Nasserziayee v. Ruggles (D. Utah 2022)
Posted: July 25, 2022 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue), Utah | Tags: Equine, Equine Liabililty Act, Helmets, Horseback Ride, Release, Utah, Waiver Leave a commentNasserziayee v. Ruggles (D. Utah 2022)
FAROOQ NASSERZIAYEE AND LENORE SUPNET, husband and wife, on their own behalf, and on behalf of their daughter, M.N., a minor, Plaintiffs,
v.
JACK RUGGLES and JANE DOE RUGGLES, husband and wife; ZION CANYON TRAIL RIDES AT JACOB’S RANCH, LLC, a Utah limited liability company; JOSHUA RUGGLES; CLAY DOE, Defendants.
No. 4:19-cv-00022-DN-PK
United States District Court, D. Utah
January 7, 2022
Paul Kohler, Magistrate Judge
MEMORANDUM DECISION AND ORDER
• DENYING MOTION TO STRIKE AND
• GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
David Nuffer United States District Judge
This case arises out of an alleged accident at Zion Canyon Trail Rides at Jacob’s Ranch (“Jacob’s Ranch”), a recreational horseback riding facility. Plaintiffs Farooq Nasserziayee (“Nasserziayee”) and Lenore Supnet (“Supnet”) filed a complaint on behalf of themselves and their daughter, M.N., alleging that M.N. was injured during a horse-riding accident due to the actions of Defendants.
Defendants Zion Canyon Trail Rides at Jacob’s Ranch, Jack Ruggles, and Jane Doe Ruggles (collectively “Moving Defendants”) moved for summary judgment. They allege that summary judgment is appropriate because (1); no reasonable factfinder could find gross negligence; (2) Plaintiffs assumed the risk of injury; (3) no reasonable fact finder could find negligent infliction of emotional distress; and (4) no reasonable fact finder could find intentional infliction of emotional distress. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.
Contents
Background ……………………………………………………………………………………………………………………. 2
A Prior Ruling Eliminated Some Claims …………………………………………………………………. 3
This Motion for Summary Judgment ………………………………………………………………………. 3
Undisputed Material Facts ……………………………………………………………………………………………….. 4
Discussion ……………………………………………………………………………………………………………………… 6
Defendant’s Motion to Strike is Denied ………………………………………………………………….. 6
Defendants’ Motion for Summary Judgment Will be Granted in Part and Denied in Part 8 A Reasonable Factfinder Could Conclude Defendants Were Grossly Negligent … 9
Assumption of Risk Does Not Bar Plaintiffs’ Negligence Claims ………………….. 13
The Prior Ruling Granted Summary Judgment on the Negligent Infliction of Emotional
Distress Claim …………………………………………………………………………………………. 16
Summary Judgment Will be Granted on the Intentional Infliction of Emotional Distress
Claim ……………………………………………………………………………………………………… 17
Conclusion and Order ……………………………………………………………………………………………………. 18
BACKGROUND
On March 4, 2020, Nasserziayee and Supnet filed a complaint alleging their minor daughter, M.N., was badly injured in a March 21, 2016, fall off of a horse at Jacob’s Ranch.[1] The complaint asserted claims for negligence, gross negligence, infliction of emotional distress, and negligent infliction of emotional distress against Jacob’s Ranch, Jack Ruggles, and Jane Doe Ruggles.[2] In April 2020, Plaintiffs filed an amended complaint, which added identical claims against Joshua Ruggles and Clay Doe, and alleged, “[b]ased on the statements of Defendant Jack (“Pappy”) Ruggles and Defendant Jacobs Ranch, ” that Joshua Ruggles and Clay Doe were independent contractors.[3]
A Prior Ruling Eliminated Some Claims
In October 2020, Defendants filed a Motion to Dismiss and for Summary Judgment[4], which was granted in part and denied in part (“Prior Ruling”).[5] The Prior Ruling granted summary judgment for Defendants on the claims for ordinary negligence and negligent infliction of emotional distress, based on the Release Plaintiffs signed prior to the horseback ride.[6]However, the Prior Ruling denied summary judgment on the claims for gross negligence and intentional infliction of emotional distress because those claims were not barred by the Release.[7]The Prior Ruling also found there was sufficient evidence to support a claim for gross negligence, because there were disputed facts not amendable to resolution based on the record at the time. Specifically, the Prior Ruling noted that Plaintiffs had submitted evidence that helmets were not made available to the group, and the horses were at one point encouraged to go faster, even though they were carrying inexperienced riders. The Prior Ruling concluded that this evidence, if believed by a jury, could support a finding of gross negligence against Jack Ruggles, Jane Doe Ruggles, and Jacob’s Ranch.[8]
This Motion for Summary Judgment
On September 16, 2021, Moving Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC filed this motion for summary judgment on all remaining issues (“Motion”), which is resolved in this ruling.[9] Plaintiffs filed a response on October 14 (“Response”), [10] and a supplemental response on October 28, 2021 (“Supplemental Response”).[11] Moving Defendants filed a reply on October 28, 2021(“Reply’).[12]
On November 3, 2021, Moving Defendants moved to strike Plaintiffs’ Supplemental Response, arguing it was untimely filed.[13] Plaintiffs filed an opposition to the Motion to Strike on November 15, 2021.[14] On November 17, 2021, a docket text order was entered construing the opposition as a motion under Federal Rules of Civil Procedure 6(b) and directing Defendants to file a further reply.[15] Defendants did so on November 29, 2021.[16]
UNDISPUTED MATERIAL FACTS
1. On March 21, 2016, Plaintiffs Farooq Nasserziayee, Lenore Supnet, and their daughter M.N. went horseback riding at Jacob’s Ranch.[17]
2. Prior to the start of the ride, Supnet signed a liability waiver (the “Release”) on behalf of her, Nasserziayee, and M.N.[18]
3. The Release contained the following relevant language:
INHERENT RISKS/ASSUMPTION OF RISKS: I ACKNOWLEDGE THAT: Horseback riding is classified as RUGGED ADVENTURE RECREATIONAL SPORT ACTIVITY & that risks, conditions, & dangers are inherent in (meaning an integral part of) horse/equine/animal activities regardless of all feasible safety measures which can be taken & I agree to assume them. The inherent risks include, but are not limited to any of the following: The propensity of an animal to behave in ways that may result in injury, harm, death, or loss to persons on or around the animal. The unpredictability of an equine’s reaction to sounds, sudden movement, unfamiliar objects, persons, or other animals. Hazards including but not limited to surface or subsurface conditions. A collision, encounter and/or confrontation with another equine, another animal, a person or an object. The potential of an equine activity participant to act in a negligent manner that may contribute to injury, harm, death, or loss to the participant or to other persons, including but not limited to failing to maintain control over an equine and/or failing to act within the ability of the participant . . . . I also acknowledge that these are just some of the risks & I agree to assume others not mentioned above.
. . .
I/WE AGREE THAT: I for myself & on behalf of my child and/or legal ward have been fully warned & advised by THIS STABLE that protective headgear/helmet, which meets or exceeds the quality standards of the SEI CERTIFIED ASTM STANDARD F 1163 Equestrian Helmet should be worn while riding, handling and/or being near horses & I understand that the wearing of such headgear/helmet at these times may reduce severity of some of the wearer’s head injuries & possibly prevent the wearer’s death from happening as the result of a fall & other occurrences. I/WE ACKNOWLEDGE THAT: THIS STABLE has offered me, & my child and/or legal ward if applicable, protective headgear/helmet that meets or exceeds the quality standards of the SEI CERTIFIED ASTM STANDARD F 1163 Equestrian Helmet. I/WE ACKNOWLEDGE THAT: Once provided, if I choose to wear the protective headgear/helmet offered that I/WE will be responsible for properly securing the headgear/helmet on the participant’s head at all times. I am not relying on THIS STABLE and/or its associates to check any headgear/helmet strap that I may wear, or to monitor my compliance with this suggestion at any time now or in the future.
. . .
I AGREE THAT [i]n consideration of THIS STABLE allowing my participation in this activity, under the terms set forth herein, I for myself and on behalf of my child and/or legal ward, heirs, administrators, personal representatives or assigns, do agree to release, hold harmless, and discharge THIS STABLE, its owners, agents, employees, officers, directors, representatives, assigns, members, owners of premises and trails, affiliated organizations, and Insurers, and others acting on their behalf (hereinafter, collectively referred to as “Associates”), of and from all claims, demands, causes of action and legal liability, whether the same be known or unknown, anticipated or unanticipated, due to
THIS STABLE’S and/or ITS ASSOCIATE’S ordinary negligence or legal liability; and I do further agree that except in the event of THIS STABLE’S gross negligence and/or willful and/or wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action, against THIS STABLE and ITS ASSOCIATES as stated above in this clause, for any economic or non-economic losses due to bodily in[j]ury and/or death and/or property damage, sustained by me and/or my minor child or legal ward in relation to the premises and operations of THIS STABLE, to include while riding, handling, or otherwise being near horses owned by me or owned by THIS STABLE, or in the care, custody or control of THIS STABLE, whether on or off the premises of THIS STABLE, but not limited to being on THIS STABLE’S premises.[19]
4. Plaintiffs allege that at some point during the ride, M.N. fell off her horse and was injured.[20]
DISCUSSION
Defendant’s Motion to Strike is Denied
Defendants moved to strike Plaintiffs’ Supplemental Response under Fed. R. Civ. P. 6, arguing it was filed untimely.[21] Although Defendant is correct that the Supplemental Response was filed untimely, the Motion to Strike will be denied.
DuCivR 7(1)(b)(3)(a) requires a party responding to a motion for summary judgment to file the response within 28 days of service.[22] Plaintiffs do not dispute that the Supplemental Response was filed more than 28 days after the Motion was served. Therefore, the Supplemental Response was filed untimely.
