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Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                              Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

         $99.00 plus shipping

 

 

 

 

Artwork by Don Long donaldoelong@earthlink.net

 

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Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


Manufacturers Checklist for California Proposition 65

  1. Determine what chemicals are found in all of your products.
    1. Look at your SDS (formerly MSDS) sheets. US manufacturers are placing California Prop 65 info on their SDS sheets. It should say whether or not the chemical needs to be listed as a California Prop 65 chemical.
    2. If the SDS sheets are not available:
      1. Contact your manufacturers and get SDS sheets to avoid OSHA issues.
      2. Contact your manufactures.
        1. Confirm that their products do not contain any chemicals on the California Prop 65 list of chemicals: https://oehha.ca.gov/proposition-65/chemicals
        2. Get an agreement from them that if their product does contain one of the chemicals on the list or someone states that your product containing their product contains the chemicals they will either:
          1. Indemnify you
          2. Take over the litigation or claims and hold your harmless.
    3. If your manufacturer does not know or is not cooperating.
      1. Find a new manufacturer
      2. Send the product to a lab for testing
        1. I am recommending Act Labs: https://act-lab.com/
          1. Contact
            1. Devin Walton: 970 443 7825 dwalton@ad-Iab.com
            2. Michael Baker: (310) 607-0186 ext. 730 mbaker@act-lab.com
            3. Phil Bash: 562 470 7215 info@act-lab.com
          2. I get nothing from Act Lab for the referrals. (They promise me they’ll get me a beer at Interbike, but it will be a cheap one probably!)
        2. You need two things from a testing lab.
          1. You have to trust them.
          2. You have to be able to count on them in court if necessary to back up their results.
        3. I trust Act Lab. They know what they are doing, and they enjoy standing behind their results.
          1. They have testing facilities in the US and China.
  2. Based on your findings
    1. If you have chemicals in some products create the warning label for one of the chemicals found and place it on the product where the consumer can see the label before purchasing.
      1. Place the warning label on your website
      2. Place the warning label in your catalog
      3. Notify all retailers, in and out of California, of the products that must have a warning label on them.
        1. Supply the warning label to those retailers in California carrying products requiring the warning.
    2. If your product does not require a warning label.
      1. Have a beer.
  3. When does California Prop 65 not apply.
    1. If your company has ten of few employees, you do not have to post warnings on the products, however, I still would, see below.
    2. If your products containing the chemicals on the list were manufactured prior to August 30, 2018 you do not have to place the warning label on the product, but I still would, see below.
  4. Why CYA if you don’t have to.
    1. The cost of proving you don’t qualify is going to exceed the cost of complying.
      1. Attorneys and consumers cannot read UPC codes to determine the date of a manufacture.
        1. The cost to you of proving the manufacturing date is going to take time to show how the UPC code shows the manufacturing date. You may also have to supply additional documentation to support this information.
      2. Attorneys and consumers do not know how many employees you have.
        1. Unless you want to send copies of your payroll to law firms proving that you have less than ten employees is nearly impossible.
    2. The cost of proving you do not need the warning label on your product is much greater than the cost of just placing the warning label on the product.
  5. Is the warning label going to stop sales?
    1. California Consumers will not care about the warning label; it is going to be on everything they buy.
      1. Non-California consumers are going to get used to seeing it eventually, and they won’t care.
        1. I have one client shipped a product to Texas with the California warning label and had the consumer return the product because of it. Loss of one sale, that is a lot cheaper both in money and time than a lawsuit from California.

