s president: I won’t give up risky sports
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REI Recalls 160 Novara Fusion Bikes
Posted: February 26, 2011 Filed under: Uncategorized Leave a commentRecreational Equipment Inc, (REI) is recalling about 160 of its Novara Fusion bicycles because the alloy steerer tube could separate from the fork causing the rider to lose control and posing a fall hazard to consumers.
The retailer has received one report of a steerer tube detaching. No injuries have been reported.
This recall involves Novara Fusion bicycles with serial numbers U95Y07321, U96Y28393, or in the sequential range of the last four digits U96Y28876 through U96Y29128. Serial numbers are located on the underside of the bike. The espresso-colored bicycles were sold in two styles, the Step Through and the Fusion. The Step Through was sold in extra small/small, while the Fusion was available in medium, large, and extra large.
Made in Taiwan, the bikes were sold nationwide from November 2009 to November 2010 for between $600 and $900.
The Consumer Product Safety Commission is still interested in receiving incident or injury reports at http://www.safetyproducts.gov that are either directly related to this product recall or involve a different hazard with the same product.
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Adventure Research Symposium Call for Abstracts
Posted: February 25, 2011 Filed under: Uncategorized Leave a commentIndiana University May 2-3, 2011
Adventure scholars,
Submissions are currently being accepted for the 6th installment of the Adventure Research Symposium. Graduate students conducting research or inquiry (empirical or theoretical) in adventure from within the disciplines of outdoor education, recreation, leisure, therapy, education, sociology, and psychology are encouraged to submit abstracts for review. Submissions from faculty, post-doctoral, and organizational researchers are open to review; however, due to the nature of the conference graduate work will be provided primary consideration.
We hope that you will consider the following:
a) submit an abstract,
b) pass along this information to graduate students conducting research or inquiry in adventure, and
c) join us in May for the symposium!
Feel free to respond to this email with any questions you may have regarding the submission process or nature of the symposium. A detailed schedule will be made available on the Indiana University HPER-RPTS website (http://www.indiana.edu/~recpark/index.shtml) in mid-March. You will also be able to keep track of event details on Facebook, as an event page will is in development – simply search for “adventure research symposium” in the coming weeks. We hope to see you in May!
CALL FOR ABSTRACTS
For the 6th biannual
Adventure Research Symposium
Indiana University May 2-3, 2011
The Adventure Research Symposium (ARS) is a research forum for graduate students in the fields of adventure and outdoor education/recreation. The goal of the symposium is to provide developing scholars in the adventure research fields with a forum to disseminate their original ideas in both a supportive and peer-reviewed setting. The symposium is free of charge, and is held in conjunction with Indiana University School of HPER, department of Recreation, Park, and Tourism Studies. Accepted abstracts from the symposium will be published in a special issue of The Illuminare, a student-run journal in the fields of recreation and leisure.
Submissions for the ARS are now being accepted, and will be blind peer-reviewed and judged for quality of scholarship and relevance to the study of adventure. Abstracts may be accepted, accepted pending revisions, or not accepted due to methodological flaws, failure to adhere to abstract guidelines, etc. Presenters will be notified via email by March 12, 2011. Presenters will be allotted 20 minutes to present their work, followed by five minutes for questions.
Abstract Guidelines:
1. Abstracts for submission must be no longer than 1,500 words in length including title and references. Formatting should follow APA 6th edition, unless otherwise noted below.
2. Abstracts must have one-inch margins, be single spaced, and be written in Times New Roman 12-point font. Titles and headings must be in bold. The document must be submitted as a MS Word file, and have all identifiable material removed.
3. Research and theoretical work submitted to ARS must not have been presented in a public forum elsewhere (a classroom or thesis defense is fine).
4. Empirical abstracts must have appropriate subheadings, i.e., introduction, literature review, methods, results, and conclusion. Abstracts of a theoretical nature should have appropriate subheadings that maintain the flow of the piece.
5. Abstracts that do not meet these requirements will not be considered.
In a separate file, please include the following contact information:
1. Principle author’s full name, institution, email address, mailing address, and phone number. The principle author should be the graduate student presenting at the symposium.
