New Hampshire court upholds release and defines the steps under NH law to review a release.

Release law is stretched in New Hampshire court to cover injuries from snowmobile driven by employee hitting the plaintiff on the ski slopes.

McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45

State: New Hampshire, Superior Court of New Hampshire, Hillsborough County

Plaintiff: Marcella McGrath f/k/a Marcella Widger

Defendant: NH Development, Inc. and John Doe

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: 2008

The defendant is the owner of Crotched Mountain Ski Area in New Hampshire. The plaintiff signed an application for a season pass which included release language in the application. While skiing one day the plaintiff was hit by an employee of the defendant driving a snowmobile.

The defendants moved for summary judgment based on the release. The plaintiff objected stating the release violated public policy. The plaintiff also argued the parties, when the release was signed, did not contemplate the release would cover negligence claims.

The phrase “did not contemplate” is another way of saying there was no meeting of the minds. For a contract to be valid, the parties to the contract must understand the basic nature of the contract. There must be a meeting of the minds to the contract. This does not mean that all aspects of the contract must be contemplated by both parties, just that the major issues and purpose of the contract are understood.

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

The court reviewed the requirements for a release to be valid under New Hampshire law, which requires the release to:

…(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.

Then the court looked at each of the three requirements. The first, Public Policy in New Hampshire, means the parties did not have a special relationship and were not of disparity in bargaining power. This definition is the original definition of public policy.

Special relationship means where one party had no choice but to deal with the other party to obtain a necessary good or service.

A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”

A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way

Specifically, a special relationship exists between common carriers, innkeepers or public utilities and the public. A Monopoly that supplies goods or services that a person must have is an example of a defendant this definition would fit. Transportation, a place to stay and gas and electric providers have special relationships with the people they serve. This is the original definition of relationship that creates unequal bargaining power where releases are void.

The theory behind public policy was the state must step in to protect the common public from unscrupulous, overbearing or overreaching companies when the public had no choice but to deal with them. This relationship is based on the practical necessity of the goods or services they provide. Without them, life would not be possible or as possible.

Skiing in New Hampshire is not a practical necessity. You can live your life and never ski, in fact, many people do. On top of that the defendant was not the only ski area. Meaning the plaintiff could have gone to any number of other ski areas; the defendant did not force her to visit its ski area nor was she compelled to visit the defendant’s ski area. Consequently, there was no disparity of bargaining power because the plaintiff could have bargained with someone else or not gone skiing and still lived on.

The plaintiff also argued the release was a violation of public policy because it relieved the defendant of statutory compliance with a New Hampshire statute governing the use of snowmobiles. However, the court found the release did not affect the enforcement of the statute. The statute was one outlining the requirements for a state commissioner to make and enforce laws concerning snowmobiles. The release did not alter the commissioner’s ability to do so and would not alter any law or regulation made or the law or regulations affect.

If the release does not violate public policy, then the requirement two requires a review of whether or not the plaintiff or a reasonable person would have understood the exculpatory provisions in the release. For the plaintiff to argue that she did not understand the release, she would have to prove the language in the release was not understandable.

…therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”

The plaintiff did not deny she understood the release; she argued that the release did not cover the precise occurrence that gave rise to here injuries. Meaning the release did not cover injuries from being hit by a snowmobile being driven by an employee of the defendant. However, the law does not require a release to be specific in its language to cover the injury the plaintiff may later claim.

Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”

The release language was broadly written to cover all types of injuries that could occur while skiing. New Hampshire also does not require “magic words” such as negligence to make the release valid or convey a specific risk to the signor.

In reviewing the language the court found the language was broad enough to cover the injury the plaintiff received.

As noted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.”

The final argument made by the plaintiff was the release did not contemplate a snowmobile accident because snowmobiles are not an inherent part of skiing.

In this case, the release did not refer to the inherent risks of skiing, but stated that skiing was a hazardous sport and that injuries are commonplace.

Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.

Consequently, the restrictions that the term inherent would have identified were not there, the language was broad enough to cover the accident the plaintiff complained of.

The case was dismissed based upon the defendant’s motion for summary judgment.

So Now What?

Use of the narrowing term inherent in the release when referring to the risks might have allowed the plaintiff to continue with her claim. Remember inherent is a restricting word and if used in this release, it might have excluded a snowmobile accident from the pool of possible claims. As the release was worded the snowmobile accident was covered.

The bigger issue is the attempt to spread the definition of Public Policy board enough that it would void this release. However, the court did not do that and kept the definition to the original definition that a release cannot protect those monopolies that provide a necessity to the public cannot use a release to limit their liability.

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

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Oregon Supreme Court decision says protection afforded by the OR Recreational Use Statute only applies to landowner, not volunteers or others on the land.

How this will affect Federal Lands I don’t know. Federal volunteer statutes and state volunteer statutes may provide some protection.

However, you are now liable for volunteer work you might have done in the past building trails or putting in bolts or other volunteer work to make recreation in the State of Oregon better.

Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

State: Oregon, Supreme Court of Oregon

Plaintiff: Emily Johnson

Defendant: Scott Gibson and Robert Stillson

Plaintiff Claims: negligence and violation of the American with Disabilities Act

Defendant Defenses: Oregon Recreational Use Statute

Holding: for the Plaintiff

Year: 2015

This is a weird case with a scary outcome. The plaintiff was a blind jogger who stepped into a hole in a Portland public park. The defendants, Gibson and Stillson were employees of the city and had created the hole to fix a sprinkler head.

The plaintiff filed her complaint in Federal District court arguing a Federal claim, creating federal jurisdiction. The City of Portland, the employer of the two defendants filed a motion for substitution and a motion for summary judgment. The motion for substitution says as the employer, the city is the real defendant because the city is liable for the acts of its employees.

The federal court denied to substitute the city for the two defendants stating the city would not be liable based on the Oregon Constitution, and that would leave the plaintiff without a claim. The court did grant part of the cities’ motion for summary judgment saying the Americans with Disabilities Act claim was thrown out but not the negligence claim.

The plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Diversity jurisdiction says that the parties are from different states; therefore Federal Court is the proper court. The second complaint alleged the two defendants were negligent. The city filed another motion for substitution, which was denied.

The two defendants then filed a motion for summary judgment arguing they were immune from liability under the Oregon Public Use of Lands Act (commonly called a Recreational Use Statute.) The federal district court agreed with this defense and dismissed the claim.

The plaintiff appealed to the Ninth Circuit Court of Appeals. Because this was a state law question which no Oregon court had decided, the Ninth Circuit Court of Appeals then asked the Oregon Supreme Court for clarification.

This decision is the Oregon Supreme Court answer to the question presented by the Ninth Circuit court of Appeals. The questions answered by the Oregon Supreme Court with this decision were:

(1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700,1 and therefore immune from liability for their negligence; and (2) if such employees are “owner[s]” under the Act, whether the Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution.

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

The court first looked at the language of the Oregon Public Use of Lands Act and dissected the language to determine if employees of the land owner were protected under the act. The first word reviewed in the act was “Owner.” Owner is defined by the statute so possessor was then reviewed in relation to the land.

A possessor may or may not own the land, but may control the land.

A “possessor” is “one that possesses: one that occupies, holds, owns, or controls.” Webster’s Third New Int’l Dictionary 1770 (unabridged ed 2002). A “possessor” is also “one that holds property without title–called also naked possessor; contrasted with owner.” Id. (emphasis in original). “Possession” means “the act or condition of having in or taking into one’s control or holding at one’s disposal”; “actual physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property”; “something owned, occupied, or controlled.” “Occupy” means “to hold possession of”; “to reside in as an owner or tenant.” An “occupant” is “one who takes the first possession of something that has no owner”; “one who occupies a particular place or premises”; and “one who has the actual use or possession of something.”

In the same paragraph, the court tackled the definition of what it means to occupy the land. After reviewing the definitions, the court determined that an occupant or a possessor must have some control over the land.

Under those definitions, an “occupant,” or a “person in possession of the land” must have some control over the space, and, given the context in which those terms are used, it is likely that the control that the legislature intended is the ability to decide who may use the space or what use may be made of it.

This then evolved into a determination that occupier and possessors of land were similar to lessees and tenants. Control over the land meant more than able to do stuff to the land, but to open the land, close the land and/or prevent others from using the land. The court then referred back to the Oregon Public Use of Lands Act where the term’s occupier and possessor were used to determine that the act did not cover the individual defendants who were employees of the owner, occupier or possessor of the land.

Meaning since the employees/defendants could not open or close the land to others, were just working on the land, the protection of the Oregon Public Use of Lands Act was not available to them.

Using those definitions and that reasoning, the court then carved out an exception to the law, which was not specifically identified, so that the employees of the defendant would not be covered by the Oregon Public Use of Lands Act.

Immunities provided to a principal may, but do not always, extend to the principal’s agents. That is clear not only from the comment to the Restatement quoted above, but also from a line of Oregon cases to which plaintiff calls our attention. In those cases, this court considered whether the sovereign immunity of governmental landowners precluding their liability for defective conditions on their streets extends to agents responsible for the repair of those streets.

So the immunity provided immunity to the land owner, in this case the city of Portland, does not extend to agents or employees of the land owner. The court found the legislature did not extend the immunity provided the Oregon Public Use of Lands Act to agents or employees of the land owner.

Consequently, we conclude that when the Legislative Assembly enacted the Public Use of Lands Act, legislators would not necessarily have assumed that granting immunity to landowners would also grant immunity to their employees and agents.

The court then narrowed the effect of the statute even further limiting its protection to those who hold legal title to the land and those who stand instead of the landowners such as tenants. The court specifically identified employees and non-employee agents as NOT being protected by the statute.

In this case, in deciding whether to imply an extension of the immunity granted to “owner[s]” of land to their employees and agents, we first consider the statute’s text. Significantly, that text indicates that the legislature intended to extend the immunity of those who hold legal title to land to some others who stand in their stead–the owners of other lesser interests in land, including tenants and lessees, and those who qualify as “occupant[s]” or “person[s] in possession” of the land. The text does not, however, disclose a legislative intent to extend the immunity of owners to additional persons who stand in their stead, such as employees and non-employee agents.

