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

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

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

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

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

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

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

                                              Table of Contents

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

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

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

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

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

Chapter 13    Rental Programs

Chapter 14    Insurance

         $99.00 plus shipping

 

 

 

 

Artwork by Don Long donaldoelong@earthlink.net

 


Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

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

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

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

                                      Table of Contents

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

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

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

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

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

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

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

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

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

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

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

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.

Attempts by the plaintiff to re-characterize stands and racks did not get past the judge. However, in many cases, the way a plaintiff casts a product can later define how the jury sees the case.

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

State: Mississippi, Court of Appeals of Mississippi

Plaintiff: Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser

Defendant: Wal-Mart Stores, Inc.

Plaintiff Claims: Premises Liability

Defendant Defenses: No duty

Holding: For the Defendant Retailer

Year: 2015

This is a screwy little case, but worth the effort. A family, Step-Father, mother and two sons went into a Wal-Mart to buy a basketball. While there, the two sons walked over to the bicycle aisle and proceeded to ride two bicycles they found through the aisles.

One brother, in attempting to put a bicycle back in the rack, slowed down. The other brother was not used to hand breaks, maneuvered around the brother riding into a shelf where he suffered a cut on his leg.

They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches.

Of note was the statement that the employee assigned to the area was absent and there were no signs posted prohibiting the use of the bicycles.” (So bars now need to put up signs no drinking from the tap without paying for the product first?). The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”

The defendant was ten at the time of the injury so whether or not signs were posted probably would not have made a difference. And it seems that allowing children to ride bikes through the aisles at Wal-Mart in Mississippi is a common practice, which sort of blows my mind.

The injured child’s mother filed a lawsuit on his behalf, since he was a minor, and sued Wal-Mart based on a premise’s liability theory. Wal-Mart filed a motion for summary judgment stating there was no genuine issue of material fact showing that there was a dangerous condition that Wal-Mart should have warned about.

The motion was granted, and the plaintiff appealed the decision.

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

The court first looked at the premises’ liability law that the plaintiff claimed had been breached by Wal-Mart. To prove his case the plaintiff must show that he was an invitee, the duty owed to him based on his status and whether Wal-Mart breached that duty.

Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured. 

Because the plaintiff was there with his parents to purchase a basketball, he was defined as an invitee. As such, the duty of a land owner (or retailer) was to keep the premises reasonably safe and when not reasonably safe, to warn of the hidden dangers. If the peril were in plain and open view, there is no duty to warn of them.

To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].”

Is a bicycle on display at a retailer a dangerous condition? The plaintiff argued the bicycle should have been locked up so the plaintiff could not ride it. The bicycle was not in a rack at the time the plaintiff found the bike.

He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

The plaintiff then characterized the rack that the bike should have been in as a “safety rack.” However, the court caught on to that maneuver and reviewed the operation of the rack and the manufacturer’s description and found the rack was designed only to hold bikes, not to prevent them from being moved.

Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp

The plaintiff argued that since the bikes would be difficult to remove from the rack, an employee would need to be there to make sure the bikes were removed properly and only when allowed.

However, the entire argument failed. No employee was stationed at the rack to guard against removing bikes. Other children rode bikes in the aisle without incidence, which indicated there was no real danger and no evidence of a standard was presented indicating a requirement to lock up bikes on the show floor.

Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to.

The plaintiff then argued a higher duty was owed to the plaintiff because he was a minor. However, the duty owed under a premise’s liability act does not change due to the age of the invitee. The plaintiff also knew how to ride a bicycle and learned at the age of five. The plaintiff had also been involved in numerous bicycle accidents prior to the one that injured him at the retailers’ premises.

An unlocked bicycle was found not to present a dangerous condition such that a warning had to be posted by the retailer about the risk to the consumers.

So Now What?

The first issue which was handled quickly by the court was the attempt by the plaintiff to characterize something as different than it actually was. By calling the bike rack a safety rack the plaintiff could place in the juries mind a requirement that did not exist. It is important that these issues not be allowed to explode and create liability just because thclip_image002_thumb.jpge plaintiff miss-labels part of the case.

Another issue is the fact that parents allow their kids to ride bicycles through the aisles of stores, and the retailer does not put a stop to it. What if the plaintiff had hit another patron rather than a shelf?

