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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

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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

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





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

To Purchase Go Here:

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,



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.


It is hard to understand the law because there are so many variations of the law and fifty different states with laws. It is harder to understand the law when the person explaining it to you is not a lawyer or worse, wrong.

It is hard to understand the law because there are so many variations of the law and fifty different states with laws. It is harder to understand the law when the person explaining it to you is not a lawyer or worse, wrong.

You don’t go to law school for fun. Law school is NOT fun. You go to law school to understand how the law works. Law School is just the first step. You must study and understand what is going on to understand an area of the law.

If you did not go to law school, and you need legal help, ask a lawyer.

I got a question the other day from a client. He was preparing to give a speech to a group of lodge owners and wanted to make sure he was going to say the right thing about the Good Samaritan Act. He had read a lot of websites and particularly one website and thought he understood the issues.

He did not. Neither did the websites. In fact, one of the websites, which was based on the course and book he had just taken described what the Good Samaritan law was based for that course. The course, book and class were wrong too.

My client was off, and the website was wrong. The problem is the wrong was enough to get you in trouble as a professional, program college or business.

You really need to beware of non-lawyers telling you what the law says.

First, there is not one Good Samaritan Law, there are at least fifty, in reality, there are more than 150. Each state has its own Good Samaritan law. Many states have many different laws covering rescue, first aid, AED use, the Heimlich maneuver and other aspects of providing support to injured people without becoming liable.

Everyone explains the Good Samaritan law as you are not liable if you help someone in need and are not paid for that help. Sort of.

All the following are requirements from different state Good Samaritan laws. You are covered…

  • If you have the right training
    • Some states list the training you must have
    • You follow the standards of a specific training organization (dependent upon the state).
      • American Red Cross
      • American Heart Association
      • National Safety Council
      • National Ski Patrol
      • Boy Scouts of America
      • A course as determined by the Secretary of Health and Mental Hygiene
      • Department of Public Health
      • director of health
      • mining enforcement and safety administration of the bureau of mines of the department of interior
      • Kentucky Cabinet for Health and Family Services
  • If you don’t act outside the scope of your training
  • You act like a reasonable or ordinary prudent person
  • If you are not being paid for your services
  • You are not in a hospital or in some states on hospital grounds
  • You are a member of an organization that exists to provide emergency services
  • You act in good faith
  • You have been called to act by the county sheriff
  • You are paid but not to provide first aid, only to provide public services
  • You did not act willfully, wantonly or recklessly or by gross negligence
  • The care is provided at the scene of the accident
  • You are at work
  • You are not at work
  • You’ve been trained in the use of the AED
  • You’ve been trained in the use of the epinephrine
  • You are not the one that caused the injury or placed the person in peril
  • Or you have not obtained consent

You are NOT covered by Good Samaritan Laws in some states if….

  • “…or when incidental to a business relationship existing between the employer or principal of the person rendering such care…”
  • Shall not apply if the care inures to your employer
  • Where the person has not consented to the care
  • Are working as a guide or outfitter
    • Whether or Not you are being paid as a guide
      • If you are required to have 1st aid you are not covered
    • Whether or Not being paid as a physician
      • But some states allow you to be paid later as a physician
  • You placed the person in peril
    • Meaning any part of the trip as a guide

Just look at the requirement that the care be rendered at the scene of the accident. You are helping someone get out of the backcountry, and you adjust their band aid, away from the accident scene. In man states you are not covered by the state Good Samaritan act.

As a Guide are you covered by the Good Samaritan Act? NO!

My client’s confusion was the fine line between compensation for your services, and compensation as a guide or employee, because you are paid to provide first aid. Meaning as a guide, who may or may not be required to provide first aid or have first aid training, are you covered under the Good Samaritan law, if you provide first aid training to one of your guests. In most cases no.

There is no Good Samaritan coverage if:

    You are employed and part of your job is to provide first aid

        Because you are required to have a level of first aid training

        The industry requires people to be trained in first aid

    The guest knows you are trained in first aid and relies on that knowledge you gave them

    The landowner or river owner requires it under a permit or concession

    You placed the guest in the peril that caused the injury.