The court further reinforced its finding that the immunity provided by the Oregon Public Use of Lands Act only applied to the landowner. The court held that those who do not have the ability to make decisions about the land or to relieve others from liability for the land are not protected by the act.

Thus, it appears that the legislature’s original intent was to relieve those who control the use of their land from responsibility to take affirmative steps to make their property safe for use by others; the legislature did not express an intent to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners who commit negligent acts from responsibility for injuries caused by such acts.

As with other decisions similar to this, the Oregon Supreme Court when out of its way to legally deny the defendant any chance of relief in this case and all future cases similar to this. (See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy to see the same court use the same technique to eliminate releases as a defense in the state of Oregon.)

The Oregon Public Use of Lands Act was amended in 1995 to include in the definition of landowner public landowners such as cities, counties, municipalities.  However, the court found that language did not change the intent of the legislature to limit the protection to landowners and those who stand in the place of the landowner.

The legislature amended the Act in 1995 to make it expressly applicable to public land-owners. Or Laws 1995, ch 456, § 1. However, neither that change nor other changes in the wording of the statute disclose an intent to change the purpose of the statute or to benefit additional classes of persons.

The court held the employees of the city were not protected by the Oregon Recreational Use Statute known as the Oregon Public Use of Lands Act prior to or after it was amended.

Individual employees responsible for repairing, maintaining, and operating improvements on City owned recreational land made available to the public for recreational purposes are not “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act. They are therefore not immune from liability for their negligence. We do not reach the second certified question concerning Article I, section 10, of the Oregon Constitution.

So Now What?

This is a long decision with a short ending. If you are not the landowner or the tenant, you will not be protected from lawsuits by the Oregon Public Use of Lands Act.

A short list of those types of people who are not protected would be all volunteers, commercial guides and outfitters, or contractors hired to work on the land. You are volunteering to guide a group of people down a river trip as a fund raiser and someone is hurt, the Oregon Public Use of Lands Act would not provide any protection for you.

There may be other statutes that protect certain types of people on the land such as the Federal Volunteer Protection Act and any Federal laws for federal land and the Oregon Volunteer Protection Act. However, the strongest law protecting those opening their land for recreation now only protects the landowner. Landowners have nothing to fear; their protection did not change. No protection is afforded the statute now other than the landowner.

Landowners are still going to open their land; they are protected, but no work will be done to make the land better for recreation.

The Worst Part: Stopping now won’t matter. What volunteer work you might have done in the past building trails, putting in bolts or other work on lands as a volunteer can create liability for you now.

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

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

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New Hampshire does not recognize more than one type of negligence, simple or ordinary negligence. Claims for gross negligence, say to void a release, do not exist.

Supreme Court outlines requirements for releases. to be successful including public policy and failure to read the release requirements.

Barnes & a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: John E. and Virginia A. Barnes

Defendant: New Hampshire Karting Association (NHKA), David E. Whitesell, Midway Raceway, Inc. d/b/a Bryar Motorsport Park (Bryar), the World Karting Association (WKA) and International Insurance Company (International)

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: release

Holding: for the defendant

Year: 1986

The plaintiff went to a go kart event. He signed a pit pass which contained a release. While driving he hit another kart on the track that was disabled. There was no indication or warning of the disabled go-kart before the plaintiff hit it.

The plaintiff sued for ordinary and gross negligence. The lower court dismissed the plaintiff’s claims, and the plaintiff appealed.

New Hampshire has three courts; however, the lower two, Circuit and Superior handle different matters. Both the Circuit court and the Superior courts are trial courts so any appeal is to the New Hampshire Supreme Court.

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

The plaintiff claimed the release was barred by public policy; the release was ambiguous and did not apply to the risks, not inherent in the sport. The plaintiff also argued the release did not cover gross negligence.

The New Hampshire Supreme Court first looked at releases in New Hampshire.

Exculpatory agreements call into conflict two tenets of the law.  First, a party should be liable for the consequences of the negligent breach of a duty owed another.  As this court stated in a recent case involving an amusement ride accident, the owner of a place of public amusement “must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual.” Failure to do so will result in liability for injuries proximately caused by the breach of duty.

However, parties may eliminate tort liability by contract.

Contraposed against this basic rule of tort law is the principle that, as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs. Under this rule, parties may bargain for various levels of risk and benefit as they see fit. Thus, a plaintiff may agree in advance that the defendant has no legal duty toward him and thereby assume the risk of injury arising from the defendant’s conduct.

Under New Hampshire law, a defendant must show the release does not contravene public policy, that no special relationship existed between the parties and there was no disparity of bargaining power.

A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care.

Public policy, not identified as such, is held to include common carriers, innkeepers and public utilities. A go-kart operation is not a commercial transport for hire, a place to sleep or a public utility providing gas, electricity or such.