2. Title of the abstract.
3. Name and institution of any co-authors.
Submission Deadline: February 21, 2011.
Send the electronic submissions (with ARS Submission as the email heading) to: Franklin Vernon fvernon@indiana.edu
For questions or information please contact ARS co-chairs Franklin Vernon (fvernon@indiana.edu), Jillisa Overholt (jroverho@indiana.edu), or Seann Conklin (saconkli@imail.iu.edu).
Jill Overholt, M.S.
Associate Instructor/Ph.D. Student
Department of Recreation, Park and Tourism Studies Indiana University – Bloomington, HPER 133 jroverho@indiana.edu
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message: signoff sprenet. For further information about managing your account, go to http://www.nrpa.org/content/default.aspx?documentId=1020
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The Harper Lee Prize for Legal Fiction
Posted: February 25, 2011 Filed under: Uncategorized Leave a commentTo honor the 50th anniversary of the publication of To Kill a Mockingbird, the University of Alabama School of Law and the American Bar Association Journal have partnered to create “The Harper Lee Prize for Legal Fiction.” In the spirit of To Kill a Mockingbird, the prize will be given to the published book-length work of fiction that best exemplifies the role of lawyers in society, and their power to affect change. Deadline for entries is April 8. Click here for entry form and details.
An entry consists of the following:
- Entry form, signed by both the author and a representative of the publisher.
- Twelve (12) copies of printed books, or for titles published as e-books only, one electronic file that we may copy for all judges.
- The signed form and the books should be sent to:
Harper Lee Prize
The University of Alabama School of Law
P.O. Box 870382 (for mail) or 101 Paul Bryant Drive (for other deliveries)
Tuscaloosa, AL 35487 - There is no entry fee
Winner Details
- The winner will be announced in July 2011.
- The winner will be awarded the Prize at a ceremony in conjunction with the Library of Congress National Book Festival in Washington, D.C., in September 2011.
- Travel and accommodations for the ceremony for the winning author and a companion will be provided.
- The winning title will be entitled to display the Harper Lee Prize logo on the cover of the winning book.
- An excerpt from the winning book may be published in the ABA Journal.
- The book may be sold on the ABABooks.com website if it is selected as a finalist or winner.
Questions
For questions about the Prize, please check the FAQ or contact Lauren Acuff: lacuff@law.ua.edu
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Great article on Good work for the AAC Library
Posted: February 24, 2011 Filed under: Uncategorized Leave a commentSome of you may know about the American Alpine Club library. I try and help out occasionally (mainly by not being a hindrance) I ran across this post by another volunteer at the library. This is from a real volunteer (not a psuedo like me) who actualy is studying library science and works at the library. Pretty neat.
Discovering the Bradford Washburn Archives
Jim
Five new standards are being voted by the ASTM members for measuring tents and sleeping bags
Posted: February 24, 2011 Filed under: Uncategorized Leave a commentThis should allow comparison of apples to apples and other fruit.
The American Society of Testing and Materials members are voting on revised standards for the following items.
Measuring Sleeping Bag Loft
Designation: F1932–98 (Reapproved 2004)
This standard is issued under the fixed designation F1932; the number immediately following the designation indicates the year of original adoption or, in the case of revision, the year of last revision.
The loft (that is, thickness) of a sleeping bag refers to the total thickness of a closed sleeping bag. It is a physical dimension/measurement used for specifications, design, and quality control. Loft, in and of itself, is not to be used to predict the thermal properties of a sleeping bag.
Illustrating the Footprint of a Backpacking or Mountaineering Tent
Designation: F1933–98 (Reapproved 2004)
This standard is issued under the fixed designation F1933; the number immediately following the designation indicates the year of original adoption or, in the case of revision, the year of last revision.
Weighing a Backpacking or Mountaineering Tent
Designation: F1934–98 (Reapproved 2004)
This standard is issued under the fixed designation F1934; the number immediately following the designation indicates the year of original adoption or, in the case of revision, the year of last revision.
Measuring the Headroom of a Backpacking or Mountaineering Tent
Designation: F1935–01 (Reapproved 2007)
This standard is issued under the fixed designation F1935; the number immediately following the designation indicates the year of original adoption or, in the case of revision, the year of last revision.