As always, the issue of putting warning signs up so people who can’t read, can be protected always makes me wonder. Warning if you are unable to read this sign, please find someone to read it to you. Seriously the entire world is going to be nothing but signs if this continues.

Thankfully, the retailer was not liable for the actions of an inattentive parent for the injuries of their child riding a bike down a store aisle.

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Copyright 2016 Recreation Law (720) Edit Law

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Wal-Mart, Bicycle, Store Aisle, Premises Liability Act, Premises Liability, Invitee, Cycling, Dangerous Condition, No Duty, Failure  to Warn,

 


Article in Bicycle Industry & Industry News (BRAIN) points out major issues in not understanding when a retailer is liable.

Remember the “Ride Board” in college? People looking for rides and people going somewhere with cars would post on the ride board. College’s involvement was the board, nothing more. If you are more than a “board,” you may have legal issues as a retailer.

Bicycle Retailer and Industry News is the trade magazine for the cycling industry. One of their columns is titled Retail and asks several retailers a question each edition about a topic of importance. The September 1, 2015 issue, Vol. 24, Number 15, page 18, asked the question “Does your shop host group rides? Is liability a concern?

The answers from the retailers were all over the spectrum, as usual. However, what caught my attention was the lack of knowledge on where the liability boundary lies with retailers.

Below are quotes from the article and my response about what the liability may really be.

A.

“We have a weekly road rides that leaves from the store, but it’s just a starting point – the shop doesn’t really have anything to do with it.”

Hopefully, this statement is 100% correct. However, the issue is not what the liability is from the shops’ viewpoint but the liability from the customers and riders’ viewpoint. Do they see the shop as hosting the ride or does the shop just function as an address and parking lot?

Remember the ride board in college. It was usually a cork board with pins. People with cars going someplace looking for people to share gas or costs would post the info about their trip on the board. People looking for a ride someplace would also post their info on the board. If things matched a driver with a car got a rider for the trip.

The sole involvement of the college was the cork board, maybe pins and the 3X5 cards. The college did no go find drivers or riders. Consequently, the college’s involvement created no legal liability.

Legal liability attaches when you create a duty, an obligation to someone. That usually is not from your perspective but from the perspective of the injured party. Do the riders’ meeting at your store understand that you have no liability for the ride? That you are offering your packing lot as a service and that service ends when the riders walk out your door and leave on the ride.

A group ride where the retailer can’t be liable should probably be run the same way. In litigation, any involvement by the retailer can be interpreted as legally liable for the ride. Employees in kits from the retailer, employees organizing or leading the ride, or the employees telling customers about the stores rides might be enough to drag the retailer into court. Advertising the ride in a newsletter or online may create that misunderstanding in a rider.

Probably, retailers should jump in and get involved in the ride, have liability insurance to protect them from incidents on the ride and have a release signed or just put up a ride board. You are generating positive community feelings with the ride, which may be blunted by not telling anyone about them and telling those that show up you are not responsible for them.

B.

“A weekly group ride leaves from our store, but it is organized by the participants.  We also hope to have gravel/adventure and mountain group rides leaving from out shop in the near future.”

The issue here was the two different sentences in the quote. If the participants truly are running the ride and the store is just an address, then the store is probably not liable. However, the store created liability when it said, “we hope to have” other rides. If the store wants the rides, is the store liable for the rides? That could be an issue.

You can probably create a ride board like situation with your newsletter or website; however, that would require a disclaimer. Actively going out and getting people to show up for a ride probably places you in a different view from the people showing up for the ride.

C.

“Several of our structured activities, like an “Introduction to Mountain Biking” series, are led by a professional instructor who carries her own insurance for groups like this.”

This is one way of avoiding liability but only if you go the extra steps.

1.     The professional leading the rides MUST list the store on her insurance policy as an additional insured. Just because she has insurance does not mean the insurance will cover the store. If the store is found to have something to do with the ride, only if the store is covered as an additional insured will the instructor’s insurance be of any help.

The rider can have insurance and defend any claim but the store maybe left holding the bag. The professional’s insurance will not cover the store, unless there is an agreement, naming the store as an additional insured, to do so.

Just because one of the two possible defendants has insurance will not protect the one without insurance. If the injury is great enough or the medical bills large enough, the injured party, their insurance company and their attorney will look to anyone who might be able to write a check for the damages.