Disparity in bargaining power occurs when the defendant is a monopoly or where the plaintiff has no alternative but to deal with the defendant. “Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement.”

Again, a go-kart facility is not a necessity such that the plaintiff had to negotiate for its life or substance.

Once the public policy argument is out of the way, the issue then becomes whether the plaintiff understood the basics of the agreement.

Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.  Furthermore, the plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement.

This contemplation must not cover the exact issues the plaintiff complains about, but covers a broad range of accidents or injuries the plaintiff may suffer.

Contracts are generally construed against the writer, in the case of a release, construed against the defendant.

…the contract must clearly state that the defendant is not responsible for the consequences of his negligence. As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.

The plaintiff argued he did not read the entire release; however, that does not invalidate the release. The court found he could have if he wanted, therefore, his argument failed based on his own actions.

There was no evidence, however, that Barnes was denied the opportunity to read the body of the release.  “[H]aving failed to avail himself of that opportunity, yet gaining the admission to which his signature was a condition precedent, he cannot now complain that he had no notice of the import of the paper . . . he signed.”

Summing up the public policy argument made by the plaintiff failed as stated by the court

With these principles in mind, we now consider whether the release bars the plaintiff’s claims in this case.  The first question is whether the release is contrary to public policy. The defendants do not fall within any of the commonly-recognized classes of persons charged with a duty of public service. The record indicates that the 1981 Enduro kart races at Bryar were organized by the NHKA, which is associated with the WKA and which manages its races in accordance with WKA rules and regulations.  Although the defendants serve a segment of the public, we cannot say that Enduro kart racing is affected with a public interest.  Provision of racing facilities is not a service of great importance to the public, nor is racing a matter of practical necessity.

Moreover, there was no substantial disparity in bargaining power among the parties, despite the fact that Barnes was required to sign the release in order to use the racetrack. The plaintiff was under no physical or economic compulsion to sign the release.  Since the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength over Barnes or others who sought to participate in Enduro kart racing.

Thus the release was not barred by public policy arguments in New Hampshire.

The plaintiff then argued that the actions against the defendant were grossly negligent and cited cases from other jurisdictions to support its claim. The court simply stated:

These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. “[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law.

There is only one claim in New Hampshire for negligence no matter egregious the defendants’ actions.

The plaintiff then argued the release was only valid for a restricted area of the facility. However, applying the common meaning to the language in the release the court found the language covered the area where the accident occurred.

We find that participation in practice laps on the racing surface comes within the terms of the release.  The restricted areas are defined in terms of physical spaces, not in terms of function, and the reference to “enter[ing] for any purpose” contemplates that the racing surface is a restricted area during practice runs and during the actual race.  Although the plaintiff testified that he had practiced on occasion without signing a release, he signed the release prior to taking a practice lap on the day in question.  One can contemplate that racers are exposed to a variety of hazards while in the racing arena regardless of whether the actual race is taking place.  We believe that the practice run taken by Barnes in preparation for the race later that day may reasonably be construed as part of “participat[ion] in the event.” We therefore uphold the master’s conclusion that the language of the agreement was not ambiguous and that the release applied to practice laps.

A final argument was made that the release was an “illegal tying arrangement.” Meaning the release and the insurance coverage were illegally tied together the plaintiff could not take one without taking the other. The court found this was not the case because no evidence was presented that insurance was a separate charge after admissions.

The trial court decision was affirmed.

So Now What?

New Hampshire law is fairly standard on how it looks at release law, even though the particular language used might vary. What is significant is the Supreme Court has held that New Hampshire does not recognize gross negligence.

Not being able to plead gross negligence limits the ability of the plaintiff to void a release or argue for greater damages. Normally a jury finding the defendant acted grossly negligent includes greater damages, sometimes punitive damages.

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

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Lawclip_image002.jpg

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An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

YMCA summer camp sued in Indiana for sexual assault on a minor by a predator hiding in the woods. The brochure marketing the program specifically outlined how bathroom procedures were to be done. The procedure was not followed in this case, which led to a successful lawsuit.

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

State: Indiana, Court of Appeals of Indiana

Plaintiff: A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually

Defendant: Young Men’s Christian Association of Greater Indianapolis

Plaintiff Claims: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

Defendant Defenses: Release and Superseding or Intervening Cause

Holding: for the Plaintiff

Year: 2013

First, this is a case based on a sexual assault of a minor at a day or summer camp offered by the defendant. The case is awful, ugly, and sad.

Second, the issue of whether or not the release was valid for the minor’s injuries was never part of the case. The issue is how the defendant’s rules created a small issue for the situation that of course blew up when the problem the rules attempted to prevent occurred.

The minor was enrolled in a day camp offered by the defendant. The camp was for kids in kindergarten through sixth grade. On the day of the incident, 20 minors and three counselors went to a park to go rafting. The group arrived at the park around 2:00 PM.

The park was not known for any incidents, and no one was spotted that day that gave any concern to the counselors.

When the rafting began, one counselor was stationed at the start and two counselors at the end. Shortly after the rafting started the plaintiff minor told one of the counselors he had to go to the bathroom. The public restrooms were a 10-15-minute walk away. The counselor instructed the minor to go pee on a bush that was within her view. The counselor new about the defendant’s bathroom policy.