Rule 6 of the Federal Rules of Civil Procedure allows for an extension of a deadline after the deadline has passed. The United States Supreme Court has instructed courts that “any postdeadline extension [under Rule 6] must be on ‘upon motion made’ . . . .”[23] However, Rule 6(b)(1) should be “liberally construed to advance the goal of trying each case on the merits.”[24]Ute Indian Tribe of the Uintah & Ouray Rsrv. v. McKee[25]construed an opposition to a motion to strike as a “motion made” under Rule 6(b). For the same reasoning, the Supplemental Response is construed as a motion under Rule 6(b). Like the opposition in Ute Indian Tribe, the Supplemental Response contains a high degree of formality and precision, and presents arguments for an extension under Rule 6. Defendants have been noticed of and were permitted to respond to Plaintiffs’ arguments in the form of a reply. Therefore, the filing will be accepted if Plaintiffs have demonstrated excusable neglect.
When considering whether a Rule 6(b)(1) movant has shown excusable neglect, a court should consider (1) the danger of prejudice to the nonmoving party; (2) the length of the delay and any impact it may have on judicial proceedings; (3) the reason for the delay, including whether it was within reasonable control of the movant; and (4) whether the movant acted in good faith (the “Pioneer factors”).[26] Defendants filed their Motion for Summary Judgment on September 16, which included three new affidavits which Plaintiffs claim had not been disclosed to them prior to the Motion’s filing.[27] Plaintiffs filed a timely response on October 14[28], and then a supplemental response on October 28, which included a new affidavit from Mike Pelly, who was in the riding party when M.N. was allegedly injured.[29] Plaintiffs assert the reason for the late filing of the supplemental affidavit was that due to Defendants’ recent disclosure of new evidence, they were “put in the position of having to investigate, contact witnesses, and obtain refuting Affidavits on short notice.” and they were unable to obtain the Pelly affidavit prior to October 28.[30]
While Plaintiffs should have filed a motion to extend time, their actions are excusable under the circumstances. There is little danger of prejudice to Defendants, as they were able to respond to Plaintiffs’ arguments concerning the supplemental affidavit in a Supplemental Reply.[31] The length of the delay was only a matter of weeks, which courts have typically found to not be substantial, and will have minimal impact or delay on trial.[32] And all indications are that Plaintiffs acted in good faith. At least three of the four Pioneer factors favor a finding of excusable neglect. Accordingly, Defendants’ Motion to Strike will be denied, and Plaintiffs’ Supplemental Response and attached affidavit will be accepted.
Defendants’ Motion for Summary Judgment Will be Granted in Part and Denied in Part
“Summary judgment is proper if the movant demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.”[33] In applying that standard, a court views the factual record and any reasonable inferences therefrom in the light most favorable to the nonmoving party.[34] There is a genuine dispute of material fact if, based on the record as a whole, a reasonable factfinder could find in favor of the nonmoving party.[35]
A reasonable factfinder could find that Defendants were grossly negligent. Therefore, summary judgment will be denied on that count. However, a reasonable factfinder could not find Defendants committed intentional infliction of emotional distress. Therefore, summary judgment will be granted on that count.
A
Reasonable Factfinder Could Conclude Defendants Were Grossly Negligent
The Prior Ruling identified two pieces of evidence Plaintiffs submitted which, if believed by a jury, could support a finding of gross negligence. First, Plaintiffs submitted evidence that helmets were not offered. Second, Plaintiffs submitted evidence that Clay Doe encouraged the horses to go faster at one point, even though the horses carried inexperienced riders.
“In Utah, gross negligence is ‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'”[36]Under Utah law, resolution of a gross negligence claim is typically within the province of the factfinder.[37] Summary judgment is only appropriate on a gross negligence claim when “reasonable minds could reach but one conclusion” as to whether a defendant observed even slight care.[38]
After submitting multiple sets of affidavits alongside a renewed motion for summary judgment, Moving Defendants argue they have established that no reasonable fact finder could find helmets were not offered or the horses were encouraged to go faster. But the new affidavits only set up genuine issues of material fact, asking the court to resolve disputed questions of fact or credibility. Those questions are more properly addressed to the factfinder. Because there is sufficient evidence for a factfinder to conclude helmets were not offered to the group or that the horses were encouraged to go faster, and these acts may have caused M.N.’s injuries, summary judgment will be denied.
(1) There is Sufficient Evidence for a Factfinder to Conclude Helmets were not Offered to the Group
A reasonable factfinder could also conclude that Plaintiffs were not offered helmets by Moving Defendants. Plaintiffs have submitted affidavits by both Supnet[39] and a third-party present on the trail ride that day, Mike Pelley[40], that they did not observe helmets being offered to the group. Moving Defendants counters with affidavits from Jack Ruggles[41], Sheryl Mintz (who was a wrangler on the day of the incident at question)[42], and Dr. Fred Schwendeman, another third-party on the trail ride[43], that they observed helmets were made available to all members of the ride. It is the province of the factfinder, not a court ruling on a motion for summary judgment, to resolve competing and contradictory pieces of evidence.
Defendants argue that even taking Plaintiffs’ proffered affidavits as true, no factfinder could conclude that helmets were not offered to the group.[44] They argue the witnesses cannot testify that no one received a helmet, just that they did not personally observe any helmets being offered. But a reasonable factfinder could infer from Supnet and Pelley’s affidavits that no helmets were offered to the group. Taking all inferences in the light most favorable to Plaintiffs, a reasonable factfinder could find that helmets were not offered to the group.
Defendants also suggest that because Plaintiffs signed the Release, which contains a clause agreeing that the signer had been offered a helmet, no factfinder could conclude that Plaintiffs were not offered helmets.[45] While that clause may be evidence that Plaintiffs were offered helmets and may be relevant in evaluating an assumption of risk defense, it is not dispositive of helmets being actually provided. Resolution of such a question is within the province of the factfinder.
Moving Defendants also argue that any actions in failing to offer helmets were “at most” negligent, not grossly negligent.[46] The Prior Ruling concluded that a factfinder could find failure to offer helmets was grossly negligent. Moving Defendants have not offered any contrary case law. A reasonable factfinder could conclude a failure to offer helmets on a horseback ride constituted the failure to observe even slight care.
Therefore, a reasonable factfinder could conclude that Plaintiffs were not offered helmets, and such a fact-finding could constitute gross negligence.
(2) There is Sufficient Evidence for a Factfinder to Conclude that Clay Doe Told the Riders to Quicken the Pace.
There is sufficient evidence that Clay Doe may have told the riders to “quicken the pace, ” and that statement could support a claim for gross negligence. Plaintiffs have submitted an affidavit by Supnet that Clay Doe instructed the riders to quicken the pace. Supnet states in her affidavit that she heard Clay Doe make the statement, temporarily left M.N., and then returned to find M.N. fallen and injured on the ground.[47] Defendants argue that this evidence is insufficient to show that the statement to “quicken the pace” was the but for cause of M.N.’s injuries.[48] But in a motion for summary judgment, a court should make all inferences in favor of the non-moving party.[49] A reasonable factfinder could infer from Supnet’s affidavit that Clay Doe’s statement was the but for cause of M.N.’s injury, and led to M.N.’s horse accelerating, M.N. falling off her horse, and M.N.’s injury.
Moving Defendants further argue that Clay Doe was an independent contractor, and therefore, Moving Defendants cannot be liable under this theory.[50] If Clay Doe was an independent contractor, it is possible that Moving Defendants would not be liable for his actions. The status of Clay Doe as an independent contractor depends on many facts.[51] However, resolution of this question would have no effect on the Motion for Summary Judgment because other actions by Moving Defendants, such as the alleged failure to offer helmets, could support a finding of gross negligence. Therefore, whether Clay Doe was an independent contractor will not be resolved at this time.
(3) Plaintiffs’ affidavits are not “self-serving” and are proper to oppose summary judgment.
Defendants additionally argue that the affidavits Plaintiffs submit are “self-serving” and are thus insufficient to oppose summary judgment.[52] Their focus on whether the affidavits are self-serving is misplaced. “[V]irtually any party’s testimony can be considered ‘self-serving,’ and self-serving testimony is competent to oppose summary judgment.”[53] “So long as an affidavit is based upon personal knowledge and sets forth facts that would be admissible in evidence, it is legally competent to oppose summary judgment, irrespective of its self-serving nature.”[54] The affidavits Plaintiffs have submitted are based in key part on the declarant’s firsthand knowledge and observations, and are thus sufficient to oppose summary judgment.
Assumption of Risk Does Not Bar Plaintiffs’ Negligence Claims
Defendants initially argue Plaintiffs assumed the risk of any harm, based on the Release, the inherent risks of horseback riding, and Plaintiffs’ knowing disregard of those risks.[55] To the extent an assumption of the risk argument is relevant here, it will be a question for the factfinder to consider, preventing summary judgment on this issue.
There are three types of assumption of risk in Utah: primary express, primary implied, and secondary.[56]
• Primary express assumption of risk “involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another.”[57]
• Primary implied assumption of risk occurs in inherently risky activities, where the defendant as a matter of law owes no duty of care to a plaintiff for certain risks because no amount of care can negate those risks.[58]
• Secondary assumption of risk occurs when a person voluntarily but “unreasonabl[y] encounter[s] . . . a known and appreciated risk.”[59] Secondary assumption of risk is treated akin to contributory negligence, and is “no longer recognized in Utah as a total bar to recovery.”[60]
While Defendants presumably are arguing that the primary express and primary implied types of assumption of risk are relevant here, their arguments that Plaintiffs knowingly disregarded the risks of horse-riding seems more akin to secondary assumption of risk. Regardless of the type of assumption of risk Defendants are arguing, none would allow summary judgment to be granted on Plaintiffs’ claims.
