Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.
Posted: February 20, 2019 Filed under: Adventure Travel, American Alpine Club (AAC), American Avalanche Association (A3), American Society of Testing and Materials (ASTM) & American National Standards Institute (ANSI), Association of Outdoor Recreation and Education (AORE), Associations & Tradeshows, Assumption of the Risk, Avalanche, Bicycle Colorado, Camping, Certification, Climbing, Climbing Wall, College Program, Colorado Alliance of Environmental Education, Colorado Ski Country USA (CSCUSA), Conferences, Contract, Criminal Liability, Cycling, Editorial, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Good Samaritan Statutes, Grand Canyon River Guides Association (GCRGA), Guide, Health Club, How, Indoor Recreation Center, Insurance, Interbike, James H. Moss, Journal, Jurisdiction and Venue (Forum Selection), Land Owner, Marketing, Medical, Minors, Youth, Children, Moss Maxims, Mountain Biking, Mountaineering, National Bicycle Dealers Association, National Recreation & Parks Association, National Ski Patrol (NSP), Negligence, Non-Profit, NSAA (National Ski Area Association), Outdoor Retailer Trade Show, Paddlesports, Playground, Product Liability, Product Recall, Racing, Racing, Recreational Use Statute, Release (pre-injury contract not to sue), Retailers, Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Ski Area Statutes, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Snowsports Industry Association (SIA) Ski Show, Sport and Recreation Law Association (SRLA), Sports, Sports & Fitness Industry Association, (SFIA) formerly Sporting Goods Manufacturing Association (SGMA), Standards, Statutes, Summer Camp, Swimming, Triathlon, Union Internationale des Association d’Alpinisme (UIAA), Volunteers, Whitewater Rafting, Why People Sue, Wilderness Medical Society (WMS), Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentAn injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.
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
New Book Aids Both CEOs and Students
Posted: February 14, 2019 Filed under: Adventure Travel, Assumption of the Risk, Camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Good Samaritan Statutes, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Negligence, Paddlesports, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line Leave a comment“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.
Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: February 12, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Associations & Tradeshows, Assumption of the Risk, Avalanche, Camping, Certification, Challenge or Ropes Course, Climbing, Climbing Wall, College Program, Commercial Outfitter, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Evidence, First Aid, Good Samaritan Statutes, Guide, Health Club, Indoor Recreation Center, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Land Owner, Marketing, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Negligence, Paddlesports, Playground, Product Liability, Racing, Racing, Recreational Use Statute, Release (pre-injury contract not to sue), Retailers, Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Ski Area Statutes, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Standards, Statutes, Summer Camp, Swimming, Triathlon, Volunteers, Whitewater Rafting, Why People Sue, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese 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
Need a Handy Reference Guide to Understand your Insurance Policy?
Posted: November 28, 2018 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Commercial Outfitter, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Good Samaritan Statutes, Guide, Health Club, Indoor Recreation Center, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Land Owner, Minors, Youth, Children, Mountain Biking, Mountaineering, National Ski Patrol (NSP), NSAA (National Ski Area Association), Paddlesports, Racing, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Ski Area Statutes, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Snowsports Industry Association (SIA) Ski Show, Sports, Summer Camp, Swimming, Volunteers, Whitewater Rafting, Why People Sue, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, and Law, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Risk Management Leave a commentThis 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
Posted: November 14, 2018 Filed under: Adventure Travel, Assumption of the Risk, Camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Good Samaritan Statutes, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Negligence, Paddlesports, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: and Law, Desk Reference, Insurance, Law, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Reference Book, Reward, Risk, Risk Management, ski area, Textbook, Whitewater Rafting Leave a comment“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.
No matter who created the activity or the risk on Town’s land, using the risk was an outdoor recreation activity and protected by the New Hampshire Recreational Use Statute.
Posted: November 27, 2017 Filed under: Land Owner, New Hampshire, Recreational Use Statute | Tags: constructive knowledge, Dangerous Condition, discovery, dock, enumerated, guard, Hazard, hazardous conditions, Immunity, intentional act, Landowner, matter of law, Outdoor, person using, pond, postpone, probable", quotation, recreational, recreational activity, Recreational Use, Recreational Use Statute, rope, Rope Swing, shallow water, swing, warn, Warning, Water Sports, willful, willfully Leave a commentBesides if you stand in front of a rope swinging when someone is using it attempting to slap the swinger’s feet as he goes by, and you get flattened by the swinger you should not be able to recover.
Kurowski v. Town of Chester, 2017 N.H. LEXIS 174
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: Jay Kurowski F/N/F Christopher Kurowski
Defendant: Town of Chester
Plaintiff Claims: acted negligently and willfully or intentionally by failing to remove the rope swing or post warning signs.
Defendant Defenses: New Hampshire Recreational Use Statute
Holding: For the Defendant Town
Year: 2017
Summary
The Town had a park with a pond. Someone had put up a rope swing that allowed you to swing into the pond. The town knew about the rope swing and knew that it was possibly hazardous. However, the town never removed the rope swing or posted signs about the hazards it presented.
