One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

This judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

State: Florida: United States District Court for the Northern District of Florida, Panama City Division

Plaintiff: Brian Moore

Defendant: North America Sports, Inc., USA Triathlon

Plaintiff Claims:

Defendant Defenses: Assumption of the risk, Release

Holding: for the Plaintiff

Year: 2009


Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.

Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.


The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.

During the swim portion of the triathlon the deceased experienced distress and died three days later.

His survivors filed this lawsuit.

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

The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.

When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.

The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.

Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.

The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.

The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.

Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.

However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.

The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.

Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.

The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.

So Now What?

Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.

I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.

Check Boxes in a Release are landmines waiting to explode.

Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.

It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.

That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.

Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.

Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.

What do you think? Leave a comment.

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February 2018 UIAA Newsletter, Please Subscriber to keep current in the Mountains!


The UIAA newsletter. February 2018


The UIAA Newsletter. February 2018.

In Brief

The UIAA Alpine Summer Skills guide is now available worldwide as a digital download. In the field of mountain safety, the UIAA and the Indian Mountaineering Foundation (IMF) publish recommendations related to The Chadar Trek. The use of portable hyperbaric chambers is the subject of the UIAA’s latest medical advice profile. In Asia, the reputation of the UIAA Safety Label continues to develop in an rapidly expanding market. The 2018 UIAA Ice Climbing season concludes this weekend in Kirov, Russia following a busy season of World and European Cup events. Newsletter subscribers have the opportunity to enter a competition to win a signed copy of Doug Scott’s latest book – The Ogre. The most recent member association to join the UIAA – Malta Climbing Club – comes under the spotlight. The 2018 UIAA Mountain Protection Award opens in late March coinciding with a special ceremony to commemorate 2017 winner Mount Everest Biogas Project (MEBP).

AVAILABLE TO PURCHASE AS DIGITAL DOWNLOADThe UIAA Alpine Skills Summer guide was first published in 2015. Produced in collaboration with the Petzl Foundation, the guide and has been well received worldwide and is currently available in five languages. To mark the launch of a digital version of the publication, the UIAA is running a series of articles from the guide designed to help hikers, climbers and mountaineers develop their skills and knowledge of the mountain environment.

The guide was developed specifically as a reference document for trip leaders and instructors of club and federations within the UIAA – an aide memoire for climbers and mountaineers who attend training courses delivered by instructors and guides who have gained qualifications accredited by the UIAA. Now open to the wider climbing and mountaineering world, the handbook’s four modules focus primarily on summer activities. Full story here

The digital edition of Alpine Skills: Summer, a downloadable application which permits free updates to content, can be purchased here.

APPLICATION OPENS ON 24 MARCHApplication for the 2018 UIAA Mountain Protection Award will open immediately after a special presentation is held in Kathmandu, Nepal for Mount Everest Biogas Project (MEBP) winner of the 2017 Award. A dedicated press conference will also be held in Nepal to showcase the Award and will feature representatives from the MEBP and the 2015 winner KTK-BELT Studio. The press conference coincides with the UIAA Management Committee meeting, held from 23-24 March. Details on the press conference, and how to apply for the 2018 Award, will be available shortly.


An enthralling 2018 UIAA Ice Climbing World Tour, partnered by The North Face Korea, concludes in Kirov, Russia this weekend with the final act of a dramatic season. The quest to be World Tour champion across both the male and female lead and speed competitions is still wide open. A preview of the season finale will be available to our ice climbing news subscribers tomorrow. Livestreaming will be available on the UIAA Facebook, Twitter and YouTube channels, on the Olympic Channel, and on partner channel EXTREME. To subscribe to ice climbing news please click here.


An inspirational image of UIAA Honorary Member Jordi Pons Sanginés, 85 years old, ice climbing on Pedraforca (2,506m) in the Pyrenees. The area is a noted paradise for rock climbing, with limestone walls up to 800m high. In the winter several ice falls form, making this spot – some 150 km from Barcelona – a perfect location for ice climbing training.Full picture on our Facebook page.

ESSENTIAL SAFETY ADVICEIncreasingly popular as a trekking destination among both Indian and international adventurers and tourists, the Chadar Trek, an ice passage across a fast flowing river in the Zanskar region of Ladakh, is also a route which presents a number of safety concerns.