2.     The professional rider should have a release that covers her and the store. That way, the instructor and the store and both protected rather than the injured consumer realizing the rider can’t be sued because of the release suing the store because they were not covered by the release.

Again if the professional rider has a release that protects her, the injured party may immediately turn to the store. The store is no covered by the release it makes the lawsuit against the store much easier. Small claims through many big claims will be started against the retailer than fight a release.

D.

“We try to keep a pretty chill attitude around the shop and events, and that tends to attract less litigious group of people.”

A large percentage of the lawsuits in the US are not filed by the injured person. They are filed by the injured person’s health insurer. Every health insurance policy, in fact, every insurance policy, has a subrogation clause. That clause allows the insurance company to file a lawsuit using your name to recover any funds from someone who may be liable for your injuries.

A rider, you best friend, is riding in your group rides. An accident occurs, and your friend is injured and spends a week in the hospital. Your friend’s health insurance policy looks at the facts and determines that your store was liable for the friend’s injuries and sues you. Your friend can do nothing to stop that lawsuit, unless he refuses the benefits under the policy and repays all the money the insurance company spent on his injury.

Not only is your shop at risk but so is your friendship.

The second big way this theory is destroyed is the surviving spouse. Facing life with no husband, no breadwinner with several kids a surviving spouse with no interest in cycling, and who saw your cycling shop as a money pit, might not have any qualms suing you.

The final issue is it might be money. If a customer becomes a quadriplegic or paraplegic, the cost of living is beyond anyone’s ability. Medical bills usually pass $5M, and future medical bills are usually more. Consequently, just living may force a cyclist now in a wheel chair or worse, to sue.

E.

“We do organize, collaborate on or host various endurance races, and for these we run the liability through a statewide organization that has a series of free events. These free races require a signed waiver to participate, and between that and the no-cash organization that keeps the series going…”

Just like the professional rider mentioned above the other party’s actions are not enough. The statewide organization should list the store as an additional insured on its policy and place the stores name on the release.

So Now What?

Events are a great way to get a retail stores name in front of the public and promote good will. They can be done with a minimum of money and mostly a lot of effort. The liability issues can be handled just as easily.

1)   Make sure your general liability coverage on your policy covers the events you want to have. The policy should cover events and activities away from the store, in the parking lot and in the store. If you have doubts contact your broker and get an email or letter saying you have coverage for the event or activity.

2)   Have a release created by an attorney to cover all the events you have that protects the store, the employees and officers of the store and anyone else that could be sued because of the event.

a)   If the release is being provided by a third party, someone else, make sure your store and your employees are covered by their release. Your store must have its name on the release.*

b)   At the same time, don’t have two releases. Several lawsuits have occurred where the plaintiff signed two releases and one or both releases were thrown out.  

3)   Make sure that anyone else that is part of the event and has insurance lists your store as an additional insured. Fights between insurance companies over whose insurance covers an accident can take longer and cost more than the original accident.

4)   Dependent upon the type of event and who is putting it on, you may want an indemnification agreement from the party organizing the event. An example would be a cyclist jumping over your store on a mountain bike. You are getting some PR from the event, but the liability far exceeds the PR value in some cases. The Organizer is making money and should be able to indemnify you if the rider is caught by a gust a wind and lands on spectators, someone’s car or the wrong building.

 

* Retailers forget that a release collects information. You can use the release to collect names and contact info for future marketing or promotions. Include in the release language that they give you the right to contact them.

 

Additional articles you may find helpful:

Protecting Your Bike Shop and Yourself When Hosting Events      

Insurance 101                                              http://rec-law.us/yw3HhI

RELEASE (Waiver) CHECKLIST                        http://rec-law.us/ZVVUtd

Release/Waivers: The basics, the very basics!   http://rec-law.us/AaqwqH

States that do not Support the Use of a Release       http://rec-law.us/1i5C6cN

 

Scott Chapin of Marsh & McLennan Agency who specializes in cycling insurance issues runs a blog about these issues: http://bicycleindustry.rjfagencies.com/Blog/ProtectionforShopRides.aspx

 

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, BRAIN, Bicycle Retailer and Industry News, Bicycle Retailer & Industry News, Retailers, Bike Stores, Events, Group Rides, Liability, Store Liability, Retailer Liability,

 


Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product.