        You picked the location where the guide is fishing

        You picked the route up the mountain

    You told the guest to follow the map you gave them on the ride or hike

You are a guide, and you took the client out; you are not covered by the Good Samaritan laws in most states.

You are a guide, the definition meaning you will take care of the client.

And the issues above are not changed in the Outdoor Recreation Industry by using Independent Contractors. In all cases, the guide and the outfitter are liable.

Consequently, a website, class or book cannot in one paragraph tell you whether your actions are going to be covered by the Good Samaritan law.

I hope you are covered by the Good Samaritan law, but find out for sure.

Do Something

It sucks but getting legal advice from someone other than attorney does not work.

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





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

To Purchase Go Here:

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,



A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

The defendant one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also, laid out the risks of skiing quite broadly in its information to the plaintiff.

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania

Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill

Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.

Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area

Defendant Defenses: Assumption of the Risk and Release

Holding:

Year: 2006

Summary

Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.

Facts

The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)

While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.

The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.

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

The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”

Under Pennsylvania law, a release to be valid must:

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

The court then went through the facts in this case to see if the requirements under the law were met.

The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”

The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”

The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.

The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.

The court found that icy conditions were an inherent risk of skiing in Pennsylvania.

Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.

So Now What?

It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.

Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.

In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.

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

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

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


The statute is unclear as to the requirements that a ski area must enforce, so the patrons are at risk of an injury. Who is liable and what can a ski area do?

C.R.S. §§ 33-44-109. Duties of skiers – penalties. States in section 6:

(6) Each ski or snowboard used by a skier while skiing shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard become unattached from the skier. This requirement shall not apply to cross country skis.

The Colorado Skier Safety Act above section C.R.S. §§ 33-44-109. Duties of skiers – penalties stated above requires skiers and snowboarders to have a retention device before skiing at a ski area.

Four of the 11 duties in section C.R.S. §§ 33-44-109 have criminal penalties if you violate those statutes.

(12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.

C.R.S. §§ 33-44-109. Duties of skiers – penalties.

(3) No skier shall ski on a ski slope or trail that has been posted as “Closed” pursuant to section 33-44-107 (2) (e) and (4).

(9) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug or while such person is under the influence of alcohol or any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug.

(10) No skier involved in a collision with another skier or person in which an injury results shall leave the vicinity of the collision before giving his or her name and current address to an employee of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision; in which event the person so leaving the scene of the collision shall give his or her name and current address as required by this subsection (10) after securing such aid.

(11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6).

The criminal charges are petty offenses. However, riding a lift or skiing/boarding without a retention device does not have a criminal penalty.

The section (6), has no penalty if you fail to have a leash or brake on your board or skis.

On a side note, tickets written for violation of the law are written by law enforcement. Ski Patrollers or other ski area employees cannot write you a ticket for violating the law. They can, however, take your lift ticket or season pass.

The issue of riding without a brake or retention device is even further complicated by the manufacturers of ski and snowboard equipment. Skies come with brakes as part of the binding. Tele or backcountry equipment come with leashes. Snowboards or snowboard bindings do not come with leashes.

If you purchase a product should the product come with the required statutory safety requirements?

Snowboards fly down the mountain all the time because they get away from the snowboarders. They sit down, take off the board to work on it or rest and lean the board on one edge with the bindings down. Any hit to the board and the board is on the snow going downhill.

I once dealt with a twelve-year-old girl who walking in her ski boots and had a runaway snowboard hit her in the ski boot breaking her ankle.

The question then becomes, “If a snowboard or ski gets away from a boarder or skier and the runaway board or ski strikes someone and injures them who is liable?”

The snowboarder or skier is liable. No question there, those people with the lift ticket were required to follow the law and have a leash or retention device.