Additional Reading or Links

California Proposition 65 is a nightmare for manufacturers and as usual, manufacturer bad dreams are felt by retailers.    https://rec-law.us/2sKLYXA

Every Manufacturer worldwide selling in California must meet these new Labeling Requirements. New California Proposition 65 warnings will become effective in one year.    http://rec-law.us/2Dni4R2

Downloads

New California Proposition 65 warnings & Retailers II

California Proposition 65

CA Prop 65 Chemical list 5.18

California Proposition 65

California Prop 65 Website

Chemicals Considered or Listed Under Proposition 65    https://rec-law.us/2mCuoC8

About Proposition 65    https://rec-law.us/2M51ULV

New Proposition 65 Warnings    https://rec-law.us/2M6YqbH

If You Need Help

Information and Agreement to Review Your Products and Product Information Foreign Imports    https://rec-law.us/2M8hExw

Information and Agreement to Review Your Products and Product Information Foreign Imports    https://rec-law.us/2M8hExw


California Civil Code § 1668

Cal Civ Code § 1668

Deering’s California Codes are current through Chapters 1-109 and 111-157 of the 2018 Regular Session and all urgency legislation through Chapter 181 of the 2018 Regular Session.

Deering’s California Codes Annotated > CIVIL CODE > Division 3 Obligations > Part 2 Contracts > Title 4 Unlawful Contracts

§ 1668. Certain contracts unlawful

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.


Good Samaritan Laws

The Good, the Bad and the Unknown.

Good Samaritan laws were enacted by states to encourage people to assist injured citizens. The rise in Good Samaritan laws occurred with the rise with automobile accidents causing serious injury. However, the Good Samaritan laws have been stretched, restricted, changed and modified by public opinion leaving most with questions as to how the law is applied.

States enact Good Samaritan laws, and as such there are fifty different Good Samaritan laws, and those laws have been interpreted by the Courts fifty different ways. On top of that, almost a dozen states have enacted AED Good Samaritan laws and there is a Federal AED Good Samaritan law. This article is not intended to be the definitive research study on the issue, rather a general review of the legal issues, and you must check to understand how the Good Samaritan law is going to be applied to you in your state, or the state where you may be acting.

Finally, this is a study of the law. It is not a statement of the moral or ethical issues you may first in a situation where you may be needed to assist someone.

Good Samaritan laws only protect against lawsuits for bad First Aid. Good Samaritan law not to apply to the facts that caused the incident or anything that may apply after the first aid is tendered.

Good Samaritan laws only apply to individuals. Good Samaritan laws do not cover business, corporations or limited liability companies. If you are running an outfitting business and have an injured patron, your employees may incur liability for your organization by performing first aid. No matter what your employees do or how well they perform first aid, the business can still be held liable.

HOWEVER, your employees will incur liability for your business if they do not perform first aid. In the past ten years, three different states have held business liable for not allowing their employees to assist an injured party or for not assisting a Good Samaritan, who was assisting an injured party. In a Connecticut 2006 case, Parekh v. DST Output, 2006 Conn. Super. LEXIS 481, an employer was held liable when it failed to provide adequate medical care for an employee who was suffering an illness and died at work. In a New Jersey case, a business was held liable when it did not allow an employee to assist a patron who was suffering a heart attack. Finally, in a 2006 California court, Soldano v. O’Daniels, 141 Cal. App. 3d 443; 190 Cal. Rptr. 310; 1983 Cal. App. LEXIS 1539; 37 A.L.R.4th 1183 held a business liable when it refused to allow a Good Samaritan to call 911. The Good Samaritan came in from another store and asked to use the telephone to call 911. The business refused to allow the store to do so and injured party was shot. These are extreme cases; however, they show the courts believe that people should assist those in trouble and failing to do so is worse than doing so and messing up.

Good Samaritan laws do not protect anyone involved with the accident or organization where the accident occurred. Employees, who are given the responsibility of dealing with patrons, can be held liable for negligent first aid care for their patrons. Looking at it another way, Good Samaritan protects people passing buy and assisting someone they do not know who is injured. If you have a relationship with the injured or ill person, and the injury or illness occurred while that person was dealing with you, the Good Samaritan law will probably not provide protection. Examples are outfitter and guide statutes that require guides to have a first aid card. Because of the duty to provide first aid that is part of the requirement to have first aid training, there can be no protection under a Good Samaritan statute.