Raab [counselor] instructed A.M.D. [minor] to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

When the counselor turned her attention to the creek to check on the other children the minor disappeared.

Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D.

Once the counselor knew the minor was missing she started screaming his name and looking for him.

The family of the minor filed suit against the defendant YMCA alleging negligence. The YMCA filed a motion for summary judgment claiming:

1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims.

The plaintiff’s opposed the motion for summary judgment claiming four theories:

…1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

The trial court granted the defendant’s motion for summary judgment, and the plaintiff’s appealed.

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

The appellate court started by establishing the elements the plaintiff’s must prove to win their case. Indiana uses a three-part test to establish negligence.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.

Whether or not there was a duty owed is also a 3-part test in Indiana.

…(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled.

The trial court found the defendant owed a duty to the minor, and this issue was not argued during the appeal. The issue then was causation.

We have held that causation is an essential element of a negligence claim. The injurious act must be both the proximate cause and the cause, in fact, of an injury. Generally, causation, and proximate cause, in particular, is a question of fact for the jury’s determination.

Causation can be broken by a superseding and intervening causation. This means a third party or third action caused the real injury or interrupted the chain of events for the original cause so that the defendant is not longer liable.

The doctrine of superseding or intervening causation has long been part of Indiana’s common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Meaning that the action of the predator in attacking the minor was a superseding and intervening cause of action.

However, if the superseding or intervening cause of action was foreseeable by the defendant, then it does not relieve the defendant of liability. The Restatement (Second) of Torts §449, known as the very duty doctrine, provides an example.

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The brochure the defendant created, stated the rules for the camper’s bathroom procedure. This was obviously not followed by the counselor.

No camper is ever alone, and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

There was additional information requiring the day campers to go to the bathroom in pairs. The defendant also had a code of conduct covering restroom supervision.

[Why is a restroom procedure in a code of conduct?]

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Finally, the court found that counselors were instructed to never leave a child unsupervised.

In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety.

The counselor at her deposition testified she knew the procedures.

The court found this information, provided by the defendants own documents and training, showed the defendant knew this type of incident was foreseeable.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.”

The court found three factors were important in the analysis of the issue.

First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm.

Consequently, the appellate court held that whether or not the criminal act by the third party was foreseeable was for a jury to decide.

Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.

The case was sent back to trial for a jury trial to determine if the actions of the third party were foreseeable.

So Now What?

First, it sucks to have a case like this; however, it has a lot of useful information.

Fifteen to twenty children, some as young as kindergartener’s and three adults for an activity around water, the first issue I suspect most of you thought of was, there are not enough counselors.

Second, with all the written documentation that the defendant created, I don’t believe foreseeability will be difficult to find by the jury. In fact, anyone can argue that the paper was created in response to this possibility, and then obviously the issue was foreseeable.

At the same time, how do you get across to the members of your staff the issues at play here without creating your own noose? Some documentation is required. Create it under the write heading, in the right document if needed. More importantly, train your staff. Don’t just throw paper at them.

Documentation is proof of just being lazy over the winter in this type of situation. Probably because the documentation was found in at least three different places, it was “make work” for three different people. Writing rules down over the winter is easy and lasts for years (decades in too many situations). However, training your staff lasts a lifetime.

Look at who you need to understand what you are writing down. In most cases young men and women who seem not to read much but who can absorb a lot of information. If you expect 20 year olds to read a book for a job, you are your own worst enemy. You are only creating documentation that will be used to prove you or your staff was negligent.

Training allows the information to be absorbed in the way necessary and provides the understanding of the rules. Training says this is how you do it, now show me you know how to do it, and then tell me why you do it this way. Training is a pain for you, and your senior staff, but if you want to solve problems and really help the people, your employees, trains them. Let them know why you have to do things this way and then teach them to do things this way.

Think about it. What is going to be more effective. Giving everyone a book to read at night or creating a scenario from this incident and having your staff act it out and go through the issues.

Don’t create documentation because you have nothing else to do over the winter, or you are trying not to train your staff.

Never create documentation just to punish employees. Those will always come back to haunt you. You can’t sue an employee as a defense anyway, except in extremely rare cases, so why create a situation that will come back to haunt you in other ways.

This is a sad case all around.

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

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Under Indiana’s law, you cannot sue based on a product liability claim for what is actually a service. Meaning Wind tunnels and Climbing Walls provides a service in Indiana, they are not products sold to the public.

Product liability claims are difficult to defend against because they have fewer or more limited defenses. Product Liability claims also award more damages than simple negligence claims. Consequently, if you provide a service and thus are not subject to a product liability claim your risk, and exposures are much lower.

That issue saved the defendant in this case because the release used by the defendant was written poorly and did not protect the defendant from the claims.