Primary express assumption of risk does not bar Plaintiffs’ claims. Primary express assumption of risk allows a party to contract with another that they will not sue in case of injury or loss. This type of assumption of risk is more closely related to contract law, and typically takes the form of preinjury liability releases, such as the Release in this case.[61] The Prior Ruling held that the Release does not bar Plaintiffs’ claims for gross negligence. The Release shows that Plaintiffs only agreed to assume those “risks, conditions, & dangers [which] are inherent” to horseback riding. As discussed below, the negligence Defendants are accused of is not the type “inherent” to horseback riding. Accordingly, primary express assumption of risk does not bar Plaintiffs’ claims on this record.
Primary implied assumption of risk does not bar Plaintiffs’ claims. Primary implied assumption of risk only applies to “inherently risky” activities. In order for primary implied assumption of risk to bar a plaintiff’s claims, the injury must have resulted from a risk “inherent” to an activity, and be one that a defendant cannot eliminate through imposition of reasonable care.[62] Utah’s Equine and Livestock Activities Act (the “Act”)[63] has essentially codified this doctrine as it relates to horse-related injuries.[64] Both the Act and the doctrine of primary implied assumption of risk distinguish between injuries resulting from the inherent risks of the relevant activity and injuries resulting from negligent behavior. Inherent risks of horseback riding may include a horse’s propensity to bolt when startled or other unpredictable behavior.[65] It may also refer to a rider’s failure to control the animal or not acting within one’s ability.[66] If an injury “was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not . . . an inherent risk” of an inherently risky activity.[67] M.N.’s injury was alleged to have been caused by the grossly negligent behavior of Defendants in failing to offer M.N. a helmet and in urging the horses to speed up. These actions are not unavoidable risks – these risks could be eliminated by use of reasonable care. Whether primary implied assumption of risk could bar Plaintiffs’ claims depends on the factfinder’s conclusions as to what caused the injury. The disputed factual circumstances surrounding M.N.’s injury means that this question is not amenable to resolution on summary judgment. Therefore, primary implied assumption of risk would not bar M.N.’s claims at this stage.
Secondary assumption of risk does not bar Plaintiffs’ claims. Secondary assumption of risk, “the unreasonable encountering of a known and appreciated risk, ” is more properly viewed as an “aspect of contributory negligence.”[68] Contributory negligence is not a complete bar to recovery, but rather involves the apportionment of fault. Once the combined negligence of plaintiff and defendant has been established, evaluation of a comparative or contributory negligence defense is within the province of the factfinder.[69] There are genuine issues of material fact regarding both Defendants’ and Plaintiffs’ alleged negligence.[70] Therefore, it will fall to the fact finder to apportion fault in this case, and summary judgment based on secondary assumption of risk will not be granted.
The Prior Ruling Granted Summary Judgment on the Negligent Infliction of Emotional Distress Claim
Moving Defendants argue that summary judgment should be granted on the negligent infliction of emotional distress claim. The Prior Ruling already granted summary judgment on that claim, ruling that a negligent infliction of emotional distress claim was barred by the Release. Therefore, this argument is moot.
Summary Judgment Will be Granted on the Intentional Infliction of Emotional Distress Claim
Moving Defendants also request summary judgment on Plaintiffs’ intentional infliction of emotional distress claim (“IIED”). As Defendants correctly point out, the Prior Ruling did not rule on whether sufficient evidence had been presented to support an IIED claim, but only concluded that an IIED claim was not barred by the Release.
To establish a claim for IIED under Utah law, Plaintiffs must prove that (1) Defendants’ conduct was outrageous and intolerable; (2) that Defendants intended to cause or acted in reckless disregard of the likelihood of causing emotional distress; (3) that Plaintiffs suffered emotional distress; and (4) that distress was proximately caused by Defendants.[71] “[T]o to sustain a claim for intentional infliction of emotional distress, a defendant’s alleged conduct must be more than unreasonable, unkind, or unfair[;] it must instead be so severe as to ‘evoke outrage or revulsion.'”[72] Conduct is not outrageous merely because it is “tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal.” Rather, Utah courts have described the type of conduct required to sustain a claim for IIED as “extraordinary vile conduct, conduct that is atrocious, and utterly intolerable in a civilized society.”[73] The Tenth Circuit has similarly described Utah law as setting “high standards” to establish a claim for IIED.[74]
No reasonable factfinder could find that the conduct alleged by Plaintiffs rises to the level of outrage. Defendants’ alleged conduct in failing to provide a helmet and encouraging inexperienced riders to “quicken the pace” could evidence Defendants failed to observe even slight care, which would be sufficient to state a claim for gross negligence.[75] But as a matter of law, the alleged conduct does not constitute the extreme and outrageous conduct which Utah courts have required to establish a claim for IIED.
CONCLUSION AND ORDER
For the foregoing reasons, Moving Defendant’s Motion[76] is GRANTED IN PART and DENIED IN PART. Summary Judgment will be entered on the claim for Intentional Infliction of Emotional Distress. Summary Judgment will not be entered on the claim for gross negligence. Additionally, Defendants’ Motion to Strike[77] is DENIED.
18
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Notes:
[1] Complaint, docket no. 2, filed March 4, 2019.
[3] First Amended Complaint, docket no. 33, filed April 14, 2020, at 3-4.
[4] Motion to Dismiss and for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC, docket no. 38, filed October 30, 2020.
[5]
Nasserziayee v. Ruggles, No. 4:19-CV-00022 DN PK, 2021 WL 778603 (D. Utah Mar. 1, 2021).
[9] Docket no. 63, filed September 16, 2021.
[10] Plaintiffs’ Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues, docket no. 68, filed October 14, 2021.
[11] Plaintiffs’ Supplemental Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues, docket no. 70, filed October 28, 2021.
[12] Defendants’ Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 71, filed October 28, 2021.
[13] Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 (“Motion to Strike), docket no. 72, filed November 3, 2021.
[14] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1, docket no. 75, filed November 15, 2021.
[15] Docket no. 77, filed November 17, 2021.
[16] Defendants’ Supplemental Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 78, filed November 29, 2021.
[17] Motion at 4, Statement of Undisputed Facts at ¶1; Opposition at 3-4.
[19] Motion at 4-5, Statement of Undisputed Facts at ¶2; Opposition at 4-6.
[20] Motion at 10, Statement of Undisputed Facts at ¶20.
[23]
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 873 (1990).
[24]
Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016).
[25] No. 2:18-CV-00314 CW, 2019 WL 1931713, at *4 (D. Utah May 1, 2019).
[26] Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
[27] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 at 2.
[28] Plaintiffs’ Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues.
[29] Plaintiffs’ Supplemental Response to Defendants Ruggles’ and Zion Canyon Trail Rides at Jacob’s Ranch, LLC’s Motion for Summary Judgment on All Remaining Issues.
[30] Plaintiff’s Response to Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC Motion to Strike Docket Document Nos. 70 and 70-1 at 2.
[31] Defendants’ Supplemental Reply Memorandum Supporting Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 78, filed November 29, 2021.
[32] See Ute Indian Tribe, 2019 WL 1931713, at *6.
[33]
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)).
[35] See Finlinson v. Millard Cty., 455 F.Supp.3d 1232, 1238 (D. Utah 2020).
[36]
Penunuri v. Sundance Partners, Ltd., 423 P.3d 1150, 1159 (Utah 2017).
[37] Milne v. USA Cycling Inc., 575 F.3d 1120, 1130 (10th Cir. 2009)
[38] Penunuri, 423 P.3d at 1159.
[39] Affidavit of Lenore Supnet, docket no. 68-1, filed October 14, 2021.
[40] Affidavit of Mike Pelley, docket no. 70-1, filed October 28, 2021.
[41] Declaration of Jack Ruggles in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 64, filed September 16, 2021.
[42] Declaration of Sheryl Mintz in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 66, filed September 16, 2021.
[43] Declaration of Dr. Fred Schwendeman in Support of Motion for Summary Judgment by Defendants Jack Ruggles, Jane Doe Ruggles, and Zion Canyon Trail Rides at Jacob’s Ranch, LLC on All Remaining Issues, docket no. 67, filed September 16, 2021.
[47] Affidavit of Lenore Supnet, docket no. 68-1, filed October 14, 2021, at 4.
[49]
Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984).
[51] The allegation in the Amended Complaint that Defendant Jack (“Pappy”) Ruggles and Defendant Jacobs Ranch stated Defendant Joshua Ruggles was acting as an independent contractor is, like the Moving Defendants’ affidavits, not conclusive of independent contractor status. Amended Complaint at 3.
[53]
Greer v. City of Wichita, Kansas, 943 F.3d 1320, 1325 (10th Cir. 2019).
[54]
Janny v. Gamez, 8 F.4th 883, 900 (10th Cir. 2021) (quoting Speidell v. United States ex rel. IRS, 978 F.3d 731, 740 (10th Cir. 2020)).
[56]
Rutherford v. Talisker Canyons Fin., Co., LLC, 445 P.3d 474, 488-89 (Utah 2019).
[57] Jacobsen Const. Co. v. Structo Lite Eng’g, Inc., 619 P.2d 306, 310 (Utah 1980).
[58] Rutherford, 445 P.3d at 489.
[59]
Id. (quoting Moore v. Burton Lumber & Hardware Co., 631 P.2d 865, 870 (Utah 1981)) (alterations and omission in original).
[60]
Hale v. Beckstead, 116 P.3d 263, 268 (Utah 2005).
[61] See Rutherford, 445 P.3d at 489.