The minor plaintiff was standing in front of someone using the rope swing attempting to hit the person’s feet when he was clobbered by the person on the swing suffering injuries.
The father of the plaintiff sued. The trial court and the appellate court dismissed the case because the New Hampshire Recreational Use Statute provided immunity to the Town for outdoor recreational activities such as this one.
Facts
The defendant city had a park with a pond. Someone put up a rope swing to use to swing into the pond. The city did not create the rope swing. Several people complained to the city about the rope swing and asked for it to be taken down or signs put up warning against its use.
The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, and is open to the public free of charge. Since approximately 2012, a rope swing has been attached to a tree overhanging the pond. Neither the plaintiff nor the Town constructed or maintained the swing. People use the rope swing to fling themselves over and into the pond.
The plaintiff, a minor, was at the rope swing. Another person was using the swing to enter the water. The plaintiff was attempting to hit the person’s feet. The person on the swing and the plaintiff collided injuring the plaintiff.
On August 20, 2015, Christopher was at the pond, standing in the path of a person using the swing. While Christopher was attempting to touch the feet of the person swinging on the rope, the two collided, and Christopher was seriously injured.
The father of the minor filed this lawsuit. The city filed a motion for summary judgment asking the compliant be dismissed because the city as the landowner was protected by the New Hampshire Recreational Use Statute.
The trial court agreed and dismissed the case. The plaintiff appealed.
Analysis: making sense of the law based on these facts.
The plaintiff first argued that using a rope swing to swing into a pond was not an outdoor recreation activity as defined under the New Hampshire Recreational Use Statute. The court quickly shot this down because the statute did not list everything that was to be protected by the statute it only listed a few things and started that list with the language “including, but not limited to….”
The court had found other decisions it had made where it interpreted outdoor recreation activities as covered under the statute even though they were not identified in the statute.
By its plain terms, the statute’s list of outdoor recreational activities is not exhaustive. Indeed, we have previously applied the principle of ejusdem generis to this provision and concluded that an activity not specifically enumerated — but similar in nature to the activities listed in the statute — may constitute an “outdoor recreational activity.” The principle of ejusdem generis provides that, when specific words in a statute follow general ones, the general words are construed to embrace only objects similar in nature to those enumerated by the specific words.
Looking at the statute and the activity the court found the activity was a water sport and thus covered under the statute.
We hold that Christopher was actively engaged in an outdoor recreational pursuit sufficiently similar in nature to the enumerated activity of “water sports” to constitute an “outdoor recreational activity” under RSA 212:34, I(c).
The next argument made by the plaintiff was because the town did not supply the swing, it was not covered under the New Hampshire Recreational Use Statute. The court quickly shot this down finding it does not matter what was used in an outdoor recreational activity or who supplied it.
However, the identity of the person or entity providing the equipment or structure used in an outdoor recreational activity is immaterial. See id. at 56 (finding immaterial the fact that playground equipment used in outdoor activity was provided by landowner rather than user). Indeed, many of the enumerated outdoor recreational activities, for example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA 212:34, I(c),….
The plaintiff next argued the activity was not an outdoor recreational activity because the landowner did not authorize the activity and because the activity was hazardous. The court seemed a little irked when it shot this argument down.
In fact, the statute specifically contemplates that immunity will apply even if the activity at issue involves a known hazardous condition. See RSA 212:34, II (“A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises … . (emphasis added)).
The next argument made by the plaintiff centered around whether or not the actions of the town willful when it failed to post signs about hazards of the activity. The plaintiff argued one version of the definition of the term willful, and the town argued a second. The court found that under either definition, the town was still immune under the statute. Additionally, the court found the actions of the
town were not willful because the plaintiff could not establish the town knew or should have known that an injury would probably result from the activity.
An allegation that a landowner knew about a particular hazard and did nothing is insufficient to establish that the landowner knew or should have known that injury would probably result from that hazard. At most, such allegations sound in negligence. Therefore, even assuming that the Spires definition applies, we conclude that the plaintiff’s allegations are insufficient as a matter of law to establish that the Town acted “willfully.”
The plaintiff then argued the acts of the town were intentional. That part of the case was dismissed by the trial court because the court found the plaintiff had not alleged enough facts to prove a case of intentional acts on the part of the town. The plaintiff’s argument was:
The plaintiff argues that the Town’s conduct constituted an intentional act for the same reasons he asserts the Town’s conduct was willful — because the Town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs.
The court did not agree. There was no proof or pleading that the town had actual or constructive knowledge that its conduct, in failing to post signs or take down the swing, was conduct that was a substantially certain to result in an injury.