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15, 479

State: Indiana, Court of Appeals of Indiana, Fifth District

Plaintiff: Jason C. Marsh and Rhonda Marsh

Defendant: Kirk Dixon, Dyna Soar Aerobatics, Inc.,

Plaintiff Claims: negligence (or gross negligence) and product liability

Defendant Defenses: Release and the Indiana Product Liability statute

Holding: for the plaintiff on the release and the defendant on the product liability claim.

Year: 1999

The plaintiff paid to ride in the defendant’s wind tunnel. The wind tunnel was owned by Dyna Soar Aerobatics, Inc., which was owned by Kirk Dixon. Kirk Dixon was the sole owner and officer of Dyna Soar, Inc.

Before riding the plaintiff was told when turned on he would soar 3-4 feet upward in the air. The plaintiff also signed a release before riding the wind tunnel. When the wind tunnel was turned on he shot 15’ in the air and broke his ankle when he landed.

The plaintiff sued for negligence and product liability claims. The trial court granted the defendant’s motion for summary judgment based on the release, and the plaintiff appealed.

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

The first issue the court tackled was a procedural issue. The plaintiff sued for gross negligence and not simple negligence. The defendant argued that because they did not plead negligence and appealed a negligence claim and plead gross negligence but did not appeal a gross negligence claim they should be stopped from arguing a negligence claim of any type.

However, the court found through various arguments that those issues were moot and not at issue.

The next argument was the plaintiff’s claim the release was not sufficient under Indiana’s law to prevent a negligence claim. The court agreed.

Indiana generally supports releases, but requires the language of the release be sufficient to deny the claims being made.

It is well settled in Indiana that exculpatory agreements are not against public policy. Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.”

The language in the release must clearly and unequivocally state what the release is preventing and who is being protected for those claims.  Meaning the release is void if it does not clearly and unequivocally states the release is to protect the defendant from the defendant’s negligence.

This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” We note, however, that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.

The release stated the plaintiff “fully discharged and released” the defendant from all “liability, claims, demands, actions, and causes of action.” Nowhere did it state the release, released D S from its own negligence. Nor would the court interpret the language of the release to cover that. The specific language was needed for the release to work.

We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

The next issue was the product liability claim. The Indiana Products Liability Act defines a manufacturer as the seller of a product, “a person engaged in the business of selling or leasing a product for resale, use, or consumption.”

Ind. Code § 33-1-1.5-2(5). 2 A product is defined as follows:

Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Personality is another name for something owned that is not attached to the land.

The plaintiff argued that the defendant created a machine, which was a product and sold what the machine did. However, the court found that what the plaintiff bought was a service.

A service is not subject to the Indian Product Liability Act.

The case was sent back to the trial court to go forward on the negligence claim of the plaintiff.

So Now What?

Simply put this lawsuit is based on a poorly written release. I repeat myself, but have someone who understands you and your business or program write a release based upon the law where the release will be applied.

Let me put it another way. Unless you wrote a check or paid money for your release, you would probably end up in court. Attorneys provide free releases not as a service, but knowing there are flaws in the document that will allow them to make a lot more money defending against the lawsuit.

If you got your release from a competitor, how do you know, the competitor gave you a good release? If you got your release from the Internet, how do you know it is for your activity, in your state and covers your law?

And if you think, it is not worth your money; figure that you will lose thirty (30) days of work the first year you are sued, 15-30 days each year until trial and probably 45-days the year of the trial. A good release can keep you at work and out of depositions and courtrooms.

The defendant got lucky on the product’s liability claim. Most states have a broader definition of a product. Put in the release that you are providing a service not selling a product if you have any doubts.

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

clip_image002What do you think? Leave a comment.

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

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

 


Colorado Appellate Court rules that fine print and confusing language found on most health clubs (and some climbing wall) releases is void because of the Colorado Premises Liability Act.

Door swings both ways in the law. Ski areas used the Colorado Premises Liability Act to lower the standard of care and effectively eliminate claims for lift accidents in Colorado. Here the same act is used to rule a release is void for accidents occurring on premises. However, the release was badly written and should have been thrown out.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

State: Colorado, Colorado Court of Appeals

Plaintiff: Wendy Jane Stone

Defendant: Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc.

Plaintiff Claims: Negligence and violation of the Colorado Premises Liability Act

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2016

This case is going to change a lot of releases in Colorado, and possibly nationwide. Similar decisions concerning health club releases have occurred in other states for the same or similar reasons. Basically, your have to write a release correctly, or it is void.

Remember the articles about Vail using the Colorado Premises Liability Act to defeat claims for lift accidents? (See Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner and Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?) The same act has been used to void a release in a health club case.

The Colorado Premises Liability Act is a law that tells a landowner (which is broadly defined to include renters as well as landowners indoors and out) how they must treat three types of people on their land or as in this case, a person who is in a health club.

Here the plaintiff had washed her hands in the locker room, and as she was leaving she tripped over the blow dryer cord fracturing her right ankle.

Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

The plaintiff’s injuries arose from her being the land, not for using the benefits of the health club.

The plaintiff sued for negligence and for violation of the Colorado Premises Liability Act. The Colorado Premises Liability Act sets for the duties owed by a landowner to someone on their land based on the relationship between the landowner and the person on the land. Pursuant to an earlier Colorado Supreme Court decision, the Colorado Premises Liability Act provides the sole remedies available to persons injured on the property of another.