With the aim of providing anyone planning on crossing this magnificent ‘ice highway’ with greater safety information, the UIAA Training Panel, with the support of the Indian Mountaineering Foundation (IMF), has provided the following information related to the prevention of accidents and dealing with unforeseen situations. This advice is also available on the IMF website. Full story here.

AT THE CROSSROADS OF THE MEDITERRANEANAt the 2017 UIAA General Assembly, the International Climbing and Mountaineering Federation welcomed its latest member. With the election of the Malta Climbing Club (MCC) as full member, the UIAA now represents 91 member associations from 68 countries.

The MCC was set up in 2010, a time when in Malta there was no truly representative climbing organisation. “It was felt that the sport needed a structure which in addition to promoting the sport locally, would also work towards providing local climbers with the support and services that climbers now often take for granted in their own countries all over the world,” explains the federation’s President Simon Alden. Full story here.


At a series of meetings and tradeshows in China, the UIAA Safety team discuss the promotion and development of the UIAA Safety Label and Standards in Asia. A guide on when, and how, to use portable hyperbaric chambers is the topic of the latest UIAA MedCom article. Rock Climbing Festival organisers from Central and South America are invited to apply for the 2018 UIAA Rock Climbing Awards, with cash prizes of up to 5,000 CHF on offer. Registration for UIAA Youth Events in Fontainebleau, France and Iran is open.

2-4 March
Kirov, Russia
23-24 March
Kathmandu, Nepal
23-24 March
Kathmandu, Nepal
The UIAA was founded in 1932 and has 91 member associations in 68 countries representing about 3 million climbers and mountaineers. The organization’s mission is to promote the growth and protection of climbing and mountaineering worldwide, advance safe and ethical mountain practices and promote responsible access, culture and environmental protection.

The organization operates through the work of its commissions which make recommendations, set policy and advocate on behalf of the climbing and mountaineering community. The UIAA is recognized by the International Olympic Committee (IOC).

c/o Schweizer Alpen-Club SAC
Monbijoustrasse 61 Postfach CH-3000
Bern 14, Switzerland
Tel: +41 (0)31 370 1828news



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.

Still 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.


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.

The challenge was for an “Energy Management Material Solution.” Over 125 companies applied, and only 5 were chosen as finalists and awarded $250k to work further. One winner. The other companies were never disclosed.

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.


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.

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

Copyright 2017 Recreation Law (720) 334 8529

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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,, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, 6D Helmets, Helmets, Concussions, Technology,

A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.

Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484

State: Colorado, United States District Court for the District of Colorado

Plaintiff: Linda Schlumbrecht-Muniz, M.D.

Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT

Plaintiff Claims: negligence, negligence per se, and respondeat superior

Defendant Defenses: Colorado Skier Safety Act

Holding: for the Defendant

Year: 2015

The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.

The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.

The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.

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

The court first looked at the requirements necessary to properly plead a claim.

“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”

This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.

The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…

Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.

Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:

Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.

The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.

Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.

The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:

…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.

In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.

I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.

The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”

The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.

Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”

Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.

Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”

The final claim was based on respondeat superior.

Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)

Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.

So Now What?

This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.

What do you think? Leave a comment.

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Allen Sports Recalls Folding Bicycles Due to Fall Hazard

Name of Product: UltraX and Ultra1 Folding Bicycles

Hazard: The bike’s frame can break during use causing the bicycle to collapse, posing a fall hazard to consumers.

Recall Number: 18-108

Remedy: Refund

Consumers should immediately stop using the recalled bicycles and email Allen Sports at with photo of the bicycle to receive full refund instructions.

Consumer Contact: Allen Sports at 800-722-5536 between 8 a.m. and 4 p.m. ET Monday through Friday, or email and online at and click on “Important safety notice on Allen Sports Ultra1 and UltraX Folding Bicycles” for more information.

Pictures available here:

Units: About 150

Description: This recall involves Allen Sports model Ultra1 and UltraX carbon fiber folding bicycles. “ULTRA X” or “ULTRA ONE” are printed on the bicycle’s frame. Both bicycles were sold in black, have 20 speeds and wheel sizes of 451MM. The Ultra One weighs about 21 pounds and the Ultra X weighs about 18 pounds.

Incidents/Injuries: The firm has received two reports of the frame breaking causing the rider to fall. No injuries have been reported.

Sold At: Online at and eBay from May 2014 through July 2017 for between $500 and $4,000.

