No Child Left Inside Act needs your support

As the Senate HELP Committee prepares to mark up ESEA legislation beginning Wednesday, they need to hear from you TODAY. 

Encourage the Senate Help Committee to include NCLI as they reauthorize ESEA.
 
This week, the Senate Committee on Health, Education, Labor and Pensions (HELP) will mark up a draft of the Elementary and Secondary Education Act (ESEA).

Please call your Senator if s/he is on the HELP Committee TODAY (or as late as Wednesday) to urge their support for the inclusion of the NCLI Act (S.1372) in the reauthorization of ESEA. A phone call will take you just 3 minutes, and we have provided a script below to make it easy!

This is a very big week for all of us, and together we can make a difference! Thank you for taking action today.

Phone Call Instructions for Senators on the HELP Committee
Find your Senator’s DC Office phone number on the attached list of phone numbers for HELP Committee members.

· Always leave a voice message if you don’t get the staffer, be sure to hit the key points and leave the contact # for Sen Reed’s Office
· If you have a question that you cannot answer, write it down, reach out to us with the question, and let them know you’ll get back to them – this happens all the time, you don’t have to know it all!
· If your Senator is already a co-sponsor (noted on the attached contact list), thank staff for their support, but continue with the script and remind them that we’d like their support at mark up.

Call Script – you can literally just read from this, or adjust as you see fit:
 
My name is [NAME] calling from [ORGANIZATION NAME IF APPLICABLE] in [LOCATION] to speak with the staffer who handles education issues for the Senator.
[Once transferred, reintroduce yourself to the education staffer (or on voicemail if necessary), mention that you are a constituent of the Senator and if applicable the name of your organization]
[SAY THE FOLLOWING] I’m calling to ask that member SENATOR NAME support including environmental education during the mark up of the Elementary and Secondary Education Act scheduled for October 18th.  Specifically, we’d like to see the main provisions of the No Child Left Inside Act – bill # S. 1372 – be imbedded in ESEA. The main provisions include incentive funding tied to State Environmental Literacy Plans.  [THIS IS THE KEY MESSAGE, SAY THIS FIRST]
[YOU THEN MAY WISH TO SHARE WHY EE IS SO IMPORTANT] The No Child Left Inside Act will provide critical tools for a 21st Century, innovative workforce by providing students with the skills to understand complex environmental issues so they may make informed decisions in their own lives and find solutions for real world challenges facing us as a nation.
[LET THEM KNOW WHO TO CONTACT FOR MORE INFORMATION] Feel free to contact  Moira Lenehan Razzuri in Senator Jack Reed’s  office for more information.  Her phone number is 202-224-4642.  [IF LEAVING A MESSAGE] I can be reached at [PHONE #].

Call Today
What do you think? Leave a comment.

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Great editorial questioning why we need laws to “protect” us from ourselves.

Besides, as many of you know, the effectiveness of most safety gear is less successful than the laws requiring the gear.

An editorial in the Sacramento Bee titled Editorial Notebook: Do we need laws to end every kind of risk?, upports California Governor Jerry Brown’s vetoing a law that would have fined parents for allowing their children to ski without a helmet. (See California bill to require helmets on skiers and boarders under age 18 dies lacking governor’s signature.) The Governor vetoed the bill with this statement: “Not every human problem deserves a law.”

The editorial looks at the entire issue from several different perspectives. The writer first looks at the proliferation of laws applying to Californians.

In California, bicyclists under the age of 18 are required to wear helmets. But it doesn’t stop at bicycles. Skateboarders, in-line skaters and scooter riders are required by law to wear helmets, too, if they are under 18.
Even bike passengers under the age of 5 have to wear helmets.
In New Mexico, tricycle riders are required to wear helmets – really, tricycle riders!

The author then states that the laws are just creating a nation of wimps.

Have we become a nation of wimps, so risk-averse we have created protective gear for every potential mishap, no matter how remote? Worse, we’ve written laws that force us into this perpetual defensive crouch.