The statute requires them to have a leash or brake, and they did not. They are liable. If the boarder loses a snowboard because they did not have a leash on the snowboard, and it goes down the hill striking someone and injuring them, they are negligent per se. Negligence per se is liability for violation of a statute.

The border or skier is also liable because another section of the Colorado Skier Safety Act states that.

33-44-104. Negligence – civil actions.

(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.

Most people read this section of the statute and think this is how a ski area is held liable when they violate the statute. And it is. However, the statute is written in a way that the liability is not only that of the ski area, an individual who violates the statute can be civilly liable also.

Any violation of this article which causes an injury creates liability on the part of the person who violated the statute, and that is not limited to the ski area. Since no specific “person” is named, then any person who causes injury is liable.

What about the ski area?

No ski area checks to see if everyone riding the lift or skiing has a brake or a leash. If a ski area did, they would have to put in a permanent exit from the lift line so boarders could go buy leashes (or go home because they don’t have enough money for a leash).

However, the ski area is not liable if they allow someone on the ski hill without a leash or a brake. The statute is specific on when a ski area is liable and C.R.S. §§
C.R.S. §§ 33-44-109(6) is not on the list that creates liability to the resort.

But what about the manufacturers of the snowboard bindings that are sold without leashes? Is the manufacturer liable for selling a product that does not include a statutory safety item?

Probably not, because the liability is on the individual according to the statute. However, in some states, could that liability continue up the chain and hold the snowboard manufacturer or binding manufacturer liable.

Other state ski area statutes

Seventeen states have ski area safety statutes. (See State Ski Safe Acts.) Of those seventeen states eight have some requirement for “retention devices.” All eight require skiers (and boarders) to wear retention devices. Three of the statutes place a duty on the ski area to post notices about wearing the retention devices, CN, ID and ND. Not statute creates liability for the ski area for allowing people to ski or ride without brakes or leashes.

[Emphasize added]

Connecticut

Sec. 29-211. (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.

In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to:

(2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act;

Sec. 29-213. (Formerly Sec. 19-418m). Prohibited conduct by skiers.

No skier shall:

(7) fail to wear retention straps or other devices used to prevent runaway skis;

Idaho

§ 6-1103. Duties of ski area operators with respect to ski areas

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

(7) To post notice of the requirements of this chapter concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices;

§ 6-1106. Duties of skiers

No skier shall fail to wear retention straps or other devices to help prevent runaway skis.

North Carolina

§ 99C-2. Duties of ski area operators and skiers

(5) To wear retention straps, ski brakes, or other devices to prevent runaway skis or snowboards;

North Dakota

53-09-03. DUTIES OF SKI OPERATORS WITH RESPECT TO SKI AREAS.

7. To post notice, at or near the boarding area for each aerial passenger tramway designed to transport passengers with skis attached to boots, of the requirements of this chapter concerning the use of ski retention devices. This obligation is the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices.

53-09-05. DUTIES OF PASSENGERS.

Every passenger shall have the duty not to:

8. Wear skis without properly securing ski retention straps.

New York

§ 18-105. DUTIES OF SKIERS

All skiers shall have the following duties:

12. To wear retention straps or other devices to prevent runaway skis;

Oregon

30.985. Duties of skiers; effect of failure to comply.

(h)Skiers must wear retention straps or other devices to prevent runaway skis.

Virginia

§ 8.01-227.17. Duties and responsibilities of winter sports participants and certain other individuals

g. Wearing retention straps, ski brakes, or other devices to prevent runaway equipment;

So, What Now?

If you lose a ski or board and that board hit someone or something and cause’s injury, you will be liable in eight states and probably liable in all states.

Possibly in some states, the manufacturer of the bindings who does not provide brakes or leashes (retention devices) could be liable.

Ski areas are not liable for failing to check for retention devices, and they are not liable if a ski or snowboard gets away from someone and injuries another guest.

Ski areas can stop you from skiing, riding or boarding a lift without brakes or leashes, but few if any do.

That leaves several unanswered questions.

What should the resorts do? Should they enforce the rule to require everyone to have a retention device?

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

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