[63] Utah Code Ann. § 78B-4-202(2).
[64] See Feldman v. Salt Lake City Corp., 484 P.3d 1134, 1145 (Utah 2021) (discussing how the Utah legislature codified primary implied assumption of risk in the context of recreational park related injuries).
[65] See Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 989 (Utah 2013).
[66] Utah Code Ann. § 78B-4-201(5).
[67] See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991) (discussing primary implied assumption of risk in the context of ski resorts).
[69] See Acculog, Inc. v. Peterson, 692 P.2d 728, 730 (Utah 1984).
[70] See Mason v. Brigham Young Univ., No. 2:06-CV-826 TS, 2008 WL 312953, at *2 (D. Utah Feb. 1, 2008).
[71] Retherford v. AT & T Commc’ns of Mountain States, Inc., 844 P.2d 949, 971 (Utah 1992), holding modified by Graham v. Albertson’s LLC, 462 P.3d 367 (Utah 2020).
[72]
Davidson v. Baird, 438 P.3d 928, 945 (Utah App. 2019), cert. denied, 440 P.3d 692 (Utah 2019) (quoting Cabaness v. Thomas, 232 P.3d 486 (Utah 2010), abrogated on other grounds by Gregory & Swapp, PLLC v. Kranendonk, 424 P.3d 897 (Utah 2018)) (internal quotation marks omitted).
[73]
Chard v. Chard, 456 P.3d 776, 791 (Utah App. 2019) (quoting Retherford, 844 P.2d at 977 n.19).
[74]
Hogan v. Winder, 762 F.3d 1096, 1112 (10th Cir. 2014).
[75] Penunuri, 423 P.3d at 1159.
[76] Docket no. 63, filed September 16, 2021.
[77] Docket no. 73, filed November 3, 2021.
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
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We are getting closer; New Helmet from 6D is pretty amazing and adds the most protections for head injuries of any helmet on the market.
Posted: March 7, 2018 Filed under: Uncategorized | Tags: 6D Helmets, Bern, Bern Hard Hat, Concussions, Helmets, Technology Leave a commentStill no third-party testing to confirm any statements made by any helmet manufacturer; however, from my view, the engineer looks solid. It is the helmet I would wear. 6D Helmets does post testing from NIST (U.S. Commerce Department’s National Institute of Standards and Technology).
The 6D Helmet was tested by Dynamic Research, located in Torrance, California, again a rare occurrence to identify the testing lab that developed the data, lending more credibility to the data.
Summary
6D Helmets evolved from motorcycle helmets so the company’s background is solid. However, the forces on the head and brain in a motorcycle crash are quite different from those of a cycling crash. 6D seems to have taken this into consideration in the design of its cycling helmets. 6D refers to all the directions that the brain can be subject to impact including rotational.
6D Helmets advertises its helmets can deal with Low, Mid, and High-Velocity impacts with its designs. Low speed impacts have been the major issue in current ASTM helmet standards because under that standard, there is not enough pressure to crack the helmet, therefore, no dissipation. Basically, the EPS density used in helmets is too high to affect low-speed crashes.
There is also an argument that the venting in cycling helmets increases the issue because the engineering for the venting increases the issues the EPS can deal with, increases the EPS density to sustain an impact.
One of the big issues with EPS helmets is after a crash, determining if the EPS is intact and is the helmet still viable. 6D Helmets‘ mountain-bike helmet as a removable liner so you can inspect the EPS to determine if it has been compromised.
The information on the website contains a ton of testing information, and as stated above, testing from U.S. Commerce Department’s National Institute of Standards and Technology (NIST). The testing of the 6D Helmets is done against other unnamed helmets.
How I found out about 6D Helmets was a press release where they announced they had received a $250,000 grant as one of the finalists for a helmet competition. 6D Helmets won the competition.
However, that announcement that 6D Helmets won the competition listed the research lab doing the testing Dynamic Research, as a co-winner of the competition.
There is a lot of engineering, a lot of data and the classic website charts on the 6D Helmets website. I’ve looked it over and if true, it means another leap forward in helmet technology for human-powered recreation. You should read the information and study it for yourself as I’m not an engineer, and I could be wrong. I don’t think so……, but I could be.
Currently, 6D Helmets has helmets available for downhill and trail cycling. However, they hope to expand into ski soon and other sports also.
So?
I’m going to get one. I’m still going to wear my Bern Hard Hat (See A new idea that makes sense in helmets: the Bern Hard Hat), which is no longer produced I’ve been told, while skiing, if I wear a helmet. I believe that the Bern Hard Hat, like the 6D Helmet does a better job of protecting against concussions, the real issue with any head injury.
No helmet is going to keep you alive if you crash hard. Internal bleeding, a torn ascending aorta, is probably how you are going to die, no matter what is on your head. However, these helmets extend the protection from tree branch hits to maybe protecting your brain from a concussion.
What do you think? Leave a comment.
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Copyright 2017 Recreation Law (720) 334 8529
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It’s a balance, healthy kids versus safe kids, health adults versus safe adults, polluted air versus clean air or more importantly, personal choice versus you telling me what to do.
Posted: March 18, 2015 Filed under: Cycling | Tags: biking, Cycling, Helmets, Sweden Leave a commentStudy from Sweden looks at the effects of cycling after a 2005 law requiring children to wear helmets while riding bikes.
This article came from a study by the Swedish Association of Transportation Planners. The article, What happens when you mandate helmet-wearing among young Swedish cyclists? is based on the study.
These are quotes from the article. Emphasize in bold is mine.
Mandatory helmet laws have been controversial in that they seem to have a limited effect on the number of head injuries, if at all, but instead are correlated with a decrease in cycling numbers.
Graph 1 shows the number of head injuries as a share of injuries to all parts of the body. The downward sloping lines indicate that head injuries are falling faster than other injuries.
As we can see there does not seem to be a difference between the trends of the different modes, suggesting that if there is any fall in the share of head injuries it is likely to be an effect of something that also applies to other or all road users.
However there does seem to be another effect of helmet laws, namely a decline in cycling among school children. In 1983 57% of children aged 7-9 had permission from their parents to bike to school without adult companion, and for the age group 10-12, 94% had such permission. By the year 2007 this had decreased to 25% and 79% respectively. Bearing in mind, the helmet law was introduced in 2005, we can’t be sure of a correlation, because the data consists of surveys from 1983 and then 2007. But we do also have data recording that the share of school journeys by bicycle fell from 33% in 2006 one year after the legislation to 29% in year 2012. The evidence does suggest that the effect of the helmet law primarily is that fewer children bike to school.
So the data does show a decline in cycling, but without annual surveys it’s hard to be sure of a correlation. However, a Danish report made the same link between declining cycling to school and helmet promotion and safety/scare campaigns. They determined that half the decline in cycling was caused by these campaigns, and half was caused by other factors such as more car traffic and longer distances to school.
From my perspective, laws telling me how to live don’t work, and this study shows that. Whether I wear a helmet is more personal issue that I should be allowed to decide.
More importantly, cycling increases the cyclist’s health, decreases air pollution and general promotes health. That is a greater benefit to all of us then the individual benefit of forcing someone to do something they may or may not want to do.
See: What happens when you mandate helmet-wearing among young Swedish cyclists?
Other Articles about this subject:
Bike Share programs flourish when helmets are not required http://rec-law.us/WrqmXI
Study shows that head injuries are on the rise on the slopes even though more people are wearing helmets http://rec-law.us/U91O73
Law requires helmets, injuries down fatalities up? http://rec-law.us/YwLcea
Great editorial questioning why we need laws to “protect” us from ourselves. http://rec-law.us/Ayswbo
Survey of UK physicians shows them against mandatory bicycle helmet laws. http://rec-law.us/sYuH07
Recent UK poll shows that 10% of cyclists would quite biking if there was a compulsory helmet law. http://rec-law.us/t1ByWk
What do you think? Leave a comment.
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#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, Cycling, Helmets, Sweden, Biking
Want to make more money in retail? Then tell your clients that what helmet they purchase will affect their head. Spend more money, usually, and get more protection
Posted: February 19, 2014 Filed under: Uncategorized | Tags: Concussion, first aid, Football helmet, Giro, helmet, Helmets, Impact, Journal of Neurosurgery, Kali, Lazer, Manufacturing, MIPS, Riddell, Softshell Leave a commentWant to make more money in retail? Then tell your clients that what helmet they purchase will affect their head. Spend more money, usually, and get more protection
I am dismayed that some manufacturers, and many retailers sell helmets on price. A study recently showed that two helmets that both passed the requisite test, protected people from concussions at vastly different rates. Are you selling protection to people or just satisfying their need to think they are protecting themselves or their children?
The study was written about in Study Shows Concussion Risk ‘Dependent on Helmet’. The study can be found in the Journal of Neurosurgery and was titled “Can helmet design reduce the risk of concussion in football?: Technical note”. Simply stated a comparison was made between two helmets manufactured by the same company. Both helmets met all the requirements to be sold and used playing football.
However, one helmet had 54% fewer concussions by the players than the other!
Buying a helmet is not just putting something on a kid’s head and saying it looks good or is “pretty.” As a retailer, you have no legal obligation, but I think a great big ethical obligation to inform parents and purchases that there is a difference in the protection that helmets can provide.
There are helmets that are doing more than just passing the required tests.
Giro has a new helmet for skiing: Combyn™ helmet has a softshell design creating a greater range of hits that can be protected as well as greater over-all coverage for your head.
Lazer is coming out with several models for kids and adults with the MIPS protection system in the helmet. Ski helmets with MIPS will be Mozo DLX and Dissent DLX. Bike helmets with MIPS are P’Nut and Nut’Z kids helmets (available now) and the Beam and Helium (available spring for Beam and later in 2014 for Helium)
Kali Helmets: Kali is coming up with some new ideas in helmet technology that will change the way helmets perform.