At most, the plaintiff’s allegations — that the Town was aware of a hazardous condition or activity and failed to act — sound in negligence. (concluding that allegations that defendant disregarded a substantial risk and failed to act sound in negligence). Accordingly, we hold that the trial court did not err when it found that the plaintiff alleged
insufficient facts to show that the Town’s conduct was willful or intentional.
The decision of the trial court was upheld, and the complaint dismissed.
So Now What?
This case shows two simple truths for the outdoor recreation industry today. The first, plaintiffs are going to greater lengths to create arguments to litigate over outdoor recreation injuries. The work the plaintiff put in, in order to redefine each word of the statute in a way that did not protect the Town was
substantial and lengthy.
The second is the statutes have to be written in a way that broadens the protections the legislature intends to give the courts the leeway to dismiss frivolous claims like this. Frivolous because I believe assumption of the risk would be the next defense.
If you stand in front of someone who is holding on to a rope swinging in your direction, and you do so willingly, you assume the risk of getting flattened.
What do you think? Leave a comment.
Copyright 2017 Recreation Law (720) 334 8529
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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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New Hampshire Recreational Use Statute
Posted: November 26, 2017 Filed under: New Hampshire, Recreational Use Statute | Tags: city, New Hampshire, Park, pond, Recreational Use, Recreational Use Statute, Rope Swing Leave a commentNew Hampshire Recreational Use Statute
Title XVIII Fish and Game
Chapter 212 Propagation of Fish and Game
Liability of Landowners
RSA 212:34 (2017)
212:34. Duty of Care.
I. In this section:
(a) “Charge” means a payment or fee paid by a person to the landowner for entry upon, or use of the premises, for outdoor recreational activity.
(b) “Landowner” means an owner, lessee, holder of an easement, occupant of the premises, or person managing, controlling, or overseeing the premises on behalf of such owner, lessee, holder of an easement, or occupant of the
premises.
(c) “Outdoor recreational activity” means outdoor recreational pursuits including, but not limited to, hunting, fishing, trapping, camping, horseback riding, bicycling, water sports, winter sports, snowmobiling as defined in RSA 215-C:1, XV, operating an OHRV as defined in RSA 215-A:1, V, hiking, ice and rock climbing or bouldering, or sightseeing upon or removing fuel wood from the premises.
(d) “Premises” means the land owned, managed, controlled, or overseen by the landowner upon which the outdoor recreational activity subject to this section occurs.
(e) “Ancillary facilities” means facilities commonly associated with outdoor recreational activities, including but not limited to, parking lots, warming shelters, restrooms, outhouses, bridges, and culverts.
II. A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except as provided in paragraph V.
II-a. Except as provided in paragraph V, a landowner who permits the use of his or her land for outdoor recreational activity pursuant to this section and who does not charge a fee or seek any other consideration in exchange for allowing such use, owes no duty of care to persons on the premises who are engaged in the construction, maintenance, or expansion of trails or ancillary facilities for outdoor recreational activity.
III. A landowner who gives permission to another to enter or use the premises for outdoor recreational activity does not thereby:
(a) Extend any assurance that the premises are safe for such purpose;
(b) Confer to the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed; or
(c) Assume responsibility for or incur liability for an injury to person or property caused by any act of such person to whom permission has been granted, except as provided in paragraph V.
IV. Any warning given by a landowner, whether oral or by sign, guard, or issued by other means, shall not be the basis of liability for a claim that such warning was inadequate or insufficient unless otherwise required under subparagraph V(a).
V. This section does not limit the liability which otherwise exists:
(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity;
(b) For injury suffered in any case where permission to enter or use the premises for outdoor recreational activity was granted for a charge other than the consideration if any, paid to said landowner by the state;
(c) When the injury was caused by acts of persons to whom permission to enter or use the premises for outdoor recreational activity was granted, to third persons as to whom the landowner owed a duty to keep the premises safe or to warn of danger; or
(d) When the injury suffered was caused by the intentional act of the landowner.
VI. Except as provided in paragraph V, no cause of action shall exist for a person injured using the premises as provided in paragraph II, engaged in the construction, maintenance, or expansion of trails or ancillary facilities as provided in paragraph II-a, or given permission as provided in paragraph III.
VII. If, as to any action against a landowner, the court finds against the claimant because of the application of this section, it shall determine whether the claimant had a reasonable basis for bringing the action, and if no reasonable basis is found, shall order the claimant to pay for the reasonable attorneys’ fees and costs incurred by the landowner in defending against the action.
VIII. It is recognized that outdoor recreational activities may be hazardous. Therefore, each person who participates in outdoor recreational activities accepts, as a matter of law, the dangers inherent in such activities, and shall not maintain an action against an owner, occupant, or lessee of land for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the outdoor recreational participant assumes as a matter of law include, but are not limited to, the following: variations in terrain, trails, paths, or roads, surface or subsurface
snow or ice conditions, bare spots, rocks, trees, stumps, and other forms of forest growth or debris, structures on the land, equipment not in use, pole lines, fences, and collisions with other objects or persons.