Stresemann’s Bristlefront seen in Brazil for the 1st time in years
Posted: January 12, 2019 Filed under: Environment Leave a comment
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Today is World Clean Up Day, Make Sure to Do Your Part
Posted: September 15, 2018 Filed under: Environment | Tags: Clean Trails, MsoNormal>[status draft, World Clean Up Day Leave a comment
Take four hours or at least four pieces of litter and put them in the trash. |
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National Clean Up Day is September 15!
Posted: September 14, 2018 Filed under: Environment | Tags: Clean Up Day, Litter, National Clean Up Day, Pick up your trash Leave a comment
New volunteer opportunity – From Sea to Shining Sea |
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Colorado Department of Public Health and Environment Orders Denver Water to Pollute our Waterways. Greenway Foundation Sues to Stop the Practice
Posted: June 14, 2018 Filed under: Environment | Tags: Greenway Foundation, Pollution, Water Pollution 1 Comment
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RELEASE CHECKLIST: What MUST your Release contain to work
Posted: May 1, 2018 Filed under: Environment | Tags: 50th Anniversary of the Wild and Scenic River's Act, Fiftieth Anniversary, Wild and Scenec Rivers Leave a commentIf you are getting ready for your summer recreation business, it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure your release is doing more than wasting paper.
Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical, and they may all be modified based on your activity, program, employees, and ability to undertake the risks. Some changes are always needed based on your activities, your guests and the state or local you are working in.
I’ve divided this checklist into three major parts:
- Required for your Release to be Valid: What is absolutely required?
- Needed: What you should have for your release to be valid in most states.
- What Your Release Cannot Have: What you should never have in your document.
There are some subsections also that are self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.
First make sure your state or the states you operate in allow the use of a release. See States that do not Support the Use of a Release. Then check to see if any of the states you operate in or are based allow a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
Required for your Release to be Valid
Contract: A release is a contract. The legal requirements required in your state for your electronic or piece of paper release to be a contract.
Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document? Courts want to see that the guest knew they were giving up some legal rights.
Parties: You must identify who is to be protected by the release and who the release applies to. That means the correct legal names as well as any business name.
Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against. This is any area that is growing in release law.
Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk. Assumption of the Risk is the second defense after your release in stopping a lawsuit.
Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence? The required language and how it must be explained is getting more specific in all states and yet are different in most states.
Plain Language: Is the release written so that it can be understood? Is it written in plain English?
Venue: Does your release have a Venue Clause?
Jurisdiction: Does your release have a Jurisdiction Clause?
Signatures: Does your release have a place for the signor to date and sign the release? For a contract to be valid, it must have a signature, or if electronic acknowledgment.
Continuing Duty to Inform: Information to complete the continuing duty to inform for manufacturers
Items that may be Needed Dependent upon the Purpose of the Release.
Parental Release: Signature of Parent or Guardian AND correct legal language signing away a minor’s right to sue.
Statement the Signor has conveyed the necessary information to minor child.
Statement the Signor will continue to convey necessary information to a minor child.
Reference to any Required Statute
Signor has viewed the Website.
Signor has viewed the Videos.
Signor has read the additional information.
Notice the Release is a Legal Document:
Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?
Opening/Introduction: Does your release have an opening or introduction explaining its purpose
Assumption of Risk Language
Minor Injuries Noticed
Major Injuries Noticed
Death
Mental Trauma
Signor can Assume Risks.
Risks identified that are not normally Not Associated with Activity.
Drug & Alcohol Statement
Company Right to Eject/Refuse
Signor is in Good Physical Condition.
Able to Undertake the activity
Good Mental Condition
Release Protects Against
Lost Personal Property.
Lost Money
Lost Time
Loss of Life
Medical Bills
Injuries
Indemnification Clause
First party costs
Third party costs
Severance Clause
Enforceability of the Release Post Activity
Breach of Covenant of Good Faith
Language Dependent on How the Release is to be used.
Product Liability Language
Release of Confidential Medical Information
Demo Language
Rental Agreement Clause
SAR & Medical Issues
Permission to release medical information
Medical Evacuation
Medical Release
Medical Transportation
Waiver of medical confidentiality
Waiver of HIV status
Alternative Resolution
Arbitration
Mediation
Items I include in the releases I write.
How Release is to be interpreted.
Statement as to Insurance
Signor has Adequate Insurance.
Incidental issues covered.
Signor has Previous Experience.
Signor Read and Understood the Contract
Agreement that the document has been read.
Agreement that the signor agrees to the terms.
What Your Release Cannot Have
Places to Initial: This just requires more effort on your staff to check and is not legally required.
Small Print: If a judge can’t read it, then it does not exist.
Attempting to Hide your Release: You attempt to hide your release; the judge will act like he or she never found it. The below are all examples of attempting to hide a release.
No heading or indication of the legal nature
Release Hidden within another document
Important sections with no heading or not bolded: No hiding your release
Multiple pages that are not associated with each other: splitting up your release is hiding it.
No indication or notice of the rights the signor is giving up: Some day the statement I did not understand it will resonate with a judge. This prevents that.