The author blames many different groups of people for the unnecessary laws.

I can’t tell if it’s the insurance industry that’s pushing it or the trial lawyers trawling for someone to sue or just nervous parents with their single precious progeny. I suspect a bit of all three.

Nor does he let the media escape the blame.

There’s another culprit in all this: the media. We provide blanket coverage of every tragedy. Every crime, every accident, particularly when a child is involved, is endlessly reported on, blown out of proportion. In ways subtle and not so subtle, we tell parents – and by extension our children – be afraid, be very afraid.

I agree with the media statement. Growing up I had access to one newspaper. It printed what occurred in the Nation, the world, Ohio, the local county and sports. There was no room, nor need for an article on a skiing accident in California or a kayaking death in Maine. It did not matter; those were local issues for those local newspapers. Now we get news thrown at us from around the world with the same importance as the hometown city council meeting, and we are expected to show the same concern.

I am as guilty of that as any other media outlet. I find tragedies and lawsuits and post them on my Facebook page regularly. The article has me thinking. Is my audience narrow enough, industry people, that I’m not creating problems?

The author’s final issue is do we need all the protective gear?

When I was a kid, not every accident was grounds for a lawsuit. When I was a kid, playgrounds, toys and athletic equipment were not cluttered with warning signs written by insurance companies to protect against liability. 

Combine all these issues and the author makes valid points. Add to that the effectiveness of current helmets used in recreational sports, and the entire argument falters. Add to that the issue that mandatory helmet laws reduce participation. See A father of a deceased skier pushing for a helmet law in New Jersey.

Do Something

Go to the website, read the article and support comments like this. You can also like the article on Facebook.
See Do we need laws to end every kind of risk?

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
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Authors are responsible for accidents.

The intelligence behind this proposed law matches the intelligence behind several of the laws in Hawaii.

If you need money, go to Hawaii and get hurt. California we always thought made it easy to sue. However, Hawaii has far surpassed any attempt by CA to reign as king of litigation.

In Hawaii a bill was passed to stop litigation for recreation business that only took away the defenses the recreation businesses had and made suing them easier.

In Hawaii the state is liable for anything that happens on their parks, which usually means something stupid or inane by tourists.

In Hawaii the National Park Service is dragged into writing big checks because stay law requires it.
So in an effort to curb injuries, and probably pay outs, a law is being proposed in Hawaii that would make authors of guide books liable for injuries of people to who took the authors’ advice.

Can’t you see the next Hawaiian guidebook? The top ten padded rooms to see while visiting Hawaii.
See Guidebooks to Risky Attractions Stir Up Trouble in Paradise
 
Eventually, a lot of people will spend money, and lawyers will get rich proving that the First Amendment works in Hawaii. It did not get lost traveling over the Pacific Ocean. It will take time and legislators will pat themselves on the back and say they have done something to make Hawaii safer.

Do Something

1. Send a letter to the Governor of Hawaii and remind the governor that there is a first amendment, and it does work in Hawaii.
2. Tell the Governor if they want to quit writing checks they need to pass a law that says if you are stupid you can’t collect money.
3. Tell the Governor to pass a law that says a release is a valid contract that Hawaiian business should be allowed to use.
4. Tell the Governor to veto any bill holding authors liable for the acts of others.

What do you think? Leave a comment.

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Colorado has a “Bill of Rights” for kids to experience the outdoors.

This is really cool.

 CO_OBOR_English

What do you think? Leave a comment.

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Statutes and prospective language to allow a parent to sign away a minor’s right to sue.

Now is the time to move a statute like this forward in your state.

Three states allow a parent to sign away a child’s right to sue by statute: Alaska, Florida and Colorado. Five (maybe 6) states allow a parent to sign away a minor’s right to sue by Supreme Court Decision. See States that allow a parent to sign away a minor’s right to sue. With more legislatures leaning to the conservative side, now is the time to introduce and get a law like these passed in your state. To assist you, at the end I have included language that I would propose for the statute.