The trial court dismissed the plaintiff’s claims based upon the release used by the health club, and the plaintiff appealed.

This decision is new and there is a possibility that it could be appealed to the Colorado Supreme Court and reversed.

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

The plaintiff filed here a complaint with two claims, negligence and breach of the Colorado Premises Liability Act. The court first looked at the negligence claim. The court found that negligence claim was properly dismissed, but for a different reason that the release stopped the claim. Here, the Colorado Premises Liability Act provides the only legal recourse against a landowner, so the negligence claim has no validity.

The PLA thus provides the sole remedy against landowners for injuries on their property established that the PLA abrogates common law negligence claims against landowners.

Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court; therefore, correctly ruled against her on that claim.

When a statute as in this case the Colorado Premises Liability Act, states the only way to sue is under this act, the statute bars all other ways or theories to sue.

The plaintiff’s argument then was the release that was written and signed by the plaintiff only covered the activities in the health club and did not provide protection from a suit for simply being on the premises.

As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room.

The court then reviewed the general rules surrounding release in Colorado law.

Generally, exculpatory agreements have long been disfavored.” Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language.

Under Colorado law, clear and unambiguously language is reviewed based on the lengthy, the amount of legal jargon and the possibility of confusion.

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Colorado has a four-part test to determine the validity of a release.

Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language.

The court quickly ruled that the first three factors were not at issue in this case.

In Colorado, there is no public duty based on recreational services. Recreational services are neither essential nor a matter of practical necessity. The third factor was also met because the defendant did not have any advantage. The plaintiff was free to obtain the services of the defendant someplace else.

The fourth factor provided the issue the case would resolve around, “Whether the intention of the parties was clear and unambiguous.”

The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable.

The court found eight ways the release in this case failed.

First, the release was very small type, dense fine print.

First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

Second, the release was full of confusing legal jargon, including the following terms:

…affiliates, subsidiaries, successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.

This jargon was found to mitigate against the idea the release was clear and simple to understand.

Third, the release, referenced clauses, identified as chapters, which even the attorneys for the defendant found confusing. Nor could anyone explain what the references to chapters referred to.

Fourth the focus of the release was on the use of the exercise equipment. The court pointed out five instances in the release that related to the use of the equipment and none relating to occupation of the premises. Meaning the court found a release must release the claims the plaintiff is complaining of.

The fifth reason was the use of the term “inherent.” (As I’ve stated before and given presentations on, inherent is a limiting term you do not want to use in a release.) The court said the use of this term was only applied under Colorado law to apply to activities that are dangerous or potentially dangerous. A locker room is not inherently dangerous so the term is confusing in this case.

In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands.

The sixth issue the court had was the language between the different release terms was “squirrely.” (In 35 years of practicing law, I have used the term a lot, but never in a courtroom, and I’ve never seen it in a decision.) The way the language referred back to other clauses in the release and attempting to identify what injuries were actually covered created ambiguities and confusion. The defense counsel for the health club admitted the language was squirrely.

The seventh issue was the general language of the release used to broaden the release, (after using the narrowing term inherent). The release was full of “but for” or “but is not” type of phrases. It was an attempt to broaden the language in the release, which only made the release more confusing.

Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive.

The use of these terms created more ambiguity in the release. Specifically, the language created an expansive versus restrictive flow in the release, none of which referenced the locker room.

Based on the above language the court found the release was not clear, unambiguous and unequivocal.

Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

The negligence claim was dismissed, and the claim under the Colorado Premises Liability Act was allowed to proceed.

So Now What?

First remember, this case could still be appealed and changed by the Colorado Supreme Court. However, the logic and reasoning behind the Colorado Appellate Court decision is well laid out and clear. I don’t think these are issues the Colorado Supreme Court is going to take on.

Colorado has jumped onto the release bandwagon I’ve been telling people about for 25 years.  Your release has to be written in English, it needs to be understandable, and it needs to cover everything. Most importantly, it needs to be a separate document with no fine print, no legal jargon and easily read. You can no longer hide your release on the back of an agreement using fine print and expect it to protect you from claims.

Colorado has been a state where releases are rarely over-turned. However, this was a crappy piece of paper that had release language on it. The print was too small; the language was so confusing the attorney for the health club did not understand it and the court pointed this fact out.

Your release needs to be well written, needs to be written by an attorney, needs to be written by an attorney who understands what you do and the risks you are presenting to your guests/customers/participants.

If you are interested in having me prepare a release for you, download the information form and agreement here: information-and-agreement-to-write-a-release-for-you-1-1-17

For more articles on this type of releases found in health clubs see:

Sign-in sheet language at Michigan’s health club was not sufficient to create a release.            http://rec-law.us/28J1Cs8

For articles explaining why using the term inherent in a release is bad see:

Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.   http://rec-law.us/1SqHWJW

 

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Lawclip_image0024_thumb.jpg

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Copyright 2017 Recreation Law (720) Edit Law

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State AED laws may create liability; make sure you understand what your state laws say. Florida, an AED law affecting high schools created liability for the HS.