Importer(s): The R. A. Allen Company, Inc. of Portsmouth, N.H., dba Allen Sports

Manufactured In: Taiwan

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

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By Recreation Law    James H. Moss

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I love Garmin Products; I really can get annoyed at Garmin.

January 20, 2018

I went for a bike ride today. I knew immediately that since my last ride @Garmin had updated my Garmin Edge 1000. Garmin of course would never tell you this. Heaven forbid Garmin could communicate anything.

No, I learned when nothing was synched. No heart rate, no cadence, no speed, I just had one big blank screen.

I really knew it had been updated when I stopped the tracking, went into sensors and tried to have the sensors’ sync with my Edge 1000. Well wouldn’t you know it the update worked so well it froze my Edge 1000. In the past, I’ve thought about carrying instructions with me on how to unfreeze my Edge 1000 because it happens so often, but I don’t. So, I finished my ride looking at a blank screen.

So, I had a great bicycle ride. Not sure how long I went, where I went, what my heart rate was, what my cadence was, if my heart rate changed with my cadence or hills, all those things, you spend $800 to know.

The last time this happened this bad was in June of 2017. The updates basically froze my Edge 1000 for a couple of weeks. Garmin never said anything, never admitted there was a problem, just kept putting out updates and screwing things up. I was able to confirm that Garmin knew about it later talking to a tech rep.

I write this looking at my Garmin Vivosport. It is sitting here on my desk, not on my wrist because it is dead. Not quite 60 days old and some update to either the Vivosport, my android phone or Verizon killed it. 87 minutes on the phone last night with a very nice Garmin tech, who eventually gave up, after waiting for a call back for over an hour.

Last night, was not my first night talking to #GarminSupport about my #Vivosport. Out of the box, it would not work. That was three hours total waiting and then talking to tech support just to get it to work the first time.

So less than sixty days old and I’ve got close to FIVE HOURS with Garmin Tech support for a $200.00 Garmin product.

So, two Garmin products on my desk, over a Thousand Dollars retail and neither of them are doing anything like Garmin advertised nor what I paid for. Bricks are a lot cheaper if I need a paperweight, and I doubt I’ll have a desire to throw the brick out the window.

I started counting how many Garmin Products I own now or have purchased for family members, and how many I have owned.

Currently, I own.

Edge 1000


Vivo something for girlfriend

Garmin Car Navigation (dad)

Delta Sport XC (Dog collars (2))

Golf device (nephew)

Garmin Edge 350

This Edge 1000 is my 5th Garmin cycling computer.

And honestly, I can’t remember what else I’ve owned. But that is a lot of Garmin products, too many to put up with this crap.

What do I want?

I want Garmin to tell me when they are updating my devices. That way, I know I can’t just grab them and go. I know I’ll have to wait for the update and grab my Garmin Sheets and spend an hour getting ready to go.

My Garmin sheets are a spreadsheet of what I want on m Edge 1000 for my various bikes: 2 road bikes and two mountain bikes. There is a lot of information to put back in after an update. Garmin says their updates don’t affect my information, but that is a load of crap. My Garmin sheets are four years old and get used at least once or twice a year. I use them so much I have a name for them!

You would think I would ask that the updates don’t turn my Edge 1000 into a just out of the box nightmare. However, I don’t think that will ever happen. They tell you that so much they must believe it. Sometimes you have to be realistic on what you hope for. I have a better chance of winning Powerball than Garmin updating a product and not screwing it up.

I want the updates to work. Not fry my Edge 1000 or make my Vivosport a paperweight. I never know why the updates are needed. I just don’t need them turning my devices in projects or paperweights.

I want a survey at the end of my two-hour phone calls with tech support to be something other than platitudes. Have you ever taken that survey? All it does is make you tell Garmin how great they are. Last night I hung up after the fifth question. The answers Garmin was going to get would only reinforce the marketing department egos, so they could do the same the higher ups. It was not going to provide relevant information about how bad the tech support really is. People on the phone are great, last night the tech person was extremely apologetic he could not get my device to work. But my vivosport still does not work.

I want my Garmin Products to work!

I wrote this article January 20, 2018. I contacted Garmin, I’ve tweeted Garmin and was told I never contacted Garmin. Then I was asked to supply my email address which I did.