You are not covered by the Good Samaritan law if you placed the injured party in peril. This is also going to eliminate any protection under Good Samaritan laws for guides and outfitters. Because the outfitters and guides took the client out in the backcountry, that is the area of peril, where the guest was injured so the guide and outfitter are liable for the guest injuries.

Most Good Samaritan laws cover physicians the same way they cover any third party. Most Good Samaritan laws do not identify anyone who is not protected by the Good Samaritan statutes and a few specifically identify physicians as protected under the Good Samaritan law. However, that protection is still limited by the requirements set forth above. A physician who works at a hospital, on the staff is an employee or has a duty to everyone at the hospital and as such cannot use the Good Samaritan statutes to protect against a malpractice claim. The malpractice claim itself eliminates the Good Samaritan statutes from protecting you because the mal practice claim requires a relationship between a patient and physician. In a Good Samaritan law situation, the claim would be against an individual against another individual, who may or may not be a physician.

Good Samaritan laws only protect persons performing first aid. One of the big areas that has emerged is what can the Good Samaritan do. The normal answer would be to the extent of their first aid training and slightly beyond. However, that test can no longer be used because many first aid training programs are teaching beyond the scope of first aid. If your training is beyond the scope of first aid, you cannot act to your training because that exceeds the definition of first aid. The great issue is no legal definition exists for first aid.

Probably the best definition is the one used by the American Red Cross in its 2005 Guidelines for First Aid. First aid is defined by the ARC from National First Aid Science Advisory Board definition of: “assessments and interventions that can be performed by a bystander with no medical equipment.”

Do Something

Good Samaritan laws are fantastic. They provide protection so people can be taken care of by bystanders. Good Samaritan laws were not designed for outfitters and guides, lodges, or recreation providers and do not provide coverage or protection for these groups.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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

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Alaska Recreational Assumption of the Risk

ALASKA STATUTES

Title 9. Code of Civil Procedure.

Chapter 65. Actions, Immunities, Defenses, and Duties.

Go to the Alaska Code Archive Directory

Alaska Stat. § 09.65.290 (2017)

Sec. 09.65.290. Civil liability for sports or recreational activities.

(a) A person who participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for all injuries or death to the person or other persons and for all damage to property that results from the inherent risks in that sports or recreational activity.

(b) This section does not require a provider to eliminate, alter, or control the inherent risks within the particular sports or recreational activity that is provided.

(c) This section does not apply to a civil action based on the

(1) negligence of a provider if the negligence was the proximate cause of the injury, death, or damage; or

(2) design or manufacture of sports or recreational equipment or products or safety equipment used incidental to or required by a sports or recreational activity.

(d) Nothing in this section shall be construed to conflict with or render as ineffectual a liability release agreement between a person who participates in a sports or recreational activity and a provider.

(e) In this section,

(1) “inherent risks” means those dangers or conditions that are characteristic of, intrinsic to, or an integral part of a sports or recreational activity;

(2) “provider” means a person or a federal, state, or municipal agency that promotes, offers, or conducts a sports or recreational activity, whether for pay or otherwise;

(3) “sports or recreational activity”

(A) means a commonly understood sporting activity, whether undertaken with or without permission, including baseball, softball, football, soccer, basketball, hockey, bungee jumping, parasailing, bicycling, hiking, swimming, skateboarding, horseback riding and other equine activity, dude ranching, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, hunting, fishing, backcountry trips, mushing, backcountry or helicopter-assisted skiing, alpine skiing, Nordic skiing, snowboarding, telemarking, snow sliding, snowmobiling, off-road and all-terrain vehicle use;

(B) does not include

(i) boxing contests, sparring or wrestling matches, or exhibitions that are subject to the requirements of AS 05.10;

(ii) activities involving the use of devices that are subject to the requirements of AS 05.20; or

(iii) skiing or sliding activities at a ski area that are subject to the requirements of AS 05.45.