The Passive-Retailer doctrine provides a defense for companies in the supply chain who have no hand, influence or part of the manufacturing process. The key word in the defense is the word passive.

Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

State: Utah, Court of Appeals of Utah

Plaintiff: Jamie Mcquivey

Defendant: Kim Yong Lung Industrial (KYL), which manufactured the helmet in Taiwan; Fulmer Helmets, which distributed the helmet throughout the American market; and White Knuckle Motor Sports, which sold the helmet

Plaintiff Claims: strict liability for defective design as well as negligence and failure to warn, Utah Product Liability Act

Defendant Defenses: Passive retailer defense

Holding: For the plaintiff

Year: 2014

The facts in this case are a little outside of the normal facts written about here. However, the defense in the case is rare and the opportunity to write about the case is important.

This case involves a helmet that failed during an ATV accident. The eight-year-old son of the plaintiff was riding an ATV when he crashed. His helmet cracked, and the helmet cut his face. The mother sued the Manufacturer, the importer distributor and the retailer.

The manufacturer and retailer were dismissed from the case leaving only the importer, Fulmer. The retailer was dismissed because “White Knuckle [retailer] had neither knowledge of potential defects nor influence over the helmet’s design, safety, or manufacturing.” The manufacturer was dismissed because it moved to dismiss for lack of personal jurisdiction.

The importer/defendant then moved to dismiss based on the theory that Fulmer was a passive retailer and could not be held liable for the defects in the helmet. The district court agreed and dismissed Fulmer. The plaintiff appealed that decision leading to this appeal.

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

The court first went through Utah Product liability law.

Under general principles of tort law, “as between an injured buyer of a product, and the seller of the product, the seller must bear the liability.”

Under Utah’s Product Liability Act, a “manufacturer or other initial seller” who sells an “unreasonably dangerous product” may be liable for resulting “personal injury, death, or property damage.”

Under Utah’s law, strict liability does not require proof of fault, only that the manufacturer sold a defective helmet.

The court then defined the Passive-Retailer Doctrine.

The passive-retailer doctrine creates an exception to strict liability under the Product Liability Act for “passive retailers”–sellers who do not “participate in the design, manufacture, engineering, testing, or assembly” of a product. Under this doctrine, “a passive retailer is not subject to a strict liability claim . . . where the manufacturer is a named party to the action.” The passive-retailer doctrine thus allows the trial court to dismiss a strict-liability claim against a codefendant when undisputed facts establish that no fact finder could, under principles of comparative fault, apportion fault to that codefendant. In this circumstance, “as long as [the actual manufacturer] is present in the suit, there remains no reason to require [a passive retailer] to incur the time and expense of defending” the action.

This is a defense for retailers, that has been adopted by a minority of states. It makes sense in today’s world of prepackaged products that are too complicated for the normal retailer to understand.

This decision found legislatures in Nebraska, Delaware, Idaho, Kansas, Iowa, Maryland, Minnesota, Missouri, North Dakota, Tennessee and Washington had adopted a variation of the doctrine. Courts in Texas, New York, and Oklahoma adopted  the doctrine.

In Utah, the doctrine only was used twice. However, in this case this court found the doctrine did not apply. The defendant Fulmer did more than merely import and sell the helmets.

The defendant’s name was on the helmets, and they were marketed as Fulmer’s helmets. Fulmer reviewed the design of the helmets, tested samples and made changes to the samples. Fulmer performed on-site visits to the manufacturing facility twice annually. Fulmer required the helmets to be manufactured to US DOT standards.

Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability, as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.”

This level of participation was found by the court to be more than passive. The court based on this review found the defendant importer did not qualify for the defense of the Passive Retailer doctrine and sent the case back for trial.

So Now What?

The product liability laws in the US were developed to protect people. That worked when everyone in the supply chain from the manufacturer to the retailer could identify a defect and stop the sale of a defective product. That time ended when we moved from a “general store” to the current marketing system we use today.

If you are a retailer, you should investigate if the Passive-Retailer Doctrine applies to you in your state. Find out what you need to do to make sure you understand the doctrine and how you must work to be afforded its protection.

If you are a manufacturer, you need to understand who in your supply chain may be subject to this defense and keep that in mind when dealing with everyone in your supply chain to keep the defense viable.

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

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When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence

Skier whose bindings did not release and possibly were set to high, could not prove that if his bindings did release he would not have suffered his injury.

Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684

State: Illinois

Plaintiff: Matthew Mack

Defendant: Viking Ski Shop, Inc. & Salomon North America, Inc.

Plaintiff Claims: defendant failed to make a reasonable inspection before selling the ski equipment to plaintiff, defendant failed to properly adjust the ski equipment, specifically the bindings, to plaintiff’s height, weight, and ski type.

Defendant Defenses: No proximate causation

Holding: for the defendants

Year: 2014

Remember there are four steps (in most states) to prove negligence.

·        Duty

·        Breach of the Duty

·        Injury

·        Proximate causation

Each of these points must be proven to hold a defendant negligent.

In this case, the plaintiff purchased skis, boots and bindings in Illinois before going skiing in Colorado. While skiing he fell suffering a knee injury, a tibial plateau fracture. The plaintiff’s bindings did not release during the fall. The plaintiff returned to Illinois and sued the shop that mounted his bindings and the binding manufacturer.

The plaintiff argued that the ski shop that mounted his bindings mounted them for a Type III skier, and he was a Type II skier. The ski industry has developed a skier identification program to determine a skier’s ability level. (See http://www.dinsetting.com/ for information on the different skier levels.) The better the skier the higher the skier identification on a scale of 1 to 3. A better skier has a higher DIN setting or the harder, more pressure needed, to release the ski boot from the binding.

The plaintiff hired an expert who testified that in his opinion, the binding DIN was too high. The defendant hired two experts who stated that if the DIN setting were too high, it still would not have mattered. The pressure needed to release the boot at either DIN setting, Skier Type II or Type III was greater than the pressure that would cause his injury.

The trial court agreed and dismissed the case based on motions of the defendant, and the plaintiff appealed.

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

The appellate court reiterated the requirements to win a negligence case. Illinois has adopted a three-step approach to proving negligence, basically combining steps 3 and 4 into one step.

In order to recover damages based upon a defendant’s alleged negligence, a plaintiff must prove that (1) the defendant owed the plaintiff a duty; (2) that the defendant breached the duty; and (3) that the breach was the proximate cause of the plaintiff’s injuries.

The court then looked at the requirements to prove proximate cause. Proximate cause has a fact component and a legal component. The factual component is determined by a “but for” test. “Cause, in fact, is established if the occurrence would not have happened “but for” the conduct of the defendant.”

Legal cause is based on foreseeability.

Legal cause, by contrast, is largely a question of foreseeability, and the relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. Furthermore, proximate cause must be established to a reasonable certainty and may not be based upon mere speculation, guess, surmise or conjecture.

Foreseeability is a difficult legal definition to the non-legal definition can suffice to understand the issues. Could the defendant have thought about the chances of something happening and was that more than mere speculation. Was it something that more than mere speculation could have brought to the speculation of the defendant.

Here the facts still fell below foreseeable. Even if the defendant was negligent and set the bindings incorrectly, the injury would have still occurred. Consequently, the cause, bindings set incorrectly, was not proximate to the injury.

In addition, even if we take Leffe’s testimony as true that defendants incorrectly set plaintiff’s bindings too high for his skier preference, plaintiff still fails to provide substantial evidence that if his bindings were at a lower setting his injury would not have occurred.

The appellate court upheld the trial court’s dismissal of the case.

So Now What?

This case was one because the defense team understood the factual and legal issues of the case and based on facts alone, proved the defendant was not liable. Having an attorney willing to take the time to understand and investigate all of the issues and an insurance company willing to pay for that time will allow the defendant in an outdoor recreation case to win 99% of the time.

Here the defense team kept asking questions until they fully understood the issues. The pressure needed to create a tibial plateau fracture was less than the binding release setting.

Hire a good attorney and take the time to educate your attorney in the facts of your case. Take them down the river, up the mountain or around the mountain on a mountain bike, so they understand all aspects of your business, what the plaintiff experienced and the particulars of your case.

Spend the money to equipment your attorney with a complete set of the equipment at issue in the case. Make sure they understand a forward stroke, a munter hitch and an ascender, or any other equipment at issue in the case. Have them play with the equipment, putting on the harness, releasing a boot from a binding or attaching a PFD until they understand all facets of the equipment.

Then your lawyer can investigate the case to use the best defense available for you.

What do you think? Leave a comment.

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

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