A Florida statute requiring schools to acquire and train all employees on the use of AED’s, created liability when the AED was not used.

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

State: Florida, Supreme Court of Florida

Plaintiff: Abel Limones, Sr., et al

Defendant: School District of Lee County et al.

Plaintiff Claims: Common Law negligence and breach of a duty required by statute, Florida Statute 1006.165

Defendant Defenses: No duty and Immune under 1006.165 and 768.1325

Holding: for the Plaintiff

Year: 2015

The deceased was a 15-year-old boy who played on a high school soccer team. While playing a high school soccer game he collapsed. His coach ran onto the field and started CPR and was assisted by two nurses who were sitting in the stands.

Allegedly, the coach asked several times for an AED (Automatic External Defibrillator). An AED was located in a storage are at the end of the field. However, no one ever retrieved the AED.

Ten minutes later, the fire department arrived and attempted to revive the student with their AED. That did not work. Twenty-six minutes later, an ambulance arrived and with the application of the ambulance AED and the application of drugs, EMS was able to restore the student’s heart rate.

The plaintiff’s expert witness testified that the 26 minutes without the use of the AED, not having a heartbeat, deprived the student of oxygen, which caused brain damage. The student was left in a persistent vegetative state.

The trial court granted the defendants motion for summary judgment. The plaintiff appealed and the Florida Appellate Court upheld the dismal by the trial court. The Florida Supreme Court then heard the appeal and issued this decision.

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

The Supreme Court of Florida first looked at basic negligence claims pursuant to Florida’s law. Florida’s law applies the same four steps to prove negligence as most other states.

We have long held that to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.

A legal question is one that must be answered by the courts. So whether or not a duty existed, in proving negligence, is first reviewed by the trial judge. Factual questions are reviewed by the finder of fact, most commonly called the jury. Looking at the issue of duty, the court found under Florida Law, there were four sources of duty.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

Rarely do courts define how duties are created. Consequently, reviewing how a duty is created is interesting. The last way, general facts of the case, are how most duties are determined. The plaintiff argues there is a duty because of how others act or fail to act or based on the testimony from expert witnesses. Alternatively, an organization or trade association has published a list of the standards of care, which are then used to prove the duty failed.

The court then must examine if the minimum requirements for a duty have been met.

As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited. The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors.

In this case, the parties were relying on a statute; the Florida Statute that put AED’s in schools and required all school employees to be trained on their use, 768.1325. Once the court determines that a duty existed, then the jury must decide all other issues of the case.

Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law. We have clearly stated that the remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder.

The court then looked into the duty of schools with regard to students. A special relationship exists between a student (and their parents) and schools. A special relationship then takes the duty out from limited if any duty at all to a specific duty of care. Here that relationship creates a duty upon the school to act as a reasonable man would.

As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that a school functions at least partially in the place of parents during the school day and school-sponsored activities.

The duty thus created or established requires a school to reasonably supervise students.

This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students.

It should be noted, however, when referring to “school” in this manner; the courts are talking about public schools and students under the age of 18. Colleges have very different duties, especially outside of the classroom or off campus.

That supervision duty schools have, has five sub-elements or additional duties when dealing with student athletes.

Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury.

Here, several of the specific duties obviously could be applied to the case. Consequently, the court found the school owed a duty to the deceased.

Having determined the duty owed by the school to the deceased the court held that the school had a duty to the deceased that was breached. The use of an AED, required at the school by statute, was a reasonable duty owed to the deceased.

Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now.

The plaintiffs also argued there were additional duties owed based on the Florida School AED statute. However, the court declined to review this issue. Meaning, it is undecided and could go either way in the future.

The defendant then argued they were immune from suit based on the Florida AED Good Samaritan Act. The court then looked at the immunity statute set forth in the Florida School AED Statute. The Statute required schools to have AED’s and have to train all employees in the use of the AED. The court found that employees and volunteers could be covered under the Florida AED Good Samaritan Act. If they used the AED’s they would be immune from suit.

The court in reading the Florida AED Good Samaritan Act found two different groups of people were created by the act. However, only one was protected by the act and immune from suit. Those who use or attempt to use an AED are immune. Those that only acquire the AED, are not immune because they did not attempt to use the AED.

Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used.

That immunity only applied to the use of the AED. Here there was no use of the AED, so the statute did not provide any immunity.

It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under section 768.1325 and such section has absolutely no application here.

The court summarized its analysis.

We hold that Respondent owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes.

So Now What?

So in Florida, a statute that requires someone, such as a school to have AED’s then requires the school to use the AED’s and if they do not, they breach the common law duty of care to their students.

AED laws are going to become a carnival ride in attempting to understand and use them without creating liability or remaining immune from suit. You probably not only want to be on top of the law that is being passed in your state; you should probably go down and testify so the legislature in an attempt to save a life does not sink your business.

It is sad when a young man dies, especially, if he could have been saved. That issue is probably going to trial.

What do you think? Leave a comment.

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

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