Colorado

C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.
(2) As used in this section, unless the context otherwise requires:
(a) “Child” means a person under eighteen years of age.
(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

Florida Statute on Guardian right to sign away a minor’s right to sue.

Fla. Stat. § 744.301 (2010)
§ 744.301. Natural guardians
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:

Alaska

Alaska Stat. § 09.65.292 (2011)
Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
(c) In this section,
(1) “child” means a minor who is not emancipated;
(2) “parent” means
(A) the child’s natural or adoptive parent;
(B) the child’s guardian or other person appointed by the court to act on behalf of the child;
(C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;
(D) a person who has a valid power of attorney concerning the child; or
(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;
(3) “provider” has the meaning given in AS 09.65.290;
(4) “sports or recreational activity” has the meaning given in AS 09.65.290.

My suggestion on how the law should read.

Legislative declaration – definitions – minor children – waiver by parent or guardian of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in _____________ (state) need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a legal and fundamental right and responsibility to make decisions concerning the care, custody, and control of their minor children. The law has long presumed that parents act in the best interest of their children. Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458; 2000 Cal. Daily Op. Service 4345; 2000 Daily Journal DAR 5831; 2000 Colo. J. C.A.R. 3199; 13 Fla. L. Weekly Fed. S 365 (Troxel is a US Supreme Court decision that allows a parent to sign away a child’s right to sue. See Courtney Love in Outdoor Recreation Law.)
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(a) “Child” means a person under eighteen years of age at the time of incident, loss, injury or accident.
(b) For purposes of this section only, “parent” means a parent, a person who has guardianship of the person, a person who has legal custody, a legal representative, a physical custodian or a responsible person, in temporary custody and control of the minor Child.
(3) A Parent of a Child may, on behalf of the Child, release and waive, in advance, any claim or cause of action against a private, commercial, governmental or non-profit, activity provider, business, program or activity, or its owners, affiliates, employees, volunteers or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from the risk or an inherent risk in the activity or the Child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.

To work you will need to round up everyone who deals with kids. Little League and other youth sports groups, day care centers, youth programs like Scouts, commercial programs like camps, day camps and anyone serving youth as well as major organizations that may be in your state like NOLS and Outward Bound.

Your statutory language may vary based on current state laws and court interpretations, but go for it.  You can only lose time and get a civics lesson.

This won’t save you money on your insurance that never happens. However, it may help keep your insurance from going up and keep you out of court.

What do you think? Leave a comment.

 
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw
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Washington bill to halt out of bounds skiers is just a way to promote more lawsuits

Out of bounds skiers will be easier to arrest, but lawsuits for skier collisions will be easier to sue over. 

Washington Senate Bill 5186 sponsored by Senators Kastama, Delvin, and Eide would allow ski patrollers to collect information to be given to the sheriff to arrest out of bounds skiers. Besides the obvious evidentiary issues with the bill, the bill also has several deceptive parts.

Excerpts from the bill concerning the out of bounds issues are:

(7)(a) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.

(b) A person shall not ski on a ski slope, trail, or area that is designated by a ski area operator as closed to the public and that has signs posted indicating the closure. Any person who violates the provisions of this subsection commits a civil infraction and is subject to a monetary penalty of up to one thousand dollars.

(i) A member of the national ski patrol who witnesses a violator present in a closed area may conduct an investigation that includes preparation of an incident report form and collection of evidence or witness statements. Information pertaining to the violation may be remitted within seven days to the sheriff of the county

Don’t get me wrong, idiots who ski into closed areas of ski areas should go to jail. However, most ski resorts on US Forest Service land is required to have a gate so skiers can ski on the Forest Service land. The first issue is the closed area inside the ski area boundary our out? If out, there could be a problem with the sheriff making an arrest on federal land.

However, the deceptive part of the bill is very interesting. Those excerpts are:

(1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.

(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.

These paragraphs would increase litigation significantly in the state. No other state skier statute places such a great burden on skiers, nor does any other statute reference so many ways to create liability for a skier or boarder who collides with another.