MIPS: If you need a helmet for any sport that is not a DOT helmet, get one with MIPS inside. Testing shows it will make a difference.
Do Something
If you are serious about protecting your head, you need to drop the cash necessary to get a good helmet. Find out what each helmet does and which one fits. Don’t worry about what it looks like. A helmet’s job is to keep your head looking the same way, so don’t worry about how you look wearing the helmet. Just be happy to take it off.
More articles on Helmets
A helmet manufacture understands the issues(Uvex, Mouthguards) http://rec-law.us/xpxX6n
A new idea that makes sense in helmets: the Bern Hard Hathttp://rec-law.us/yPerOd
Bicycling Magazine, May 2012: Safe for Any Speed http://rec-law.us/Vkle60
Does being safe make us stupid? Studies say yes. http://rec-law.us/Ao5BBD
Great article on why helmet laws are stupid http://rec-law.us/zeOaNH
Great editorial questioning why we need laws to “protect” us from ourselves. http://rec-law.us/Ayswbo
Helmet death ignited by misconception and famous personalities http://rec-law.us/wfa0ho
Helmets do not increase risk of a neck injury when skiing http://rec-law.us/wPOUiM
Helmets: why cycling, skiing, skateboarding helmets don’t work http://rec-law.us/RVsgkV
If you provide a bike in CT you don’t have to provide a helmet http://rec-law.us/THidx6
Law requires helmets, injuries down fatalities up? http://rec-law.us/YwLcea
Mixed emotions, but a lot of I told you so. http://rec-law.us/ysnWY2
More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour http://rec-law.us/z4CLkE
National Sporting Goods Association reports that Helmet use at US Ski Areas increased during the 2009-10 ski season http://rec-law.us/zZTzqa
OSHA Officially recommending helmets for ski area employees http://rec-law.us/xo5yio
Other Voice on the Helmet Debate http://rec-law.us/AzaU9Q
Skiing/Boarding Helmets and what is the correct message http://rec-law.us/AzeCpS
Study shows that head injuries are on the rise on the slopes even though more people are wearing helmets http://rec-law.us/U91O73
Survey of UK physicians shows them against mandatory bicycle helmet laws. http://rec-law.us/sYuH07
The helmet issue is so contentious people will say the stupidest things http://rec-law.us/zhare9
What do you think? Leave a comment.
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HIP-TEC Unveils the Future of Head Injury Prevention Technology
Posted: August 8, 2013 Filed under: Uncategorized | Tags: Bicycle helmet, Concussion, Head injury, helmet, Helmets, Hip-Tec, Johns Hopkins University, San Francisco, TEC Leave a commentThese guys understand the issues. Wow!
Passion to Change Helmet Standards and Save Lives Drives HIP-TEC Founders
Check out the website: http://www.hip-tec.com
HIP-TEC (Head Injury Prevention Technology)—maker of the HIP-TEC Inside interior helmet protection system—today announced the company’s global launch and partnership program. HIP-TEC focuses on making the best impact-absorbing interiors for the world’s top helmet companies.
HIP-TEC’s Inside interior helmet protection system is designed to fully integrate with other companies’ helmet shell concepts in an ingredient brand approach, meeting the needs and new benchmarks of the action sports industry and athletes that continue to push the limits of their sports. HIP-TEC’s formulated and tested interior capsule dramatically exceeds today’s outdated helmet standards and designs, which concentrate on reducing single, high impact skull fractures.
In extensive independent testing at certified labs, with HIP-TEC implemented into a partner’s helmet, the severity of an impact is reduced by 40 – 60 percent across all angles, impact testing velocities and drop test heights.
“Our interior technology system is a game changer because it mitigates against all three accident scenarios that can contribute to head injuries — high velocity impacts, low speed falls and rotational impacts,” says HIP-TEC co-founder Nick Turner. “Not only do helmets with HIP-TEC Inside technology significantly reduce the force of these impacts better than top helmet brands’ current interior technologies, HIP-TEC Inside outperformed while being 20 percent thinner than a traditional ski or bike helmet’s protective core.”
The technology has been co-developed over the past decade at internationally certified labs with development through Johns Hopkins University joint research projects and testing at HIP-TEC’s Truckee-based helmet lab.
Current medical research indicates that the lower the g-forces associated with an impact, the less likely a concussion will occur. HIP-TEC’s patent-pending layered design, lowers g-forces during an accident by slowing down the speed at which the head feels the weight of an impact, thus lowering the critical peak acceleration to dead stop and decreasing head and brain injuries. The formulated design of HIP-TEC allows protective layers to engage together as one unit or as separate energy absorbers depending on the severity of an impact.
“Because of current standards decision makers refusal to recognize the progression of sport and new medical research findings, helmets are not evolving at the speed of the athletes they are designed to protect,” comments HIP-TEC co-founder Tom Feiten. “International standards still require that a helmet is tested to keep an impact below 250 g’s (g-force) and then it’s certified to sale. We firmly believe helmets still need to pass this standard, but at the same time they also must address accidents that are causing the majority of concussions happening at smaller, low falls that register between 90 and 150 g’s. HIP-TEC Inside does this and does it better when engineered into another brand’s helmet.”
With its proven ability to lower the severity of head injuries and compatibility with current helmet shell designs, HIP-TEC technology is set to revolutionize action sports safety.
“It’s our friends and families pushing these sports and getting injured,” adds Turner. “Our mission and passion is to protect them through education and offering helmets brands the most protective interior technologies to integrate into their products.”
Based in Truckee, California, HIP-TEC (Head Injury Prevention Technology) solely focuses on making the best impact absorbing interiors for the world’s top helmet companies. The proprietary technology far outperforms current products and standards, meeting the needs and new benchmarks of industries and athletes that continue to push limits. HIP-TEC is part of FT Accelerator, a San Francisco-based growth program for fashion tech startups. Visit http://www.hip-tec.com to learn more about our technology and the future of interior helmet design.
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Hopefully this will lead to better helmets that will make a difference.
Posted: April 24, 2013 Filed under: Cycling, Skiing / Snow Boarding | Tags: Australia, Concussion, Cycling, Edinburgh, Great Britain, Greater London, Head injury, helmet, Helmets, Research 3 CommentsArticle looks at dozens of studies in cycling head injuries in several countries.
There not need to say much, just read the following quotes then go read the entire article for yourself.
These sources show no improvement in serious injury trends as helmet use has become more common. Indeed, sometimes they suggest that the number or severity of injuries has increased.
In Great Britain, there was no detectable improvement in fatalities, serious injuries or the average severity of injuries to cyclists over the period 1985 to 2001, during which helmet use rose from close to zero to approx. 22%. Injury severity increased as helmet use became more common
In Greater London, cyclist injuries became more serious as helmet use increased in the mid 1990s. In Edinburgh, also with approx. 50% helmet wearing, casualties have become more serious as helmet use has increased
In the USA, cyclists suffered more head injuries in 2001 than in 1991 although helmet use had increased from 18% to 50%.
In Australia, helmet laws caused head injuries to fall by 11% to 21%. But cycle use fell by 30% to 60%, suggesting that those who continued to cycle were more at risk.
In New Zealand, large increases in helmet use have not brought any reduction in the proportion of serious head injuries. Some reduction in mild concussions and lacerations has been balanced by an increase in neck injuries
More generally, concerns have been expressed that helmets may increase the risk of the most serious types of head injury typical of road crashes and which involve rotational forces
In the coming years, there is going to be some major changes and revelations on helmets in skiing and cycling.
Remember you do not get a concussion when you hit your head. You get a concussion when your brain bounces back and forth inside your skull. Look at snow and look at your ski helmet and tell me which is softer. Which is going to absorb more? Which is going to slow the force to spread it out over time? Cycling helmets are slightly different because of the speed and chances of hitting pavement. However?
More importantly, why are head injuries increasing in all of those studies (except the Australian one) when helmet use is
increasing?
See What evidence is there that cycle helmets reduce serious injury?
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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Bike Share programs flourish when helmets are not required
Posted: February 27, 2013 Filed under: Cycling | Tags: Bike Share, Bike Sharing, Capital Bikeshare, Cycling, European Cyclists' Federation, helmet-lax Dublin, Helmets, National Highway Traffic Safety Administration, New York Times, Nice Ride, NYT, Vélib Leave a commentHealth Benefits increase when more people ride bikes
The article looks at bike share programs and what makes them successful. Contrary to popular belief, weather or terrain are not as important as the attitude that getting on a bike is more important than anything else. Anything else includes riding without a helmet.
One common denominator of successful bike programs around the world — from Paris to Barcelona to Guangzhou — is that almost no one wears a helmet, and there is no pressure to do so.
The article does not deny that wearing a helmet prevents head injuries. The article, like numerous studies have shown is that head injuries are exceedingly rare in cycling.
Yes, there are studies that show that if you fall off a bicycle at a certain speed and hit your head, a helmet can reduce your risk of serious head injury. But such falls off bikes are rare — exceedingly so in mature urban cycling systems.
The balance is the risk of a head injury to the risk of other issues: “means more obesity, heart disease and diabetes.” Not cycling also leads to more pollution in our cities. Mathematical modeling shows the risk of not cycling outweighs the risks of cycling without a helmet 20 to 1.
Statistically, if we wear helmets for cycling, maybe we should wear helmets when we climb ladders or get into a bath, because there are lots more injuries during those activities.” The European Cyclists’ Federation says that bicyclists in its domain have the same risk of serious injury as pedestrians per mile traveled. [Emphasize added]
So if you want to reduce the risk of a head injury you should wear a helmet while walking; which is how cycling helmets were designed anyway. Cycling helmets only protect from being dropped on your head, or as a pedestrian from something dropping on your head. Not from falls that occur where you hit your head from the front, back or side. (See Helmets: why cycling, skiing, skateboarding helmets don’t work.)