January 26, 2018

So at the @OutdoorRetailer Tradeshow I mentioned this article. I also shared it with an employee of Garmin. Yesterday I received an email and a tweet from Garmin. The tweet clarified that my statement I contacted Garmin said Saturday and it was actually Friday when I was on the phone with them. That office I was on the phone with was closed Saturday so they were confused. My fault!

@Garmin did not have a booth at the Outdoor Retailer Tradeshow. Bad move. I always learn a lot at the tradeshows about my products and now that I know there is tons more to learn, I’ll probably show up with products in hand and questions to ask.

February 6, 2018

The email was followed up by a pretty high level person in the Garmin program who went through my issues. I learned a lot. All of which is not in any Garmin manual or on the Garmin website.

  1. Instead of charging my Edge 1000 on a charger, I should charge it on my computer. That way updates won’t be a problem in the future if I check on Garmin Connect right before I disconnect the Garmin. In the Upper Right Corner there is a little watch. If there is a blue dot, an update is available. If you have the app Garmin Express, a blue dot on your product in Garmin Express also means you have updates.

    1. There are a crap load of updates.
  2. My Vivosport is not really a brick. It can still record activity and will store it for a long time, I just can’t see it on my phone or Garmin Connect. Garmin Connect on my phone has a software issue with Verizon (my carrier) and the Vivosport. I’m not on a list to be notified when that changes. (I was told previously I was on a list…..)

    1. So now when I charge my VivoSport I charge it connected to my computer. I use Garmin Express and it updates the VivoSport and downloads the information.
  3. The people I’ve been on the phone with have always been extremely polite and worked hard to solve my problems. The person(s) tweeting can get testy.  🙂  But I suspect I can push them a little harder on twitter.

Are the problems solved? No. Do I feel better. Yes.  Do I have workarounds to my issues. I think but not all.

I still don’t know what I’m doing with my Vivosport during the day. Every 3 or 4 days when I charge it I can see what I did, but that is worthless. I could carry my Edge 1000 or Edge 350 and accomplish a lot more.  The purpose of a VivoSport is to learn throughout your day how and why and then change.  3-4 days later doesn’t help. So technically my VivoSport works, but actually, it is still a brick. I wear it on my arm because I don’t really have any paper to hold down.

Are the engineers who seem to run Garmin going to communicate more or better? I doubt it. If you are not an engineer or have hours to spend just clicking things you’ll never learn enough on how your Garmin products, Garmin Express or Garmin Connect work.

Thanks to the un-named employees who probably leaked my article upline. Thanks to the people who called and spent hours on the phone with my trying to help.

But the problems still exist. Garmin communicates like we are all engineers and only when pressed. I’m not an engineer. I also don’t have time to contact Garmin and spend almost 10 hours on the phone for a $200 product.  I have it on again and someday I hope to see what it says.

Still love my Garmin Products. But Garmin, as a company selling to consumers you suck…..still.

What do you think? Leave a comment.

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By Recreation Law    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,, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #Garmin, @Garmin, #Vivosport, #GarminSupport, #GarminTechSupport, Garmin Support, Garmin Tech Support, Garmin Edge, Garmin Edge 1000, #GarminEdge, #GarminEdge1000,

Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.

Defendant took plaintiffs on a guided personal watercraft tour with an employee/guide who had not been trained as required by Florida’s law.

Tassinari v. Key West Water Tours, L.C., et al., 2007 U.S. Dist. LEXIS 46490

State: Florida: United States District Court for the Southern District of Florida

Plaintiff: Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva

Defendant: Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff

Third Party Defendant(s): Jeffrey Wilkerson, Third-Party Defendant

Plaintiff Claims: Negligence Per Se

Defendant Defenses: : (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

Holding: For the Plaintiff

Year: 2007


If there is a statute that applies to your business or activity, you must know and abide by the statute. Failure to do so can void all of your defenses and in some cases the claim may not be covered by your insurance policy.

Here the defendant rented personal watercraft to the plaintiffs without instructing the guests as required by Florida Statute. By not abiding by the statute, the defendant’s defenses were void and the defendant’s liability was decided by the court.


The plaintiff’s, husband, wife and daughter paid for a guided personal watercraft (PWC or formerly known as jet ski) tour. During the tour, another tour participant panicked and drove his PWC at a high rated of speed into the plaintiff’s.

The plaintiff’s sued the defendant PWC tour company. The PWC tour company sued the participant who drove the PWC into the plaintiff’s as third-party plaintiffs versus third party defendants.