The language of the bill will make it easier to start lawsuits over ski injuries.

Ski areas will probably like the bill because it may stop people from ducking rope closures. However, they will soon come to hate the bill when their costs of sending patrollers to testify at trial for the criminal defendants and the skier v. skier collisions goes through the roof. Add to that the lost time and it can be expensive for the resort to be involved in any litigation, even if the resort is not a defendant.

For an article about the bill see Out-of-bounds skiing bill wouldn’t affect backcountry.

To see the bill:

S-0070.1
SENATE BILL 5186
State of Washington 62nd Legislature 2011 Regular Session
By Senators Kastama, Delvin, and Eide
Read first time 01/17/11. Referred to Committee on Natural Resources & Marine Waters.
AN ACT Relating to skiing in areas closed to skiing; amending RCW 79A.45.030; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 79A.45.030 and 1989 c 81 s 3 are each amended to read as follows:
(1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
(2) No person shall:
(a) Embark or disembark upon a ski lift except at a designated area;
(b) Throw or expel any object from any tramway, ski lift, commercial skimobile, or other similar device while riding on the device;
(c) Act in any manner while riding on a rope tow, wire rope tow, j- bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;
(d) Willfully engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift; or
(e) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.
(3) Every person shall maintain control of his or her speed and course at all times, and shall stay clear of any snowgrooming equipment, any vehicle, any lift tower, and any other equipment on the mountain.
(4) A person shall be the sole judge of his or her ability to negotiate any trail, run, or uphill track and no action shall be maintained against any operator by reason of the condition of the track, trail, or run unless the condition results from the negligence of the operator.
(5) Any person who boards a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device shall be presumed to have sufficient abilities to use the device. No liability shall attach to any operator or attendant for failure to instruct the person on the use of the device, but a person shall follow any written or verbal instructions that are given regarding the use.
(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.
(7)(a) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.
(b) A person shall not ski on a ski slope, trail, or area that is designated by a ski area operator as closed to the public and that has signs posted indicating the closure. Any person who violates the provisions of this subsection commits a civil infraction and is subject to a monetary penalty of up to one thousand dollars.
(i) A member of the national ski patrol who witnesses a violator present in a closed area may conduct an investigation that includes preparation of an incident report form and collection of evidence or witness statements. Information pertaining to the violation may be remitted within seven days to the sheriff of the county in which the violation occurred or to the director of fish and wildlife.
(ii) The sheriff of the county in which the violation occurred or a fish and wildlife officer as defined in RCW 77.08.010 may issue a citation to a person who violates this subsection (7)(b).
(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.
(9) A person embarking on a lift or tow without authority shall be considered to be a trespasser.

What do you think? Leave a comment.

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California bill to require helmets on skiers and boarders under age 18 dies lacking governor’s signature.

Probably, a good thing.

There is a balancing act, always upset by politicians seeking to attract attention, between getting kids’ outdoors and the risks the outdoors create. That risk is probably less than the short and long term risk of sitting at home. However, that does not stop a politician seeking to gain media time from trying to eliminate the risk, no matter how misguided.

The entire premise is based on the theory that all skiers and boarders under the age of 18 will go out and buy a helmet before riding. That premises is possibly wrong. What does happen based on several studies is fewer youths participate in the sport after requiring helmets. See the following:

A critical examination of arguments against bicycle helmet use and legislation
Helmet Laws and Health
Head Injuries and Helmet Laws in Australia and New Zealand
Head injuries and bicycle helmet laws.

There are other studies that contradict these findings, however.

It is simple. Friday night Johnny takes the information bout the ski trip on Saturday to mom. Mom reads that Johnny must have a helmet to participate. Mom is not going to go buy or rent Johnny a helmet because:

  1. It is late and mom is tired.
  2. She has no money to buy or rent a helmet.
  3. She does not want to spend any more money on a helmet.
  4. Tough luck Johnny, you will probably be a bad skier anyway.

See California Helmet Bill Is Dead

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

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