Although not scientific, this is fairly clear that helmets may inhibit bike riding with bike share programs.
A two-year-old bike-sharing program in Melbourne, Australia — where helmet use in mandatory — has only about 150 rides a day, despite the fact that Melbourne is flat, with broad roads and a temperate climate. On the other hand, helmet-lax Dublin — cold, cobbled and hilly — has more than 5,000 daily rides in its young bike-sharing scheme.
Why should you understand this? Because public perception about helmets is important in promoting and encouraging the program. If you complain to government officials about bike share programs not requiring helmets, you will pay for that complaint with your wallet. Heart attacks and the problems of obesity will cost more than the rare head injury.
Instead of requiring helmets, we need to make cycling safer.
Instead of promoting helmet use, European cycling advocates say, cities should be setting up safer bike lanes to slow traffic or divert it entirely from downtown areas.
This is my favorite quote from the article.
Before you hit the comment button and tell me that you know someone whose life was probably saved by a bike helmet, I know someone, too. I also know someone who believes his life was saved by getting a blood test for prostate specific antigen, detecting prostate cancer.
Before you comment about your friend whose life was saved, which I have no doubt, remember I’ll respond with the above quote.
See To Encourage Biking, Cities Lose the Helmets
To read more about this issue see:
A father of a deceased skier pushing for a helmet law in New Jersey. http://rec-law.us/AAfNa6
A helmet manufacture understands the issues(Uvex, Mouthguards) http://rec-law.us/xpxX6n
A new idea that makes sense in helmets: the Bern Hard Hat http://rec-law.us/yPerOd
Bicycling Magazine, May 2012: Safe for Any Speed http://rec-law.us/Vkle60
California bill to require helmets on skiers and boarders under age 18 dies lacking governor’s signature. http://rec-law.us/ymLukz
Does being safe make us stupid? Studies say yes. http://rec-law.us/Ao5BBD
Great article on why helmet laws are stupid http://rec-law.us/zeOaNH
Great editorial questioning why we need laws to “protect” us from ourselves. http://rec-law.us/Ayswbo
Helmet death ignited by misconception and famous personalities http://rec-law.us/wfa0ho
Helmets do not increase risk of a neck injury when skiing http://rec-law.us/wPOUiM
Helmets: why cycling, skiing, skateboarding helmets don’t work http://rec-law.us/RVsgkV
I could not make my son wear a helmet so I’m going to make you wear one http://rec-law.us/xZjuvH
I once thought you had to take an IQ test to run to be a state legislator. You could run only if you flunk the test http://rec-law.us/x3nWN1
I once thought you had to take an IQ test to run to be a state legislator. You could run only if you flunk the test. http://rec-law.us/x3nWN1
If you provide a bike in CT you don’t have to provide a helmet http://rec-law.us/THidx6
Law requires helmets, injuries down fatalities up? http://rec-law.us/YwLcea
Mixed emotions, but a lot of I told you so. http://rec-law.us/ysnWY2
More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour http://rec-law.us/z4CLkE
National Sporting Goods Association reports that Helmet use at US Ski Areas increased during the 2009-10 ski season http://rec-law.us/zZTzqa
OSHA Officially recommending helmets for ski area employees http://rec-law.us/xo5yio
Other Voice on the Helmet Debate http://rec-law.us/AzaU9Q
Recent UK poll shows that 10% of cyclists would quite biking if there was a compulsory helmet law. http://rec-law.us/t1ByWk
Skiing/Boarding Helmets and what is the correct message http://rec-law.us/AzeCpS
Study shows that head injuries are on the rise on the slopes even though more people are wearing helmets http://rec-law.us/U91O73
Survey of UK physicians shows them against mandatory bicycle helmet laws. http://rec-law.us/sYuH07
The helmet issue is so contentious people will say the stupidest things http://rec-law.us/zhare9
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2012 Recreation Law (720) Edit Law
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss Jim Moss
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Helmets: why cycling, skiing, skateboarding helmets don’t work
Posted: August 15, 2012 Filed under: Cycling, Skiing / Snow Boarding | Tags: Bicycle helmet, Bike Helmet, biking, CPSC, Cycling, Cycling Helmet, helmet, Helmets, skiing, UIAA 3 CommentsThanks to Brad Waldron at Kali Protectives for giving me the visual to explain this.
A helmet needs to absorb energy to work. The more energy a helmet absorbs the more protection a helmet provides. If you look at the inside of your helmet
what is there to absorb energy?
A helmet does not work by being a hard surface to protect your head from head injuries. Hard surfaces protect your head from pointed objects. Think Knights of the Round Table and spears and arrows. If you are riding a bike or skiing and someone is shooting arrows at you, you need a hard helmet.
Hitting the ground is different. Your brain bounces around inside your skill causing damage; a concussion. You need something to absorb the impact and soften the blow or extend the time the impact (force) is being applied to your head, which softens the blow. Helmets as they are currently used, do not do that.
Think about the issue this way. If you drop a weight on an egg, say 11 pounds from 4 feet the egg is going to smash. If you put a book on top of the egg and drop the 11-pound weight the egg is still going to smash. The amount of energy transmitted to the egg maybe reduced by the book; however, the energy reduction is not enough to protect the egg.
A Bicycle or ski helmet is the same way. There is some energy absorption, but not enough to protect your brain.
If you want to know why I picked 11 pounds from 4 feet that is the test for helmets. Watch Video of cycling helmet testing. No one is testing the force on the head, if the helmet absorbs any of the force, or if the impact broke your neck.
On top of that, always remember the helmet is tested with the impact landing in the center top of the helmet. When you fall to make sure you drive your head into the ground hitting the helmet in the center on top of your head to receive the maximum protection.
See for yourself. This is the UIAA (European) Test for Helmets.
This test is for climbing and some European ski helmets. In the US, a bike helmet and ski helmets are not tested for lateral force, slippage or chin strap strength.
There are some organizations that test the helmets to greater extremes such as Consumer Reports, but all they are doing is testing the helmet. They are not looking at whether the helmet protects your head. See Consumer Reports Bike Helmet Testing.
We are not testing whether a helmet looks good after an impact. We are testing whether the helmet protects your head from an impact and the drop test does not test that sufficiently, if at all.
If you want to test this yourself, figure a way to stick an egg under a helmet and drop a weight on the helmet. The egg is still going to crack or break.
Yes, your head is not an egg. It is just easier to see the results with an egg. The helmet did not decrease the pressure enough to protect the egg. The injury still occurred. If you could take the time to measure the breaking strength of an egg and then start below that number and drop weights on the helmet you would see a difference eventually which would be the amount of protections the helmet provides. However, that number would be small and probably no different from what a plastic bowl would do.
If you really want to test this, go buy two eggs. Drop one from 15 feet and see what happens to the egg. Tape the other one in your helmet and drop it from the same height. The egg will crack (and make a real mess in your helmet).
Want more laughs about this? Watch this video where a cardboard helmet does a better job of protecting your head, by absorbing more force, than a bicycle helmet. See Kranium helmet Crash Test
Yes, your head is not an egg. Yes, a helmet will protect you from minor hits. Yes, a helmet is probably better than not using a helmet, unless the process stops you from riding a bike or skiing. The health benefits of activity out weight the risk of a head injury.
If that is the case, then why not wear a helmet when you drive, shower or work in the kitchen. All three have a far greater risk of head injuries then cycling.
However, we have not looked at whether using helmets deters activities. See TEDxCopenhagen – Mikael Colville-Andersen – Why We Shouldn’t Bike with a Helmet. I love the fact the in the video Mr. Colville-Andersen lets you know that the helmet tests were designed for pedestrians wearing helmets. Also he points out that helmet laws do not reduce head injuries. They reduce the total number of people riding bikes, which results in a reduction of head injuries.
Nor have we looked at the issue of the advertised protection versus the real protection afforded by a helmet.
Finally, we have not looked at whether wearing a helmet makes you react in a way to protect other parts of your body rather than your head. If you fall you natural protect your head. Your arms go out to keep your head form hitting the ground and then your cradle your head from being hit or hitting the ground. This accounts for tons of videos and statements when people hold up their battered helmet and say my helmet saved my life.
However, a helmet will not save your life. If you want to be cool and have a helmet that might protect your head watch this video: Hövding krocktest
But without bike and ski helmets where would we mount our video cameras?
References:
Gourley, Jim, Bicycle Times August 1, 2011, Pull Your Head Out of Your…Helmet
Kim Gorgens: Protecting the brain against concussion
A.J. Jacobs: How healthy living nearly killed me
TEDxCopenhagen – Mikael Colville-Andersen – Why We Shouldn’t Bike with a Helmet
Other Articles on Helmets:
A father of a deceased skier pushing for a helmet law in New Jersey.
A helmet manufacture understands the issues(Uvex, Mouthguards)
A new idea that makes sense in helmets: the Bern Hard Hat
Does being safe make us stupid? Studies say yes.
Great article on why helmet laws are stupid
Great editorial questioning why we need laws to “protect” us from ourselves.
Helmet death ignited by misconception and famous personalities
Helmets do not increase risk of a neck injury when skiing
I could not make my son wear a helmet so I’m going to make you wear one
Mixed emotions, but a lot of I told you so.
OSHA Officially recommending helmets for ski area employees
Other Voice on the Helmet Debate
Recent UK poll shows that 10% of cyclists would quite biking if there was a compulsory helmet law.