The defendants relied on four defenses:

(1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness;

(2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness;

(3) Florida statutory law does not apply; and

(4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.

The plaintiff argued that because the defendant did not hire or require it’s guides to meet educational requirements required by state law, the defendant was negligent per se.

Negligence per se is negligence that violates a law or regulation which was created for the purpose of protecting a group of people that were injured by the plaintiff.

The Florida statutes in question were:

Florida Statute § 327.39

§ 327.39. Personal watercraft regulated.

(b) 1. It is unlawful for the owner of any leased, hired, or rented personal watercraft, or any person having charge over or control of a leased, hired, or rented personal watercraft, to authorize or knowingly permit the watercraft to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.

The second statute was Florida Statute § 327.54

§ 327.54. Liveries; safety regulations; penalty.

(1) A livery may not knowingly lease, hire, or rent a vessel to any person:

(e) When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:

1. Operational characteristics of the vessel to be rented.

2. Safe vessel operation and vessel right-of-way.

3. The responsibility of the vessel operator for the safe and proper operation of the vessel.

4. Local characteristics of the waterway where the vessel will be operated.

Any person delivering the information specified in this paragraph must have successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.

The first statute required the person renting a PWC to instruct the renter on the use of the PWC. The second statute identified the instructions to be given and required the person giving the instructions to have successfully completed a boater safety course. The defendant’s employee in this case had not given the necessary instructions and had not completed a boater safety course.

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

Federal judiciary has a rule they apply to these situations called the Pennsylvania Rule. The Pennsylvania Rule states:

…when a ship at the time of an collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.

Basically, the Pennsylvania rule shifts the burden of proof from the plaintiff, who normally has the burden to proof the defendant was at fault, to the defendant, requiring the defendant to prove, it was not at fault.

The next hurdle is the state law’s relationship to admiralty law. Admiralty law is a Federal law, in fact, a series of international laws, to control transportation of goods and people across borders and international travel. States can only make laws concerning admiralty issues if there is not federal law on the subject already. If the federal law conflicts with the state law, the federal law applies.

Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident.

There is no federal law concerning the rental of PWCs. So, the two Florida statutes were available to the plaintiff. Additionally, the Florida statutes were created to protect a specific group of people, and the plaintiffs were part of the group to be protected.

These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.

Side note: the defendant co-owner admitted he was not familiar with Florida’s statutes that were at issue. The court’s response was the classic you learn in law school, and you should learn in kindergarten. “…ignorance of the law is not a defense.”

The defendant argued that instruction would have changed the accident or prevented the accident. The court did not buy that argument.

However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.

For the defendant not to be liable, the must be completely free of fault, and the violation of the Florida statute created fault on the part of the defendant; consequently, the defendant was not free of fault.

The defendant then argued the limitation of liability under admiralty law applied. The limitation of liability states the defendant is liable to the value of the vessel after the accident. Here the defendant argued the extent of their liability was $3,000 because that was what the PWC was worth.

For the defendant to use this defense, required a two-step test:

(1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.

Since the defendants could have easily investigated whether their employee had taken a boater safety course, and they did not, they could not take advantage of the limitation of liability because the defendant should have had knowledge of the unseaworthiness of the PWC.

The next defense argued was the release signed by the plaintiff. Here the release was void because it violated public policy. The statute created a safety requirement on the part of the defendant. The statute was enacted to keep the public safe. Therefore, failing to keep the public safe was a public policy issue.

[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.”

In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.

The defendant’s motion for summary judgement was denied. The plaintiff had filed a motion for summary judgment as to the liability of the defendant. That motion was granted. The sole remaining issue then was the amount of the liability, how much the defendant owed the plaintiff.

So Now What?

Releases are the best defense to lawsuits in most states. However, the most effective legal argument to void a release is to claim the defendant was Negligence Per Se. Here the court found that because the statutes were created for public policy reasons, the release violated public policy and thus was void.

Most state courts just void the release stating the release cannot prevent claims based on violation of a statute.

More importantly, any time a statute is created that applies to your business or activity, you must understand and follow the statute. Both statutes argued above had criminal penalties for violation of the statutes. Not only was the defendant liable in a lawsuit for violating the statutes, the defendants could be fined by the state.

Don’t get into business without knowing the law.

More articles on Negligence Per Se

Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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


If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law


© 2018 Recreation Law    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,, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,