Measuring Sleeping Bag Packing Volume
Designation: F1853–03
This standard is issued under the fixed designation F1853; the number immediately following the designation indicates the year of original adoption or, in the case of revision, the year of last revision.
If you are in the industry manufacturing sleeping bags or tents you should be a member of the ASTM and on these committees. Although they work being done is extremely professional and well done.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Wilderness & Environmental Medicine Vo 21 No 4
Posted: February 22, 2011 Filed under: Uncategorized Leave a commentMore great articles from the Wilderness Medical Society.
Expedition Medicine – the Risk of Illness and Injury
10% Providone-Iodine May be a Practical Field Water Disinfectant
Mental Health Response to Acute Stress Following Wilderness Disaster
Case Report: Complications of Steroid Use on Mt. Everest
Safety and Efficacy of Attempts to Reduce Shoulder Dislocations by Non-medical Personnel in the Wilderness Setting
Injury and Illness in College Outdoor Education
To become a member of the WMS go to here. To access back issues of the WMS go here.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
Posted: February 21, 2011 Filed under: Uncategorized Leave a commentMoore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
Terry Moore, as father and natural guardian for minor, Thaddeus J. Moore, Appellant, vs. Minnesota Baseball Instructional School, Respondent.
A08-0845
COURT OF APPEALS OF MINNESOTA
2009 Minn. App. Unpub. LEXIS 299
March 31, 2009, Filed
NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
SUBSEQUENT HISTORY: Review denied by, Motion denied by Moore v. Minn. Baseball Instructional Sch., 2009 Minn. LEXIS 415 (2009)
PRIOR HISTORY: [*1]
Hennepin County District Court File No. 27-CV-07-11022.
DISPOSITION: Affirmed.
CASE SUMMARY:
COUNSEL: For Appellant: Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN; and Stuart L. Goldenberg, Goldenberg & Johnson, Minneapolis, MN.
For Respondent: Marianne Settano, Theresa Bofferding, Law Office of Settano & Van Cleave, Bloomington, MN.
JUDGES: Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Connolly, Judge.
OPINION BY: CONNOLLY
OPINION
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant Terry Moore initiated this negligence action in district court on behalf of his minor son, T.J., following an incident in which T.J.’s eye was permanently injured while T.J. was participating in a baseball camp operated by respondent Minnesota Baseball Instructional School. The district court granted summary judgment to respondent. Because appellant had signed a valid agreement releasing respondent from liability for T.J.’s injury prior to enrolling in the camp, we affirm.
FACTS
Respondent operates summer baseball-instructional camps for students of varying ages. T.J. participated in one of respondent’s camps during June 2005. The camp was located on the grounds of the University of Minnesota. On the camp’s final day, students walked from Siebert baseball [*2] stadium to Sanford residence hall to have lunch. When the students were done eating lunch, they were given the option of going to a television lounge in the residence hall or going to the residence hall’s courtyard. T.J. and a number of other students went to the courtyard to play. While in the courtyard, students began throwing woodchips at each other. T.J. sustained a permanent eye injury when he was struck by a woodchip thrown by another student.
After T.J.’s father initiated suit, respondent moved the district court for summary judgment, arguing that an exculpatory clause contained in the camp’s registration materials insulated it from liability. The district court agreed with respondent and granted summary judgment. Appellant contends that the district court erred because there are material facts in dispute. Specifically, appellant argues that there are fact issues as to whether T.J.’s mother signed the emergency medical information form in question and whether the form contained the exculpatory clause as it is described by respondent. Appellant also contends that, if it does exist, then the district court erred in interpreting and upholding the exculpatory clause in the release. [*3] This appeal follows.
DECISION
[HN1] “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
I. It is not in dispute that T.J.’s mother signed the assumption-of-risk-and-release agreement.
Respondent was unable to produce the assumption-of-risk agreement and release signed by T.J.’s mother. Appellant contends that, because of this, there is a material factual dispute about whether T.J.’s mother signed the agreement.