Skiing/Boarding Helmets and what is the correct message
Survey of UK physicians shows them against mandatory bicycle helmet laws.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2012 Recreation Law (720) Edit Law
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
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Do you really want to sell helmets this way? Does this article promote the industry?
Posted: June 6, 2012 Filed under: Cycling | Tags: CPSC, Cycling, Cycling Helmet, helmet, Helmets, Retail, U.S. Consumer Product Safety Commission, United States Leave a commentOr does this article just create liability issues?
I recently read an article in a trade magazine about selling cycling helmets. As usual, it caught my attention, but for different reasons. This article was directed at retailers as an educational tool on how to sell helmets. However, the article was at best misleading and would probably get the retailer in trouble in the future. Besides, it created a sales program focused on the negative side of cycling rather than the benefits.
Here are the quotes that I found amusing, actually laughable if they were not so wrong.
As a bike storeowner,thisrgivessyouvbothoanbincredibleropportunityr–uandya–powerfuloresponsibilityi–itotupsell yourlbikeucustomerssandeconvinceothemctotpurchaseuachelmet andmperhapspsavepa life.a life.
It’s your responsibility to inform your customers of the invaluable protection a helmet provides, the importance of wearing a safe helmet that fits well, as well as the dangers and statistics of cycling-related head injuries.
According to the Insurance Institute for Highway Safety (IIHS), 91% of bicyclists killed in 2009 weren’t wearing helmets. The IIHS has estimated that wearing a helmet can reduce head injuries by 85%.
In the United States the Consumer Product Safety Commission (CPSC) regulates helmet law.
…-keep a helmet in shambles from a crash on display and include a testimony about the life it saved…
[emphasize added]
Seriously? This was written let alone allowed into print?
However, it was the hocus pocus of a graph in the article that caught my eye.
|
Bicyclist deaths by helmet se, 1994-2009 |
|||||
|
|
No Helmet Use |
Helmet Use |
Total |
||
|
Year |
Num |
% |
Num |
% |
Num |
|
1994 |
776 |
97 |
19 |
2 |
796 |
|
1995 |
783 |
95 |
34 |
4 |
828 |
And so on through 2009.
The title implies the deaths occurred because cyclists did not wear a helmet. If you take two unrelated numbers and compare them, you can accomplish anything. For proof of this do a web search for “moon landings,” “Kennedy assignation,” and “World trade center,” for an interesting journey through made-up statistics to prove this point. Here they point out who died without a helmet compared to who died wearing a helmet and imply that everyone who died without a helmet died of a head injury.
Absolute fabrication of statistics to scare people!
Helmets prevent head injuries; helmets don’t save lives. If you are involved in an accident severe enough that a head injury will kill you, other parts of your body will be injured severely enough to kill you.
So let’s tackle these misstatements in the article.
As a bike storeowner, this gives you both an incredible opportunity – and a powerful responsibility – to upsell your bike customers and convince them to purchase a helmet and perhaps save a life.
As a retailer you have NO legal responsibility to your customers as far as educating them. You DO have a legal responsibility to educate them correctly if you do educate them. Whether or not you have a moral or ethical responsibility is something you must deal with and a risk you must accept. That risk evaluation also includes losing money by not selling accessories like helmets. However, it is shameful for this article to try to place a burden on a retailer for not selling a helmet.
Helmets do not save lives; helmets may prevent head injuries.
It’s your responsibility to inform your customers of the invaluable protection a helmet provides, the importance of wearing a safe helmet that fits well, as well as the dangers and statistics of cycling-related head injuries.
What is a “safe helmet?”
If you are going to use statistics to prove your point, then you better understand what you are saying. You cannot take two “stats” and compare them to prove a point when the numbers are derived from different sources or different factors. (A perfect example of this is the chart that went with the article).
According to the Insurance Institute for Highway Safety (IIHS), 91% of bicyclists killed in 2009 weren’t wearing helmets. The IIHS has estimated that wearing a helmet can reduce head injuries by 85%.
Just because a large percentage of people died who were not wearing a helmet does not mean you can then say those people died of a head injury. That is like saying 97% of the people in the US who eat ice cream do not get cancer. Only three percent of the population gets cancer anyway. However, that statistic is 100% correct and 100% meaningless, just like the statistics in the article. (However, you can use this statistic to eat more ice cream if you want.)
In the United States, the Consumer Product Safety Commission (CPSC) regulates helmet law.
This is the second time I’ve seen this in the past couple of months. NO! The CPSC is tasked with eliminating dangerous products. If a helmet is not doing what you say it is supposed to do AND there is the possibility of injury, then the CPSC can become involved. There are no federal helmet laws. The CPSC is a federal agency. There are some state helmet laws and some federal regulations concerning helmets. Those regulations are all based on a product meeting the tests of either a testing organization (ASTM, ANSI, etc.) or private non-profit organizations that test helmets (Snell).
…-keep a helmet in shambles from a crash on display and include a testimony about the life it saved…
These numbers also lead one to believe the people died because the cyclist was wrong and not wearing a helmet. However, that is not true either. Cyclists die when vehicles hit them. If the speed of impact is greater than 30 to 40 mph, the cyclists have almost a zero chance of surviving the impact. (See Zone 30 and Pedestrian and Bicyclist Intersection Safety Indices.) Distracted drivers, drivers not paying attention, drivers who don’t care kill cyclist with or without a helmet. See Sharing the Road With Bicycles for more examples.
Do Something
Why is this important? Because consumers do trust and believe retailers as the article points out. If you provide consumers with information which they rely upon in making a purchase which is incorrect and results in an injury you are liable. The manufacturer is going to walk away from this lawsuit without paying a dime. This is a lawsuit the retailer alone must fight.
The retailer made a misstatement that the consumer relied upon to the consumer’s detriment.
This helmet will save your life. The cyclists die of a head injury, and the retailer is writing a check.
You have to educate the consumer; however, when you do that you need to know what is correct. You cannot give the consumer incorrect information. You need to tell the consumer helmets prevent head injuries. No one knows, and there is zero proof that helmets save lives. In fact, the opposite is true. Looking at injury and fatality reports, helmets do nothing to save lives.
What is bad about this article is the fact the article was written by a helmet manufacture and published by an industry magazine. The magazine failed its readers because it published an article without checking the facts in the article. The manufacture that wrote the article is selling helmets based on made-up statistics and facts to promote fear.
Cheap journalism is bad journalism.
On top of that are we helping cycling? If you are trying to sell a helmet to someone based on fear, are we helping the sport? Or are we telling parents that cycling is too dangerous for their kid? Is that how you want to sell cycling; this is a dangerous sport, so spend another $100 with me?
Studies show that using fear or laws to scare people into using helmet’s results in less people cycling. See Cyclists Without Helmets Deserve to Die, Doctors Argue Against Mandatory Bike Helmet Laws or Liberty or death; don’t tread on me.
What do you think? Leave a comment.
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Law requires helmets, injuries down fatalities up?
Posted: April 23, 2012 Filed under: Cycling | Tags: bicycle, Bicycle helmet, British Columbia, Canada, Cycling, Cycling Helmet, Head injury, Helmets, Law Leave a commentHowever the article eventually does explain some great ideas about helmets.
An article Injuries have dropped since mandatory rule came in, but fatalities remain the same was written to look at the effects of a mandatory helmet law in British Columbia, Canada. The law was enacted in 1996. Riding a bike without a helmet can get you a $40 ticket.
One part of the article says that fatalities are down. The article also states:
Statistics compiled by the Bicycle Helmet Research Foundation show that injuries from cyclists involved in collisions did decrease from 35% of all police attended collisions in 1995 to 31% of those collisions by 1999.
However, a Canadian ministry says that bicycle fatalities have not decreased. “However in 2010, the Superintendent of Motor Vehicles admitted that fatalities had not decreased since the introduction of the helmet law.”
The article then states:
Bicycle helmet proponents are the subject of a great number of myths and exaggerations, some of which feature prominently in the promotion of helmets, according to the foundation.
These proponents claim that helmets prevent 85% of head injuries and 88% of brain injuries. But the foundation claims that where helmet use has become significant, there has been no detectable reduction in head injuries relative to cycle use.
Another myth, according to the foundation, is that bicycle helmets prevent 90% of fatalities.
“This prediction comes from a single source and is not reflected by real-world experience. Fatality trends in countries where helmet use has become significant give no reason to believe that helmets have saved even a single life,” the foundation states at http://www.cyclehelmets.org.
The article is full of confusing facts. However at least the article tackles the issues concerning helmets and dispels a few myths.
I suspect that injuries are down; however attributing that to helmets is difficult. Why injuries are up, could just be a factor of more people riding bikes, bikes that enable riders to go a lot faster or more cars on the road, as well as any number of different reasons.
Bicycle helmets may prevent a minor head injury, however most people do not believe that helmet may save your life.
What do you think? Leave a comment.
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Lazer Sport Press Release – Lazer Sport launches new website for 2012 along with “Love Lazer” Official Helmeteer Contest!
Posted: March 16, 2012 Filed under: Cycling | Tags: google, Helmets, Lazer, LazerTag Leave a comment
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Great article on why helmet laws are stupid
Posted: December 14, 2011 Filed under: Skiing / Snow Boarding | Tags: Helmets, legislation, skiing, statute Leave a commentEither that or we should be wearing helmets at dinner.
Yes I know I write a lot about helmets. However the most important issue I write about is to make people think about what they do and why. In this case you are not solving any problems and you are creating greater liability issues.
The article was written because a new law in Nova Scotia requires skiers and riders to wear helmets. The law carries a $250 fine. On top of that, there “will, indeed, be helmet cops on the slopes. The minimum fine is $250.”