Most Importantly, had your Release Updated Recently.
If you have been following this website and reading these posts, you understand you need to have an attorney write your release. That attorney must:
- Understand Release law in your state or the states where you operate.
- Understand your business and operation
- Understand the risks you and your guests undertake.
- Understand the people you are marketing too, to make them guests.
- Make sure nothing in your marketing voids your release.
Nothing in your marketing program should invalidate your release. Does your marketing create liability not covered in your release? Is your marketing directed to the correct people that your release was written for?
When you write your release with your attorney, make sure it is going to work for you.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,
There may be a new dawn in river and stream access in Colorado or access may forever disappear.
Posted: March 14, 2018 Filed under: Colorado, Editorial, Environment, Rivers and Waterways | Tags: bottom, Colorado Water Law, Fishing, Float, Fly Fishing, Recreation, River Bed, Stream Bed, Water Law Leave a commentIn the west, Whiskey is for drinking and water is for fighting.
When I moved to Colorado several decades ago, the biggest shock, I received was learning or attempting to understand Colorado’s water laws. In the Midwest, where I’m from, water was a problem: we worked to get rid of. My property law professor was an expert in field pipes. Water Pipes were pipes put into the ground by the federal government to help drain water from the fields. Any issues were over ownership, control and maintenance of the pipes, not the water that came out of them.
Colorado Water Laws were developed when the only use of water was for drinking, (when no whiskey was around), irrigating crops and mining. Until the last decade, use of water for any other purpose was not only a civil issue subjecting you to a suit for the loss of the water, but possible criminal action for theft.
In 1979 the Colorado Supreme Court Decision People v. Emmert, 198 Colo. 137; 597 P.2d 1025; 1979 Colo. LEXIS 814; 6 A.L.R.4th 1016 was decided, which allowed people to float on the surface, but not touch the sides or the banks of a river. That decision created an uneasiness that has survived, mostly allowing whitewater rafting, kayaking and canoeing in many areas.
Even so, many landowners disagreed with the decision. That disagreement was based on owning both sides of the land or “touching” the bottom of the river. Landowners would build dams so that a kayaker had no choice but to “touch” the bottom to get around the dam. When you saw a dam, you usually saw a sheriff’s deputy at the takeout ready to issue you a ticket.
If a landowner owned both sides of the river another trick, you would see is fencing strung across the river, sometimes with railroad ties attached to prevent boaters from paddling down the river. Most boaters called them death traps because getting caught in one could kill a kayaker.
However, the worst was paddling down the river and hearing shots or looking to the bank and see someone pointing a gun at you. At least once a year I would receive a call from a kayaker who had been threatened at the end of a gun for floating on a river or creek. Generally, there was nothing you could do. The district attorneys did not like prosecuting paddlers for trespass, (after a lot of phone calls form a lot of CO attorneys). At the same time, it was more difficult for them to prosecute a voter for “defending” their property.
The city of Golden took a bold step and was able to convince the Colorado Supreme Court that water had a recreation purpose. That allowed Golden and a dozen other cities to put in kayak parks. Until that decision, the park could be built, but there might not be any water in the park to float a boat.
However, in the rule areas, fencing and guns still ruled. However, this may be coming to a head. In an article published February 3, Who owns the bottom of the river? Lawsuit pitting fisherman against landowner on the Arkansas River could answer the question
a fisherman has taken the issue to court. The article exams a lawsuit filed by a fisherman against a landowner. Read the article to get the facts straight, but generally the fisherman was tired of having rocks thrown at him and threatened by a gun when he enters the river at a public location, a river put in and walks downstream fishing.
The landowner may not own the water, but he owns the bottom of the river, or so he claims. (The landowner was prosecuted for shooting at the fisherman!)
The Utah Supreme Court looked at this same issue several years ago and concluded the state owned the bottom of the river. Utah Stream Access Coalition, v. Orange Street Development, 2017 UT 82; 852 Utah Adv. Rep. 69; 2017 Utah LEXIS 200. However, the legislature then passed a law overturning the decision. See Recreational Use of Public Water on Private Property. You can’t fish on a stream in Utah, but Utah believes you should be able to mine our National Parks and Monuments.
How will the Federal District Court, where this case has been filed, rule? I have no idea; I’m not a court watcher. I want them to rule that standing on a river bottom is not a reason to get shot. I want them to rule that putting your hands down to get over a manmade dam is not a reason to be arrested for trespass. I want them to rule that it is 2018 and tourism is the larger employer, largest generator of jobs and the basis for Colorado’s economy and shooting tourists and locals should not be allowed because they can’t walk on the water.
Go here to read the complaint filed in this case: Complaint
Do Something
Keep your finger’s crossed, not much else we can do except watch and wait for the decision.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog:
www.recreation-law.com
Mobile Site: http://m.recreation-law.com
© 2018 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,
Save Water Public Forum to be heldin Charleston WV January 9
Posted: December 22, 2015 Filed under: Environment | Tags: Safe Water, West Virginia Rivers Coalition Leave a comment
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