Lee Swanson is respondent’s director. In his deposition, Swanson was asked about the method through which participants sign up for respondent’s camp. He explained that parents have the option of enrolling their children [*4] online, and that T.J.’s mother used this process to enroll her son. In order to enroll her son, T.J.’s mother first went to the camp’s website and filled out the enrollment form online. After filling out the form online, T.J.’s mother clicked on a link that submitted the enrollment form. Respondent has been able to produce a document generated from the camp’s archives as confirmation that T.J.’s mother filled out the enrollment form. Swanson testified that this document was based on information that is sent to the camp electronically upon the completion of a student’s enrollment form. Swanson testified that the camp does not receive the actual completed enrollment form.
Respondent has also produced a spreadsheet containing the roster of students who participated in the June 2005 camp that lists T.J. as a camp participant. Respondents were unable to produce a copy of the online enrollment form that T.J.’s mother filled out; however, they were able to produce a 2007 version of the enrollment form, and Swanson testified it was the same as the 2005 version that T.J.’s mother would have filled out:
ATTORNEY: I’m showing you what has been purported to in your interrogatory answers to be the [*5] summer camp enrollment [form] of ’07 which was the same — there’s a little note that says same as ’05; is that correct?
SWANSON: That’s correct.
ATTORNEY: That’s Exhibit Number 5? 1
SWANSON: Correct.
ATTORNEY: Do you recall anything different about this particular enrollment form from the one that existed in ’05?
SWANSON: That is the same.
1 Exhibit 5 is a copy of the 2007 summer enrollment form.
Swanson was next questioned about an emergency medical form that a student’s parent must sign before that student is allowed to participate in the camp:
ATTORNEY: This is Exhibit Number 7, can you identify what that is for us, please?
SWANSON: This is our emergency medical information form that a parent or guardian has to fill out, it gives specific information about primary contacts, about medical histories, about emergency contacts, it also gives information provided for policy numbers, insurance in case we have to ship the kid to the emergency room for some problem. Also it has a Recognition and Assumption of Risk Agreement that the parent or guardian has to sign along with the camper’s signature.
ATTORNEY: Is this something that’s on-line or is this sent to the parents to sign?
SWANSON: It is available [*6] on-line, but every kid that registers gets an e-mail sent, an attachment with this.
ATTORNEY: Do you have a specific copy of this that the Moores actually signed?
SWANSON: We were not able to retrieve it. Generally I have to destroy these because of valuable information or personal information on these.
ATTORNEY: Okay.
. . . .
ATTORNEY: Do you know for certain that this form was in place as of June of ’05?
SWANSON: Yes.
ATTORNEY: What happens if you don’t get a copy of this form
SWANSON: Kid cannot participate in camp.
ATTORNEY: So it is fair to say that your testimony is going to be that even though you couldn’t find a copy of this if he showed up to camp without his parents signing it he would not be allowed to participant
SWANSON: Correct.
ATTORNEY: So is it fair to say that you can make that assumption then that they did sign this agreement?
SWANSON: Yes.
ATTORNEY Okay. That’s Exhibit Number Seven?
SWANSON: Yes.
(Emphasis added.)
Exhibit seven contains the assumption-of-risk agreement that is at the heart of this appeal. It, under the headline “RECOGNITION & ASSUMPTION OF RISK AGREEMENT,” reads:
I, the undersigned parent/legal guardian of , authorize said child’s participation in the Minnesota [*7] Baseball Instructional School (MBIS) camp. It is my understanding that participation in the activities that make up MBIS is not without some inherent risk of injury. As such, in consideration of my child’s participation in the MBIS camp, I hereby release, waive, discharge, and covenant not to sue the MBIS and any and all Directors, Officers, and Instructors and the Regents of the University of Minnesota and its Directors, Officers, or Employee from any and all liability, claims, demands, action, and causes of action whatsoever arising out of or related to any loss, damage, or injury including death, that may be sustained by my child, whether caused by the negligence of the releases, or otherwise while participating in such activity, or while in, or upon the premises where the activity is being conducted.
The following colloquy occurred when respondent’s attorney questioned T.J.’s mother about the assumption-of-risk agreement:
QUESTION: Okay. I’m showing you what’s been marked Deposition Exhibit No. 2. Do you recognize that document?