The head injury rate is pretty low. “…since 2000, 11 helmetless skiers and snowboarders have suffered such an injury on the slopes of Nova Scotia.” That is one head injury per year in Nova Scotia from head injuries.
Simply put the article looks at the risks of a head injury in Nova Scotia from skiing based on the injury stats of Canada.
In 2003-04, one in 4,100 Canadians was admitted to hospital for head trauma suffered in a fall, and one in 5,300 for head trauma suffered in a car accident. Bill 131 proposes to offset, by 60%, a risk of roughly one in the population of Nova Scotia, which is 945,000.
If you want to stop head injuries, you would legislate wearing a helmet while driving. That would prevent more head injuries.
The articles intent is to point out there is no logical basis in the way laws are created. Instead of asking “why” they need a new law, legislators are asking “why not.”
Or as I say, what can I do, no matter how stupid, that will put me on the front page of a newspaper to help me get reelected.
It’s a great article. See Why not enact pointless ski helmet law?
What do you think? Leave a comment.
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ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp
Posted: March 7, 2011 Filed under: Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Church Camp, Expert Witness, Helmets, Litigation, Standards, Youth Camp 2 CommentsThis case shows how standards, written by a great organization with good intentions can be used to help, encourage and support lawsuits against its own members.
This case was settled, but it is full of information that everyone who may be a defendant needs to understand.
This case was started by a woman, the plaintiff, more than five years after she had spent a couple of weeks at a summer camp. She was not a camper nor was she working at the camp. She had been invited out by a staff member to give her a break from home. Allegedly, she was (consensually although there may have been statutory issues) sexually assaulted by an older staff member. She sued the staff member and the camp.
The plaintiff, to support her position, hired an expert witness. This is a common practice to support a claim. The expert witness’s job is to prove the defendant camp had acted in violation of the standard of care for camps. The plaintiff’s expert was an ACA standards visitor. The Expert Opinion by the ACA standards visitor was used in the plaintiff’s motion to support a claim that the defendant Camps actions warranted an award of Punitive Damages.
Punitive damages, are damages awarded by the jury above and beyond actual or compensatory damages. The damages are meant to punish the defendant. Punitive damages are not covered by insurance, are not dischargeable in bankruptcy and are in addition to any other damages. The defendant must pay punitive damages, if awarded, no matter what. Consequently, if the court approves the motion to ask for punitive damages in a case, it almost always forces the defendant to settle for fear of having to pay money out of their own pocket. The facts are never thoroughly litigated because they fear of the punitive is overriding. Even if you are 100% right, you may still settle in if punitive damages is a real threat.
The expert for the plaintiff (no relationship to me) was listed as an expert because she was an American Camp Association Accreditation Standards visitor. The experts Resume listed her ACA membership and her ACA Associate Visitor status second only to her education. The “Standards” allegedly violated were the 1998 ACA Accreditation Standards for Camp Programs and Services.
The expert opinion listed five areas that the camp had violated the standard of care for camps. Those areas are listed in the report as Opinion 1 through 5. ACA standards were used to support the expert’s opinion in three of the violations.
The first opinion rendered was the defendant camp violated the then ACA Accreditation Standards – HR-10. HR-10 states no camp staff member is to be under 16 years of age. The plaintiff at the time she was visiting camp was 14.
The first issue is the standard was applied to a fact situation that really had nothing to do with the claim. However, because there was a standard that could be linked to the claim, no matter how remote, the standard was alleged to be violated by the defendant. The plaintiff in this case was not a camp staff member, was not a volunteer, and was not getting paid. She was there for a break from her family. Nevertheless, the standard was applied to show the defendant camp should be held liable for punitive damages.
The second issue is the standard created by the trade association that the camp was a member of, was used to show the camp was negligent. That is just wrong!
Opinion 4 stated that 4 ACA Camp Standards were violated:
HR-11 requires six days of pre-camp staff training of employees.
HR-12 required late hire training for employees.
HR-13 requires implementation of in-service training for employees.
HR-19 requires specific training for staff supervisors to maintain staff performance and address inappropriate staff behavior.
The plaintiff had not received any training. I’ve never seen a camp train any visitor. (Although I’m sure you wish you could sometimes!)
All four “Standards” were violated because the plaintiff did not receive any of the training required by the ACA “Standards”. Again, visitors to camp need to go through training? Late hire camp staff training? Hire usually means someone is employed, consequently, paid, which never occurred here.
Opinion No. 5 stated the defendant camp violated ACA Standard HW-19 and ACA Standard HW-20 on the proper system of health care camp record keeping. This was alleged because a cut the plaintiff received was not recorded in the nurse’s log.
What is so interesting about this issue was there was no allegation that the cut the plaintiff had received was received or treated negligently. Nothing in the lawsuit claimed the way the plaintiff received the cut, the first aid or treatment was negligent. The complaint just stated she received a cut and was taken home by her parents. The suit claimed that an older camp staff employee had sexual relations with the plaintiff.
However, this is a perfect example of how plaintiffs use any violation of the standard, whether or not it has anything to do with the claim, to make the defendant look bad in the eyes of the court and the jury. Good defendants do not violate standards. Here the defendant was obviously bad because the standard was not met.
There is no way that any camp can operate and not violate one of the “Standards” at some time during the camp season! 1998 there were just too many of them. In 2011 there are even more.
To support the allegations made in the plaintiff’s expert report copies of the “Standards” were attached to the report. The following pages were attached to the report:
Cover Page
Title Page
Table of Contents vii
Table of Contents viii
Page 92 HR-10 Staff Age Requirements
Page 93 continuation of HR-10 and HR-11
Page 94 continuation of HR-11, HR-12 and HR-13
Page 97 HR-18 and HR-19
Page 98 continuation of HR-19 and HR-20
Page 67 HW-19 Recordkeeping
Page 68 HW-20 and HW-21
Why only those pages? Because those are the important pages the plaintiff wants the judge to see. There are limits to how big motions can be how many pages the judge will read, pages, etc. Those are all valid arguments and are real for only putting in the important documents as exhibits.
However “standards” are written with disclaimers and limitations and definitions, none of which are ever given to the court. The court is never shown that there may be limitations to what the “Standards” mean or how they are applied.
Even if those were supplied, the court must apply the definitions that are in the statute or by law first and then as used in the community or industry second. See Words: You cannot change a legal definition.
Trade Associations write standards with the mistaken believe that the plaintiff’s experts and the court will apply the standards exactly the way the standards are intended to be written. The facts are once the standards are printed the trade association loses all control no matter how many pages of disclaimers are put in the information.
So the judge in this case, who is pressed for time, reads the report and has a list of standards that are violated. A standard is the optimum word. The camp was below the minimum level of acting or not acting that was set by the camps own trade association. That is all that is needed to keep the case moving forward. Standards were violated. Therefore, there may be negligence. That must go to a jury, there must be a trial and the cost to the defendant (and its insurance company) climbs even higher. (Consequently, your premiums increase also. See Insurance 101 if you don’t fully understand this.)
Even if the additional documentation is put into evidence, the legal definition of the words is going to be used, not how the word is defined in the standards book. See Words: You cannot change a legal definition.
Nor does the court have the opportunity to delve into the standards to find out that most of them are not really standards but suggestions, ideas or just good practices. However, by identifying the book as standard there is a legal definition applied to the work that is just as dangerous as it may be helpful.
Some might say that if the camp was bad then lawsuits get rid of bad camps (or other defendants). However, that never works. This camp did not close up. In fact, in my opinion, this camp was sued because it tried to help out a confused young woman. The end effect is there will be no more attempts to help anyone in the future.
The only real consequence of this lawsuit was the amount of time that spent working on the case. Some money might have moved between the parties, and the attorneys and expert witnesses made money.
Let’s look at the opinion no 1 of the plaintiff’s expert witness. The standard says that employees should not be under the age of 16. Most camps are run by families. Many times there may be two or three generations at the camp. If a staff member sends their 15 year old son to the tool shed to get a tool and in the process the son accidentally knocks over a camper, injuring the camper, the camp has violated that standard. No 16 year olds should be hired by a camp. However, he wasn’t hired. Well, we’ve seen how that does not work, and he was working, providing a benefit for the camp.
The camp has a couple of options.
1. Not allow their children at camp until they are 16.
2. Violate the standard.
You are going to take your kids to camp and have them play video games and watch TV or are you going to put them to work. If you put them to work before they reach the age of 16 you are violating a standard created by a trade association for your benefit.
Say you are an organization that works to install leadership, training and teamwork into the youth. It is common in your organization for the youth to be responsible for other members. (Sound like any organization you know?) Your camps are staffed predominantly by youth because of the training and goals of the organization. Every single one of those camps is in violation of the standard HR-10 (as it was in 1998).
If your youth organization is focused in leadership training and does that by helping youth move up to more advanced and important leadership positions, the entire program will fail if you say to the 14 year olds, wait two years until you turn 16 to move up to the next level, camp staff.
These are just two scenarios where the standard set forth in HR-10 (which is almost identical in the latest version) can be used to sue a camp every single day of the year. However, in both scenarios, nothing has been done wrong other than taking your kid to work and following your youth program guidelines.
Are all standards bad? No, standards for things are great. Concrete “acts” the same way every day. A fight with a spouse, traffic on the way to work, rain, none of this affects concrete. It is going to support XX thousands of pounds of weight. Standards for things work. People and how people operate are subject to millions of things, weather and other people. We don’t’ react the same way. We aren’t affected the same way. We don’t respond the same way, who can you write something down that says we will, no matter what.
For other articles about standards see:
This is how a standard in the industry changes…..but….
Can a Standard Impede Inventions?
Words: You cannot change a legal definition
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent
The motion where the expert witness’ report was filed is here.
What do you think? Leave a comment.
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Recreation Law 