ANSWER: I don’t recall it specifically.
QUESTION: Do you recall that that is an emergency medical information — or should I say — let me rephrase that. Do [*8] you recall filling out a health information form and emergency medical form for T.J. to attend the Minnesota Baseball Instructional School in either 2004 or 2005?
ANSWER: I don’t recall.
QUESTION: Okay. Do you deny having filled out an emergency form for T.J.?
ANSWER: I must have.
QUESTION: Okay. I’m going to ask you to look at both pages of that form and see if you recognize that form.
ANSWER: I don’t recall the form.
QUESTION: Okay. I’d like you specifically to read the second page of the form, recognition and assumption of risk agreement, and I’d like you to read that to yourself and tell me if you recognize that.
ANSWER: I don’t recall the form.
QUESTION: Do you deny having filled it out
ANSWER: I do not deny it, I just don’t recall.
(Emphasis added.)
Based on the above deposition testimony, there is no material fact in dispute that T.J.’s mother signed the emergency medical form containing the assumption of risk agreement. Swanson testified that the 2007 enrollment form he produced was the same as the 2005 version that T.J.’s mother would have used. He was able to produce a document generated from archived enrollment data that indicates T.J. enrolled in the camp. He was also able to produce [*9] a roster, containing T.J.’s name, of children who participated in the 2005 camp. Finally, he produced a copy of an emergency medical form that is e-mailed to parents upon completion of the enrollment form. He testified that this was the same version of the emergency medical form that was in place in 2005. He testified that a student would not be allowed to participate in the camp unless the emergency medical form was signed and returned to respondent. The emergency medical form contained the assumption-of-risk agreement with the release language.
T.J.’s mother does not deny filling out the emergency medical form containing the assumption-of-risk agreement. She only states that she does not recall filling it out but admits that she must have filled it out. Because she does not claim that she did not fill out the emergency medical form, and because Swanson testified that she did fill out the form, it is simply not in dispute that T.J.’s mother filled out the form. Appellant argues, in essence, that the district court made a credibility determination in giving greater weight to Swanson’s testimony than to T.J.’s mother. This is not the case because Swanson’s testimony and T.J.’s mother’s [*10] testimony are not in conflict. Swanson testified that T.J.’s mother filled out the emergency medical form. T.J.’s mother’s testimony does not contradict Swanson’s testimony; she only states that she does not remember filling it out, but that she must have filled it out, and that she does not deny doing so.
Finally, the text of the assumption-of-risk agreement is not in dispute. Swanson produced the 2007 version of the agreement and testified that the 2007 version is the same as the 2005 version. Appellant disputes this in his brief, but points to no evidence that contradicts this testimony. T.J.’s father did not present any evidence that the emergency medical form produced by respondent was different from the 2005 agreement that she “must have” filled out. In sum, there are no material facts in dispute. The district court did not make any credibility determinations and did not weigh the evidence. It simply applied the law to undisputed facts.
II. The exculpatory clause releases respondent from liability for any damage resulting from T.J.’s injury.
[HN2] “The interpretation of a contract is a question of law if no ambiguity exists, but if ambiguous, it is a question of fact . . . .” City of Va. v. Northland Office Props. Ltd. P’ship, 465 N.W.2d 424, 427 (Minn. App. 1991), [*11] review denied (Minn. Apr. 18, 1991).
[HN3] It is settled Minnesota law that, under certain circumstances, “parties to a contract may, without violation of public policy, protect themselves against liability resulting from their own negligence.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982). The “public interest in freedom of contract is preserved by recognizing [release and exculpatory] clauses as valid.” Id. at 923. (citing N. Pac. Ry. v. Thornton Bros., 206 Minn. 193, 196, 288 N.W. 226, 227 (1939)). But releases of liability are not favored by the law and are strictly construed against the benefited party. Id. “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id.
Appellant contends the district court erred in interpreting the exculpatory clause contained in the assumption-of-risk-and-release agreement because the events leading to T.J.’s injury were not covered by the exculpatory clause, and because T.J.’s injuries occurred on premises not covered by the exculpatory clause.
Regarding appellant’s first contention, the district court did not err in concluding [*12] that the events that resulted in T.J.’s injuries were covered by the exculpatory clause. Appellant’s argument on this point is that woodchip throwing is not an inherent risk of playing baseball. While this may be true, it is not dispositive in this case. As respondent noted, the “inherent risk” language found in the assumption-of-risk-and-release agreement is extraneous to the exculpatory clause because the sentence containing the “inherent risk” language precedes the exculpatory language. However, more important to the resolution of this appeal is determining what actions are covered by the term “activities” as it is used in the exculpatory clause. Appellant attempts to define the term “activities” narrowly, to mean only activities directly related to the game of baseball. This is contrary to a plain reading of the assumption-of-risk-and-release agreement. The first time “activities” occurs in the agreement, it is used to describe “the activities that make up the MBIS.” It is not limited to the activity of playing baseball; instead, it covers all of the activities encompassed by the respondent’s camp. Lunch-break activities were part of respondent’s camp. T.J. was injured during the [*13] lunch break. As such, the exculpatory clause, under a plain reading, does cover T.J.’s injury.
Regarding appellant’s second contention, the district court did not err in concluding that T.J.’s injuries occurred on premises covered by the exculpatory clause. Appellant argues that the residence hall courtyard, in which the injury occurred, is not part of the “premises” used for specific baseball instructional activities. As explained above, appellant’s definition is too narrow. As used in the assumption-of-risk-and-release agreement, “activities” refers to all of the activities that are part of the camp, rather than just activities directly related to baseball. Because lunch-break activities are part of the camp, those activities are covered by the assumption-of-risk-and-release agreement. As a result, the premises where lunch-break activities occurred are covered by the exculpatory clause.
III. The exculpatory clause does not violate public policy.
Finally, the district court was correct in concluding that the exculpatory clause did not violate public policy. 2
2 Appellant does not contend that T.J. was injured as a result of respondent’s intentional conduct.
[HN4] Even if a release clause is [*14] unambiguous in scope and is limited only to negligence, courts must still ascertain whether its enforcement will contravene public policy. On this issue, a two-prong test is applied:
Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) . . . and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).
Id. (citations omitted).
The two-prong test describes what is generally known as a “contract of adhesion.” Anderson v. McOskar Enters., 712 N.W.2d 796, 800 (Minn. App. 2006). As explained in Schlobohm, [HN5] a contract of adhesion is
a contract generally not bargained for, but which is imposed on the public for necessary service on a ‘take it or leave it’ basis. Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly [*15] disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.
326 N.W.2d at 924-25.
Here, it is not in dispute that the exculpatory clause was part of a take-it-or-leave-it agreement. Neither appellant nor respondent argues that T.J.’s mother had the ability to negotiate the agreement. What the parties do dispute is the nature of the services being offered by respondent. Appellant argues that instructional baseball training is an educational activity and, thus, an essential public service. We disagree. Instructional baseball training is not a service that is either of great importance to the public, or a practical necessity for some members of the public. Furthermore, the services provided by respondent are not essential because there are other avenues to obtain instructional baseball training for children. See id. at 926 ( [HN6] “[I]n the determination of whether the enforcement of an exculpatory clause would be against public policy, the courts consider whether the party seeking exoneration offered services of great importance to the public, which were a practical necessity for some members of the public.”).
Because the [*16] district court did not err (1) in concluding that there was no material fact in dispute; (2) in interpreting the exculpatory clause; and (3) determining that the exculpatory clause did not violate public policy, we affirm.
Affirmed.
American Alpine Club looking for Online Media Intern
Posted: February 20, 2011 Filed under: Uncategorized Leave a commentGreat Opportunity in Golden, Colorado.
Online Media Intern
To see information about the internship go here.
The Online Media Intern works among a dedicated team of climbers to gain lifelong skills in multimedia journalism and online marketing. While intern missions vary from day to day, the AAC gives interns the freedom to design work plans that support both the Club and their future aspirations.
Interns must work from AAC Headquarters in Golden, CO and commit 20 hours/week for four to six months. Interns receive a stipend of $200/month and/or college credit.
Summer applications also accepted.
Download the attached PDF for Online Media Intern Application Information.
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